Restraining Orders on Acquittal Must Comply with CrimPR 31 Evidence/Hearsay Notice Requirements (and Procedural Unfairness Will Quash the Order)

1) Introduction

DFB, R. v [2026] EWCA Crim 399 is a Court of Appeal (Criminal Division) decision concerning the making of a restraining order on acquittal under section 5A of the Protection from Harassment Act 1997. The appeal arose after the prosecution offered no evidence on serious allegations (including multiple counts of rape and coercive control) following the complainant’s withdrawal of support for the prosecution, while maintaining in her withdrawal statement that her prior accounts were truthful.

Despite the acquittal, the Crown Court made a restraining order (initially for five years, later varied and re-made for four years). The complainant did not attend the hearing at which the original order was imposed. The appellant contended that the process was procedurally irregular and unfair, principally because the Crown did not properly identify and serve the evidence relied upon, and introduced hearsay without the notice required by the Criminal Procedure Rules.

The judgment also reiterates that the Sexual Offences (Amendment) Act 1992 anonymity regime applied, restricting publication of material likely to identify the complainant.

Key issue

Whether the restraining order imposed after acquittal was vitiated by procedural unfairness, given non-compliance with CrimPR Part 31 (including evidence identification and hearsay notice requirements), and whether later variation of the order cured any initial unfairness.

Parties

  • Appellant: DFB
  • Respondent: The Crown (CPS)

2) Summary of the Judgment

The Court of Appeal allowed the appeal and quashed the restraining order. It held that the order was made in circumstances that were procedurally unfair because the prosecution did not follow the structured process required by the Criminal Procedure Rules when seeking a restraining order after acquittal in a case where no evidence had been called at trial.

The Court accepted that the complainant’s withdrawal statement was “powerful evidence” and that the order’s terms “make very good sense” on that material, but concluded that fairness and the Rules required more: the appellant had to be given proper advance notice of the evidence said to establish necessity, including compliance with hearsay notice provisions where hearsay was relied upon.

Crucially, the Court held that the subsequent variation of the order did not remediate the procedural unfairness at the outset. It noted that, following quashing, it would be for the CPS to decide whether to bring a fresh application under s.5A.

3) Analysis

A. Precedents Cited

i) R v Picken [2006] EWCA Crim 2194

How it was used: The appellant relied on R v Picken [2006] EWCA Crim 2194 to argue that a restraining order should not be granted without evidence of the complainant’s wish for one and without necessity being properly set out.

How the Court treated it: The Court distinguished Picken on its facts and scope. It emphasised that Picken did not establish a rule that a restraining order cannot be made without “positive evidence” of the complainant’s expressed desire for an order, nor that complainant consent is a precondition. In Picken, the problem was that the judge had made the order without knowing the complainant’s position at all, and should have adjourned to find it out. In DFB, the sentencing judge believed he did know the complainant’s position (principally via the withdrawal statement and what was said about police contact), but the fairness defect lay elsewhere: the process for identifying and serving evidence (including hearsay) was not properly followed.

ii) John Baldwin [2021] EWCA Crim 703 (and R v Baldwin [2021] EWCA Crim 417 as cited)

Central influence: The Court treated the guidance quoted from John Baldwin [2021] EWCA Crim 703 as directly applicable. The judgment in DFB adopts Baldwin’s framing: s.5A orders are imposed after acquittal, are civil in nature, and must be based on evidence with procedural fairness ensured through CrimPR 31.

Key points imported from Baldwin:

  • A restraining order on acquittal does not reflect guilt; it is concerned with future risk of harassment.
  • The court must not ignore the statutory requirement of necessity (“necessary … to protect a person from harassment”).
  • The defendant must have the opportunity to consider what order is proposed and why, and the evidence in support (CrimPR 31.2).
  • Where hearsay is used, the Rules require hearsay notices and counter-notices (CrimPR 31.6–31.8).
  • Where there is a “relevant contested issue of fact”, a final contested civil harassment restraint may require oral evidence.

