Introduction

This commentary examines the Court of Appeal’s decision in R v Mercer [2025] EWCA Crim 1197, a renewed application for leave to appeal against sentence following five admitted breaches of a non‑molestation order, contrary to section 42A(1) and (5) of the Family Law Act 1996. The case sits at the intersection of family protective orders and criminal sentencing, raising issues about:

• Sentencing for persistent breaches of protective orders, including the operation of the Sentencing Council guidelines (culpability/harm categorisation),
• The application of the totality principle to multiple offences and the justification for concurrency with an overall uplift,
• The treatment of asserted “caring” or familial motives at sentence when an offender has deliberately bypassed lawful processes to vary or manage orders,
• Credit for time spent on remand under section 240ZA of the Criminal Justice Act 2003, and
• The use and significance of a post-sentence restraining order extending protection beyond the life of the family court order.

The applicant had repeatedly attended his sister’s address—contrary to clear prohibitions—within a short period of time, some offences committed while on bail. He pleaded guilty and received five concurrent terms of 12 months’ imprisonment. The Recorder also imposed a five‑year restraining order. The Court of Appeal granted an extension of time to renew the application but refused leave, holding that the sentence was not manifestly excessive and involved no error of principle.

Summary of the Judgment

• Extension of time: Granted (21 days) due to delay in receipt of the single judge’s order.
• Sentence: Five concurrent terms of 12 months’ imprisonment upheld for five breaches of a non‑molestation order. The sentencing judge’s approach—culpability Category A (persistent breach) and harm Category 2 (fear/distress)—was endorsed. A notional 18‑month sentence after trial was appropriate, reduced to 12 months for an early guilty plea.
• Totality and concurrency: The Recorder properly applied totality by imposing concurrent terms while reflecting the overall seriousness through an uplift to the notional single-count sentence before credit for plea.
• Remand credit: Time spent on remand counts towards sentence under section 240ZA CJA 2003, but not “double”.
• Mitigation rejected: The applicant’s claimed caring motive (for parents and partner) was not mitigating where he had ignored the court process and orders; this demonstrated a lack of insight.
• Restraining order: A five‑year restraining order (to 11 June 2030) was emphasised. The Court warned that any breach could attract up to five years’ imprisonment and would be treated particularly seriously given the history.
• Outcome: Renewed application for leave to appeal against sentence refused; sentence not manifestly excessive and free from error of principle.

Analysis

Statutory and Guideline Framework

• Family Law Act 1996, s.42A: Criminalises breaches of non‑molestation orders. The offence requires proof of breach; the statute includes the concept of “without reasonable excuse”. Here, the applicant pleaded guilty, removing any live issue on this element.
• Criminal Justice Act 2003, s.240ZA: Provides that time spent on remand in custody is credited against sentence on a day‑for‑day basis. The Court expressly rejected any notion of “double” counting of remand time.
• Protection from Harassment Act 1997 (restraining orders): The Recorder imposed a separate restraining order post-sentence to extend protection. The judgment highlighted the standard warning that breach can lead to up to five years’ imprisonment.
• Sentencing Council Guidelines: The court applied the familiar culpability/harm grid for breach of protective orders. Persistent breach places an offender in Category A (high culpability); harm Category 2 reflects fear and distress short of the most serious harm.

Precedents Cited

The judgment does not cite specific earlier case authorities. Instead, it applies the statutory framework and the Sentencing Council’s guidelines, alongside orthodox sentencing principles (plea credit, totality, and assessment of aggravation/mitigation). The absence of case citations underscores that the outcome turned on straightforward application of settled principles to persistent, on‑bail offending in breach of a protective order.

Legal Reasoning

1) Culpability and Harm: High Culpability (Category A) and Harm (Category 2)

The Recorder categorised the offending as Category A for culpability due to persistence: five breaches in approximately four months, some while on bail. The harm was Category 2 given the victim’s fear and distress, the undermining of her sense of safety at home, and concern for her daughter’s safety. The Court of Appeal held this categorisation was appropriate. The guideline starting point for a single offence on that basis was one year’s custody (with a range from a high-level community order up to two years’ custody).

