R v Selvage [2025] EWCA Crim 1536: The Burden of Proving “Reasonable Excuse” in Breach of Restraining Order Offences under s.363 Sentencing Act 2020

1. Introduction

This commentary analyses the decision of the Court of Appeal (Criminal Division) in R v Selvage [2025] EWCA Crim 1536, a case which clarifies and re‑states the allocation of the burden and standard of proof where a defendant, charged with breaching a restraining order under section 363 of the Sentencing Act 2020, relies on a “reasonable excuse”.

Although the court did not forge an entirely new principle, it firmly applies established case law to the post‑consolidation provision in s.363 and quashes a conviction obtained after a serious misdirection of the jury on the burden of proof. The judgment also contains important obiter guidance on the scope of “reasonable excuse”, the proper handling of child‑contact motivations in breach cases, and a set of procedural rulings on retrial, reporting restrictions, bail and the possible use of restraining orders on acquittal.

At its core, the decision re‑affirms that:

The defendant bears only an evidential burden to raise the issue of reasonable excuse.
Once raised, the legal burden lies on the prosecution to prove, beyond reasonable doubt, that the defendant had no reasonable excuse.
A jury direction that places a persuasive burden on the defendant is a misdirection of law which, in this case, rendered the conviction unsafe.

2. Factual and Procedural Background

2.1 The relationship and protective orders

Robert Selvage and his former wife, Susan Selvage, were married in 2013, separated in March 2021 and later divorced. They have two sons, aged 8 and 10 at the time of the appeal.

Following complaints of unwanted communications, the Essex Magistrates’ Court made a restraining order against Mr Selvage on 29 March 2023 with a two‑year duration. The relevant term of the order prohibited him from:

“contact[ing], directly or indirectly, Susan Selvage except via solicitors, Social Services, or the Family Court in relation to child contact/the division of their matrimonial assets…”

The restraining order was therefore tightly drafted to allow indirect, structured communication through formal channels, particularly in connection with the children and matrimonial finances.

2.2 The alleged breach

During the life of the restraining order, the applicant sent a number of text messages to his ex‑wife’s phone. These messages, some concerned with child contact and others with more personal issues, were sent in or around early September 2024. Unknown to him, she had changed her phone. She only discovered the messages on 7 September 2024 when she powered on her old device. She then notified the police, leading to Mr Selvage’s arrest and prosecution.

In interview, he admitted sending the messages and acknowledged that he knew of the restraining order and its terms. His explanation was that in June and July 2023 he had been receiving regular phone calls from his sons to his parents’ landline, pursuant to arrangements under a Family Court order. The calls ceased in December 2023 without apparent explanation. Feeling emotional and concerned about his children’s welfare, he began messaging his ex‑wife to re‑establish contact with the children. He apologised, but maintained that his acts were motivated by his role as a father.

2.3 The charge and defence

The single count on the indictment was:

Acting in breach of a restraining order, contrary to section 363 of the Sentencing Act 2020.

Section 363(1) provides:

“(1) It is an offence for a person who is subject to a restraining order without reasonable excuse to do anything prohibited by the restraining order.”

In his Defence Statement, the applicant:

Admitted that he was subject to the restraining order.
Admitted that he was responsible for the communications.
Accepted that the communications, at first sight, appeared to breach the order.
Asserted that he acted primarily in the interests of his children’s welfare and that his communications were therefore “reasonable in the circumstances”.

At trial he gave evidence in similar terms, saying in substance that:

His “reasonable excuse” was to speak to his children, whose previous telephone contact had ceased.
He thought the order did not sufficiently consider the father–sons relationship and considered this unfair.
He placed his role as father “first” even though this meant breaching the order.
He had considered using the Family Court but believed it would be costly and slow.

The prosecution did not dispute his motives or factual narrative about why he sent the messages. The issue at trial was whether those reasons amounted to a reasonable excuse in law for breaching the order.

2.4 The trial judge’s directions

The Recorder gave the jury the following core direction on burden and standard of proof:

“Ordinarily, the burden of proving any defendant's guilt in a case is on the prosecution and a defendant doesn't have to prove anything. However, in this case, because Mr Selvage relies on the defence of reasonable excuse, some of the burden is placed on him…

[After noting breach was admitted] secondly you have to consider his defence, the defendant's defence of reasonable excuse. That is for the defendant to prove. He doesn't have to make you sure that he had a reasonable excuse but he does have to satisfy you that it is more likely than not that he had a reasonable excuse… If he satisfies you that it's more likely than not that he had a reasonable excuse, he is not guilty. Conversely, if he fails to satisfy you that it is more likely than not that he had a reasonable excuse, you would find him guilty.”