In DFB, the Court concluded that given the complainant’s non-attendance and the reliance on hearsay (including accounts of police contact), the need for the structured CrimPR process was heightened, not diminished.

iii) R v Major (civil standard of proof)

The Court referenced R v Major (via the Baldwin quotation) for the proposition that the civil standard of proof applies to restraining orders, reinforcing that these orders are civil protective measures rather than criminal punishment for the acquitted conduct.

iv) R v Smith (identification of the protected person / necessity)

The judgment, again via Baldwin, cited R v Smith for two related constraints: (1) the protected person (or group) must be identifiable; and (2) the statutory word “necessary” must not be ignored. These citations underpin the insistence that s.5A is not a discretionary “add-on” after acquittal; it has defined statutory preconditions that must be evidenced.

v) Khan [2021] EWCA Crim 1526

Role in the remedy analysis: Khan [2021] EWCA Crim 1526 was used to explain both: (a) how procedural unfairness commonly arises in s.5A applications after no-evidence acquittals; and (b) what happens on appeal where the proceedings were unfair.

The Court in DFB adopted Khan’s approach that, once unfairness is found, the typical consequence is that the order is set aside. It also endorsed Khan’s conclusion that quashing a s.5A order does not prevent the prosecution from making a fresh application under s.5A in the Crown Court.

vi) Bernard -v- The State of Trinidad and Tobago [2007] 2 Cr App R 22; Serafin -v- Malkiewicz [2020] 1 WLR 2455; Jones -v- National Coal Board [1957] 2 QB 55

These authorities were cited (through Khan) to emphasise a core appellate principle: where the process is unfair, the resulting decision is ordinarily set aside; an appellate court should not attempt to salvage “parts” of an outcome reached through unfairness. The evocative formulation in Serafin -v- Malkiewicz [2020] 1 WLR 2455—that a judgment from an unfair trial is “written in water”—was treated as especially apposite.

B. Legal Reasoning

i) The statutory framework: s.5A Protection from Harassment Act 1997

The Court anchored its analysis in the text of s.5A: a Crown Court may, following acquittal, make an order prohibiting specified conduct if necessary to protect a person from harassment by the defendant. The order is time-limited or “until further order”; breach is a criminal offence (with significant maximum penalties).

The judgment highlights the distinctive nature of s.5A: it allows a coercive, enforceable restraint (backed by criminal sanctions for breach) even though the defendant has been acquitted. That combination makes the procedural safeguards (evidence, notice, opportunity to challenge) especially important.

ii) The procedural framework: CrimPR Part 31 (“behaviour orders”)

The Court treated CrimPR Part 31 not as mere technicality but as the operationalisation of natural justice in this context. In particular:

  • CrimPR 31.2 requires that the court must not make a behaviour order unless the defendant has had an opportunity to consider (i) what is proposed and why, and (ii) the evidence in support, and to make representations at a hearing.
  • CrimPR 31.3(6) requires the prosecutor to serve a draft order as soon as practicable and specify the prohibitions proposed as necessary on acquittal.
  • CrimPR 31.4 requires notice (and attachment of statements) where a party wants the court to take account of evidence not already introduced. This becomes critical where, as here, the prosecution has offered no evidence at trial.
  • Where hearsay is relied upon, CrimPR 31.6, 31.7 and 31.8 require hearsay notice and provide mechanisms for challenge, including cross-examination applications.

iii) Application to the facts: why the hearing was unfair

The Court accepted that the complainant’s withdrawal statement strongly supported a protective order in substance. Nonetheless, it found unfairness because the process did not properly implement the Rules:

  • The prosecution relied on a document that was essentially a draft order rather than a structured application clearly identifying the evidential basis.
  • The prosecution introduced hearsay (accounts of police conversations with the complainant about her wishes and intentions) without advance notice, without an officer statement, and without a hearsay notice as contemplated by the Rules.
  • There were contested factual issues (including whether the complainant had recently contacted the appellant and what her current wishes were), which heightened the importance of structured disclosure and a fair opportunity to challenge the evidence relied on to establish “necessity”.

