Post‑Acquittal Restraining Orders: Mandatory Part 31 CrimPR Fair‑Process Compliance (Especially Where No Evidence Is Offered)

1. Introduction

Khurshid, R. v ([2025] EWCA Crim 1445, CA (Crim Div), 17 October 2025) concerned an appeal against a restraining order imposed on acquittal under section 5A of the Protection from Harassment Act 1997. The applicant (a former husband) had been prosecuted for an alleged breach of a Family Court non‑molestation order. The prosecution, unable to proceed, offered no evidence and the applicant was acquitted. Immediately after acquittal, the Crown Court judge—prompted by the complainant’s in-court request— imposed a five‑year post‑acquittal restraining order restricting contact to solicitors and the Family Wizard App.

The appeal raised two core issues:

  • Procedure: whether the Crown Court complied with Part 31 Criminal Procedure Rules 2020 and basic fairness before making the order.
  • Substance: whether the statutory test of necessity to protect from harassment was met on an adequate evidential basis.

Notably, the Crown did not contest the proposed grounds of appeal; it conceded procedural impropriety and non-compliance with CrimPR 31.2.

2. Summary of the Judgment

The Court of Appeal granted leave and allowed the appeal, holding that the process by which the restraining order was made was unfair and non-compliant with the Criminal Procedure Rules and natural justice. The restraining order was therefore quashed.

However, the Court of Appeal also held it was not in a position to say that no order could properly have been made. Echoing the approach in R v Khan [2021] EWCA Crim 1526, it concluded that quashing the order did not prevent the prosecution from bringing a fresh application under section 5A in the Crown Court. If the prosecution chose to do so, it had to give notice to the applicant and to St Albans Crown Court within 28 days.

3. Analysis

3.1 Precedents Cited

The Court’s reasoning was anchored in a line of authority regulating the making of restraining orders on acquittal and the procedural safeguards required.

R v Major [2010] EWCA Crim 3016

  • Function of section 5A: The power exists to protect where there is evidence of risk but not enough to secure a conviction on the criminal standard. The Court in Khurshid accepted this rationale, recognising the domestic context and the existence of prior protective measures.
  • Standard of proof: Section 5A proceedings apply the civil standard (balance of probabilities). The Court reaffirmed that compliance with bail may reflect fear of remand and does not automatically negate necessity (Major [15]–[16]).
  • Need for reasons and factual basis: A restraining order is serious; reasons and factual basis must be articulated (Major [18]). In Khurshid the judge’s failure to identify the evidential basis and to explain necessity was a key defect.

R v Baldwin [2021] EWCA Crim 703

  • Civil nature, evidential discipline: Although section 5A orders are “civil” (Baldwin [34]), civil proceedings still require admissible evidence to justify relief (Baldwin [37]).
  • Fair opportunity to meet the case: Especially where no evidence is offered at trial, the defendant must be able to consider the proposed order, the supporting evidence, and must have the opportunity to adduce evidence and make submissions (Baldwin [37]).

Khurshid treated Baldwin as directly controlling: the applicant was absent with the court’s leave, had no prior notice, and the judge had not presided over any evidential trial—making procedural compliance and fair participation indispensable.

R v Brough [2011] EWCA Crim 2802

Brough [22] was cited for the proposition that, unless necessity is conceded, the question must be determined on evidence and the court must explain reasons if it makes an order. The Court of Appeal found the Crown Court judge incorrectly treated the issue as something he was “not here to litigate”, when it was precisely a litigated determination requiring evidence and reasoned findings.

R v Davinder K [2012] 1 Cr. App. R (S.) 88

  • Adjournment as the normal solution: Where the court is minded to impose a section 5A order on its own initiative, it should consider adjourning so that Part 31 CrimPR requirements can be met (Davinder K [13]).
  • Procedural steps: Notice identifying evidence (CrimPR 31.4), hearsay notices (CrimPR 31.6), and cross-examination procedures (CrimPR 31.7).
  • Limits of procedural “shortcuts”: Even if CrimPR 31.11 permits flexibility, fundamentals remain: proper notice and meaningful opportunity to respond. “Different considerations apply” where no evidence has been offered and no evidential basis exists (Davinder K [14]).

Khurshid is best read as an application of Davinder K to a common modern scenario: a “mention” via CVP after the prosecution offers no evidence, where a complainant seeks protective relief immediately. The Court stressed that convenience cannot displace the structured safeguards.

R v Khan [2021] EWCA Crim 1526

Khan addressed the appellate complication that section 5A orders are treated as “sentence” for appeal purposes, constraining the Court of Appeal under section 11(3) Criminal Appeal Act 1968 to either quash or substitute, with no express power to remit. Khan held that quashing does not prevent a fresh section 5A application in the Crown Court, because the proceedings are civil in nature despite the appeal mechanism.