The written Route to Verdict given to the jury mirrored this approach. Both prosecution and defence accepted this legal framework at trial and raised no objection.

The jury convicted. On 17 February 2025, Mr Selvage was sentenced (to a community order). He then applied for leave to appeal on the ground that the Recorder had misdirected the jury as to the burden and standard of proof in relation to reasonable excuse. The Crown conceded the misdirection but argued that the conviction was nonetheless safe. The Registrar referred the case to the Full Court.

3. Issues Before the Court of Appeal

The Court of Appeal had to resolve four main questions:

Burden and standard of proof: Was the judge wrong to place a persuasive burden on the defendant to prove reasonable excuse on the balance of probabilities?
Safety of the conviction: Given the misdirection, was the conviction unsafe within the meaning of the Criminal Appeal Act 1968?
Disposal: If the conviction was unsafe and quashed, should there be an order for retrial?
Ancillary orders: What, if any, protective or procedural orders should be made in the interim—particularly:
- Reporting restrictions under s.4(2) of the Contempt of Court Act 1981;
- Bail conditions for the appellant;
- Whether to remit the case to the Crown Court to consider a restraining order under s.5A of the Protection from Harassment Act 1997.

4. Summary of the Judgment

LORD JUSTICE WARBY, giving the judgment of the court, held that:

The Recorder’s direction was wrong in law. Established authorities hold that in offences framed as doing an act “without reasonable excuse” (including the predecessors of s.363), the defendant has only an evidential burden to raise the issue. Once raised, the prosecution must prove, so that the jury are sure, that there was no reasonable excuse.
Section 363(1) of the Sentencing Act 2020 is materially identical to its predecessors in the Protection from Harassment Act 1997 and Crime and Disorder Act 1998. The same approach to burden and standard of proof therefore applies.
Although there was force in the Crown’s submissions that, on the facts, the jury would likely have rejected the claimed excuse even under the correct direction, the misdirection meant the applicant’s case was not left to the jury “in accordance with the law”. The conviction was therefore unsafe and had to be quashed.
A retrial on the single count was ordered. A fresh indictment must be served within 28 days and the appellant re‑arraigned within two months, venue to be determined by the presiding judge of the South Eastern Circuit.
Given the expiry of previous protective orders and the history of alleged breaches, the court imposed bail conditions mirroring the previous restraining order: no direct contact with Mrs Selvage, but permitting indirect contact only via solicitors, Social Services, or the Family Court in relation to child contact or matrimonial assets.
A reporting restriction was imposed under s.4(2) of the Contempt of Court Act 1981, postponing publication of the judgment and proceedings until after the conclusion of the retrial.
Of its own motion, the Court of Appeal remitted the case to the Crown Court to consider whether to proceed under s.5A of the Protection from Harassment Act 1997 (restraining orders on acquittal), without prejudicing the defence’s right to challenge the making of any such order.

5. Legal Analysis

5.1 The statutory framework: s.363 Sentencing Act 2020 and its predecessors

Section 363(1) Sentencing Act 2020 provides:

“It is an offence for a person who is subject to a restraining order without reasonable excuse to do anything prohibited by the restraining order.”

This provision consolidates earlier legislation, particularly:

Section 5(5) of the Protection from Harassment Act 1997, and
Section 1(10) of the Crime and Disorder Act 1998 (in the context of ASBOs).

Those earlier provisions were worded in materially identical terms, criminalising the doing of a prohibited act “without reasonable excuse”. The Court of Appeal has, across several decisions, interpreted such wording as making the absence of reasonable excuse an element of the offence, not a separate defence carrying a reverse burden of proof.

In Selvage, the court confirms that the consolidation into the Sentencing Act 2020 did not alter the substantive law on the burden of proof. Accordingly, the approach in earlier authorities remains applicable.

5.2 Burden and standard of proof on “reasonable excuse”

The court relied on a “series of decisions” concerning the predecessor provisions, namely:

R v Evans [2004] EWCA Crim 3102;
R v Chambers [2009] EWCA Crim 1570;
R v Damji [2020] EWCA Crim 1774 at [41] and [48];
R v Leslie Arden [2022] EWCA Crim 906 at [16].