The Court considered that, in these circumstances, “the more structured process anticipated by the Rules ought to have been given effect.” The judge below was not properly assisted by that process (nor, it appears, by the applicable authority at the time), and the result was an order made in a procedurally unfair way.

iv) Why later variation did not “cure” the defect

The appellant argued (and the Court accepted) that reducing the duration and varying terms later did not retrospectively correct the initial unfairness. Once the original order was reached through an unfair process, it remained unsafe; subsequent administrative or consent-driven adjustments did not convert the initial process into a fair one.

v) Remedy and next steps: quashing, and possibility of a fresh application

Following Khan [2021] EWCA Crim 1526, the Court quashed the restraining order. It also endorsed the proposition that after quashing, the CPS is not barred from bringing a fresh s.5A application in the Crown Court. That approach reconciles:

  • the civil/protective purpose of s.5A,
  • the defendant’s Article 6 fair-hearing rights (explicitly referenced in Khan), and
  • the practical need for a lawful route to protective measures where risk persists despite an acquittal.

C. Impact

i) Practical impact on s.5A applications after “no evidence” acquittals

The decision reinforces that procedural rigour is not optional where restraining orders are sought after acquittal. Prosecutors should expect that courts will require:

  • clear identification of the evidential foundation demonstrating necessity,
  • compliance with CrimPR 31.4 where the evidence was not introduced in the criminal trial (especially where no evidence is called), and
  • strict adherence to hearsay notice requirements where hearsay is relied upon.

ii) Judicial case management

The case is likely to encourage judges to:

  • adjourn where necessary to ensure notice and fairness (rather than deciding immediately on incomplete procedure),
  • probe whether disputed facts require oral evidence (consistent with the logic in the Baldwin passage), and
  • give clear reasons demonstrating that “necessity” is satisfied on the evidence.

iii) Substantive protective purpose preserved, but through lawful process

Importantly, DFB does not dilute the ability of the court to protect complainants after acquittal. It instead insists that, because s.5A carries heavy consequences (including criminal liability for breach), the route to protection must be procedurally fair. The Court’s recognition that the order “makes very good sense” on the materials underscores that the quashing was driven by process, not by rejection of the protective rationale.

4) Complex Concepts Simplified

“Restraining order on acquittal” (s.5A)
An order the court can make even when the defendant is found not guilty (or the prosecution offers no evidence), aimed at preventing future harassment. Breach is a separate criminal offence.
“Civil in nature” and the “civil standard of proof”
The order is a protective civil measure (not a finding of criminal guilt). The court applies the civil proof standard (more likely than not), though the seriousness of allegations may affect the quality of evidence needed in practice.
“Hearsay” and “hearsay notice”
Hearsay is evidence of what someone said outside court, presented to prove the truth of it. The Rules require advance notice so the other side can challenge it (including, where appropriate, applying to cross-examine the maker).
“Necessary”
The statutory threshold is not “helpful” or “desirable” in the abstract; it must be shown on evidence that the order is required to protect a person from harassment risk.
CrimPR Part 31 (“behaviour orders”)
The procedural code governing how courts should make civil-type orders in criminal proceedings (including restraining orders), ensuring notice, evidence identification, and a fair opportunity to respond.

5) Conclusion

DFB, R. v [2026] EWCA Crim 399 cements a clear message for restraining orders on acquittal: even where the underlying materials strongly suggest risk, the court must not impose a s.5A order unless the defendant has been afforded the structured procedural fairness demanded by CrimPR Part 31, particularly where hearsay is relied upon and no evidence has been called at trial.

The decision’s significance lies in its insistence that protective outcomes must be reached lawfully: orders made through unfair procedure will be quashed, and later variations will not automatically cure foundational defects. At the same time, the Court preserves the protective purpose of s.5A by confirming that, after quashing, the CPS may pursue a fresh application—this time on a fair procedural footing.