2) Multi‑Offence Uplift and Totality

A central feature of the judgment is its approval of the Recorder’s methodology for multi‑count sentencing in breach cases:

• Identify the single‑count starting point (here, 12 months);
• Apply an uplift to reflect multiple offences and significant aggravation (here, to 18 months pre‑plea);
• Apply full plea credit (one‑third), resulting in 12 months;
• Order concurrent terms to respect totality, since the counts reflect a connected course of conduct.

The Court expressly held that an uplift of six months to reach 18 months pre‑plea was not excessive, given:

• Five offences over a short period,
• Offending on bail,
• Prior history of non‑compliance with court orders and notification requirements, and
• Marked impact on the victim’s sense of safety.

This approach confirms that concurrency need not dilute gravity where the sentencing judge transparently adjusts the notional single‑count sentence to capture total harm and culpability across multiple counts. The totality principle was properly applied to avoid a crushing sentence yet reflect overall seriousness.

3) Aggravating Features: On‑Bail Offending and Non‑Compliance History

The Court emphasised that:

• Some breaches were committed while the applicant was on bail, and
• The applicant had a recent history (2022–2024) of failing to comply with legal regimes (notification requirements, Sexual Harm Prevention Order breach, breach of a suspended sentence).

These factors strongly aggravated sentence because they reveal a pattern of disregard for court orders—precisely the mischief protective order regimes are designed to control.

4) Guilty Plea Credit

The Recorder gave full credit for an early guilty plea, reducing the notional 18‑month sentence after trial to 12 months. The Court confirmed that this was orthodox and that any earlier suggestion by the applicant that he ought to have been released earlier was misplaced in light of the correct application of credit rules and remand time accounting.

5) Time on Remand: Section 240ZA CJA 2003

The applicant had served 14 weeks on remand pre‑sentence and believed it ought to count “double”. The Court made clear:

• Remand time counts toward the sentence, day for day, under section 240ZA,
• There is no “double credit” for remand time, and
• Any release calculation must take account of that single credit and the sentence’s structure, not a notional “double time”.

6) “Caring Motives” Are Not Mitigation When Orders Are Deliberately Ignored

The applicant argued that he was caring for his parents (his mother has Alzheimer’s) and his disabled partner. The Court held this reflected lack of insight rather than mitigation: the complainant was the primary carer; the applicant could not unilaterally set aside a protective order on the basis of personal disagreement or perceived familial duty. As the Recorder put it, “there is a process” to follow—namely, seeking variation or directions through the family court. Persistent non‑engagement with that process, coupled with repeated breaches, neutralised any claimed benevolent motive.

7) The Restraining Order: Continuity of Protection and Heightened Consequences

With the non‑molestation order approaching expiry (April 2025), the Crown Court imposed a five‑year restraining order in June 2025. The order continued protective conditions (no direct or indirect contact with the complainant and her daughter; exclusion zone of 50 metres around the complainant’s home) and carried a formal warning that breach may result in up to five years’ imprisonment. The Court of Appeal underlined the importance of meticulous compliance after release and warned that any breach will be treated “particularly serious” given the applicant’s current convictions.

The judgment thereby reaffirms the court’s capacity and willingness to ensure continuity of protection through criminal restraining orders where the underlying family order is time‑limited, ensuring seamless safeguarding of victims.

Impact and Significance

• Sentencing practice for protective order breaches: The Court endorses a robust approach for persistent breaches, especially where there is on‑bail offending and a pattern of non‑compliance. The method—uplifting the notional single‑count sentence to capture totality, then ordering concurrency—receives appellate approval.
• Mitigation boundaries: Assertions of familial or caring motives carry little or no weight where an offender has consciously bypassed available legal processes to vary or manage orders. This judgment will be cited to resist mitigation premised on subjective justifications incompatible with court‑ordered safeguards.
• Remand credit clarity: The Court dispels misconceptions about “double” credit for remand, which will assist practitioners in advising clients and managing expectations about release dates.
• Victim protection continuity: The case exemplifies how, at sentence, a restraining order can be layered over or follow on from a family non‑molestation order to maintain protection beyond the civil order’s expiry. Expect continued routine use of restraining orders for continuity in domestic contexts.
• Appeal threshold: The Court reiterates that mere disagreement with the moral basis of an order or with sentencing logic does not render a sentence “manifestly excessive.” Absent an error of principle or disproportion, leave will be refused.