Khurshid followed Khan: the unfair process below meant the Court of Appeal lacked a reliable evidential basis to substitute its own order, so quashing was appropriate, while leaving open a renewed, procedurally correct application.

Bernard v The State of Trinidad and Tobago [2007] 2 Cr. App. R. 22 and Serafin v Malkiewicz [2020] 1 WLR 2455

These cases were cited via Khan to situate the general principle that procedural unfairness will ordinarily lead to the setting aside of the resulting order (Serafin [49]), though not invariably (Bernard [27]). In Khurshid, the unfairness went to the heart of the restraining-order decision: no notice, no evidential hearing, and curtailed defence submissions.

3.2 Legal Reasoning

The Court’s reasoning proceeds in three linked steps:

  1. Identify the statutory test and seriousness: Under section 5A(1), a restraining order may be made on acquittal only if the court considers it necessary to protect a person from harassment. Breach is criminalised and can attract substantial custody, underscoring why procedural safeguards matter.
  2. Apply mandatory procedural protections (CrimPR Part 31 + natural justice): CrimPR 31.2 requires an opportunity to consider what order is proposed and why, to consider the evidence in support, and to make representations at a hearing. Where evidence is not already adduced and the court may consider acting on its own initiative, CrimPR 31.4 contemplates notice identifying the evidence. In this case: there was no notice; CPS had not applied; counsel had no instructions; the defendant was not present; the judge relied on “papers” without a defined evidential foundation; and the defence was effectively prevented from developing submissions.
  3. Conclude that the court could not lawfully reach “necessity” on that process: Necessity was contested; therefore it had to be determined on evidence. The judge’s refusal to “litigate” the very issue in dispute meant there was no fair determination. The lack of reasons and absence of an articulated factual basis compounded the error. The result was a restraining order imposed without the requisite evidential matrix, contrary to the CrimPR and case-law.

The Court also made an important balancing observation: the defective process harmed not only the applicant (who faced a serious order without notice), but also the complainant—because an order made unfairly is vulnerable to being quashed, potentially delaying or undermining effective protection that might have been available through a properly managed adjourned application.

3.3 Impact

  • Reinforced procedural discipline post-acquittal: The decision strengthens the message that section 5A cannot become an informal “fallback” after a failed prosecution. Even where protection may be justified, the court must build a procedurally fair record: notice, identified evidence, and reasons.
  • Clear warning for “mention hearings” and CVP settings: Where hearings are listed as administrative mentions (often remotely), judges must be alert to scope-creep. If a contested protective order becomes live, an adjournment with Part 31 directions will often be the lawful course.
  • Practical guidance for prosecutors: If the CPS anticipates a section 5A application—especially where a trial may not proceed—early preparation of CrimPR-compliant notices, witness statements, and (where needed) hearsay notices reduces the risk of collapse on appeal.
  • Continued pathway to protection despite quashing: Following Khan, Khurshid confirms that quashing for unfairness does not foreclose a renewed application. The Court’s 28-day notice direction incentivises prompt, structured decision-making.
  • Risk management for defence: Defendants and counsel should be prepared to object on CrimPR 31.2/31.4 grounds and seek an adjournment where a post-acquittal order is raised without notice; they should also insist on clarity as to evidence relied on and reasons.

4. Complex Concepts Simplified

“Restraining order on acquittal” (section 5A)
A court can impose a restraining order even if the defendant is found not guilty, but only if it is necessary to protect someone from harassment. It is “civil” in character, but breach is a criminal offence.
Civil standard of proof (“balance of probabilities”)
The court asks whether something is more likely than not, rather than being sure beyond reasonable doubt. This lower threshold increases the need for careful, fair procedures and clear evidential reasoning.
CrimPR Part 31 (behaviour orders)
A set of procedural rules ensuring that before a restraining order is made, the person affected knows what is proposed, why it is sought, what evidence supports it, and has a real opportunity to respond.
Natural justice / fairness
Basic legal fairness: a person must know the case against them and have a meaningful chance to answer it. A judge cannot curtail submissions where the issue is contested.
Why the Court of Appeal did not simply make a new order
Because the process below was unfair, the appellate court lacked a reliable evidential platform to craft a substitute order. The correct remedy was to quash, leaving any renewed application to be heard properly in the Crown Court.

5. Conclusion

Khurshid, R. v reasserts a stringent rule of practical importance: a post-acquittal restraining order under section 5A will not stand unless the court complies with Part 31 CrimPR and natural justice—particularly where no evidence has been offered and the defendant has had no prior notice of a proposed order. The judgment underscores that “protective” aims cannot justify procedural shortcuts: necessity must be established on an identified evidential basis, after a fair opportunity to respond, and with reasons explained.

At the same time, the Court preserves a pathway to protection by confirming (in line with R v Khan [2021] EWCA Crim 1526) that quashing an unfair order does not bar a fresh, properly notified and evidenced application under section 5A—here encouraged by a 28‑day notice direction.