Complex Concepts Simplified

• Non‑molestation order (NMO): A family court order preventing harassment, contact or proximity. Breach without reasonable excuse is a criminal offence (s.42A FLA 1996).
• Restraining order: A criminal court order (often under the Protection from Harassment Act 1997) aimed at preventing harassment or fear of violence, commonly imposed at or after conviction. Breach is a separate criminal offence, punishable by up to five years’ imprisonment on indictment.
• “Without reasonable excuse” (context): An element of the s.42A offence; however, a guilty plea accepts that no lawful excuse existed. Genuine emergencies can, in principle, be relevant to “reasonable excuse,” but persistence and non‑engagement with lawful variation processes will usually defeat such claims.
• Culpability and harm categories: Sentencing guidelines classify offender blameworthiness (A: high; B: medium; C: lesser) and harm (1—most serious—to 3—least), setting a starting point and range for sentence.
• Totality principle: Ensures the overall sentence for multiple offences is just and proportionate. Courts may use concurrency with an uplifted notional single‑count sentence to reflect total harm, rather than imposing consecutive terms that could be crushing.
• Concurrent vs. consecutive sentences: Concurrent sentences run at the same time; consecutive ones run back‑to‑back. In repeated breaches of a single order forming a pattern of conduct, concurrency is common, but gravity is captured by an appropriate uplift in the notional sentence.
• Guilty plea credit: Early guilty pleas generally attract up to one‑third reduction. Here, 18 months (after trial) was reduced to 12 months.
• Remand credit (s.240ZA CJA 2003): Time spent in custody before sentence is credited day‑for‑day against the sentence. There is no “double time”.
• Manifestly excessive: The appellate test for interfering with sentence. The appellant must show the sentence falls outside the reasonable range or that an error of principle occurred. Disagreement with calibration is insufficient.
• Extension of time and single judge procedure: If the single judge refuses leave to appeal, the applicant can renew before the full court. If out of time, an extension may be granted for good reason—but the appeal must still have arguable merit.

Observations on Drafting and Process

• Nomenclature slip: The sentencing remarks refer once to “breach of the Restraining Order” when addressing culpability categorisation, though the offences were breaches of a non‑molestation order. The Court’s reasoning makes clear that the relevant guideline applied is the breach‑of‑protective‑order regime, which is analogous across NMOs and restraining orders.
• Counting the pattern: The applicant admitted attending the address “six or seven” times; five episodes were charged and proven by plea. The Recorder appropriately treated the pattern as persistent, warranting Category A culpability and an uplift to capture the course of conduct.

Conclusion

R v Mercer reaffirms a clear set of principles in sentencing for breaches of protective orders:

• Persistent, on‑bail breaches of protective orders will typically justify high culpability categorisation and robust custodial sentences.
• Where there are multiple breaches, courts may impose concurrent terms but reflect totality by uplifting the notional single‑count sentence before applying plea credit.
• Subjective or “caring” motives do not mitigate deliberate disobedience of orders; the proper course is to seek variation or directions through the court system.
• Remand credit under section 240ZA is day‑for‑day; there is no “double counting.”
• Criminal restraining orders serve as an effective mechanism to secure continuity of protection beyond the lifespan of family orders, and breaches will attract serious consequences.

The judgment offers practical, appellate‑level confirmation of orthodox sentencing method for protective‑order breaches, dispels misconceptions about remand credit, and sends a strong message: bypassing court processes in the name of familial care is not a defence and not a mitigation. The protective function of the criminal courts will be fortified, not undermined, by persistent non‑compliance.