Although the judgment does not quote these authorities in full, their collective effect is summarised succinctly:

“The position, set out in a series of decisions of this court, is that in cases of this kind the onus lies on a defendant to raise issue of reasonable excuse evidentially but once that has been done the burden passes to the prosecution to satisfy the jury so that they are sure that the belief asserted by the defendant does not amount to a reasonable excuse.”

In other words:

The defendant must do enough to raise the issue in evidence—by giving his account in interview or testimony, or through other evidence suggesting a reasonable excuse.
Once that threshold is met, the absence of reasonable excuse is part of the prosecution’s case. The Crown must prove, to the criminal standard (sure / beyond reasonable doubt), that the defendant did not have a reasonable excuse.

This aligns with the general principle from Woolmington v DPP [1935] AC 462: the prosecution bears the burden of proving all elements of a criminal offence, unless Parliament has clearly provided otherwise.

5.3 The trial judge’s misdirection

The Recorder’s directions wrongly treated “reasonable excuse” as:

a true defence in respect of which the defendant carried a persuasive (legal) burden; and
to be proved by the defendant on the balance of probabilities (“more likely than not”).

By contrast, the correct position is:

The defendant bears only an evidential burden—he must raise the issue.
The prosecution bears the legal burden to prove the absence of reasonable excuse, to the criminal standard.

Thus, the jury was instructed that if the defendant failed positively to satisfy them that his excuse was more likely than not to be true, they had to convict. That direction both:

shifted the legal burden to the accused, and
reduced the standard of proof required of him compared with that required of the prosecution.

The misdirection was embedded not only in the oral summing‑up but also in the written Route to Verdict, reinforcing its effect. Crucially, no objection was taken by counsel for either side, but this does not cure the error: whether a conviction is safe turns on the court’s own assessment, not on whether trial counsel noticed or acquiesced in the misdirection.

5.4 The safety of the conviction: why the misdirection mattered

Having established the error, the Court of Appeal turned to the key question: did this misdirection render the conviction unsafe?

The Crown, through Mr Livingston, argued that on the facts the jury could scarcely have doubted that the defendant had no reasonable excuse:

He knew the order and its terms.
The order expressly required that any child‑contact issues be raised via solicitors, Social Services or the Family Court.
He chose instead to contact his ex‑wife directly, in breach of those terms.
Alternative lawful mechanisms for communication were available.

LORD JUSTICE WARBY acknowledged that there was “some force” in that submission. The appellant’s motives were not disputed, but the prosecution challenged the reasonableness of his choice to flout the order rather than use authorised routes. The only real issue was whether his reasons could amount to a reasonable excuse in law.

Nonetheless, the court stressed that:

“The fact remains that the appellant did not have his case left to the jury in accordance with the law on the burden and standard of proof. We therefore find ourselves driven to the conclusion that the appeal must be allowed and the conviction must be quashed.”

Two features underpin this conclusion:

The burden and standard of proof matter in subtle but important ways.
Even if the factual dispute is narrow, telling jurors that the defendant must prove something, and that they may convict if he fails on the balance of probabilities, can significantly alter their deliberative approach. Under the correct law, they should ask: “Are we sure that he did not have a reasonable excuse?”. Under the misdirection, they were told to ask: “Are we persuaded he did have a reasonable excuse?”.
The appellate court could not safely conclude the misdirection was harmless.
The Court of Appeal is slow to apply a “harmless error” approach where the error goes to such a fundamental aspect of the trial as the burden of proof on the central issue. The court was not prepared to speculate that the jury’s verdict would inevitably have been the same if properly directed.

Accordingly, leave to appeal was granted, the appeal allowed, and the conviction quashed.

5.5 Observations on the scope of “reasonable excuse” (obiter)

Although the court did not decide the substantive question whether the appellant’s motives could amount to a reasonable excuse, it made several instructive observations:

Disagreement with the order is not a “reasonable excuse”.
LORD JUSTICE WARBY noted that the essence of the defence might be seen as an indirect challenge to the legitimacy or fairness of the restraining order (it “wasn't fair”; it “didn't consider the relationship between father and sons”). The court doubted that Parliament intended “reasonable excuse” to encompass a right to disobey a binding court order merely because the subject thinks it unjust or poorly calibrated.
Alternative lawful avenues negate the excuse.
The appellant could have engaged in communication concerning child contact through the very channels expressly permitted: solicitors, Social Services or the Family Court. His choice to bypass those routes and contact his ex‑wife directly substantially undermines the claim that he had no reasonable alternative but to breach the order.
Some messages fell wholly outside the claimed excuse.
The court, having reviewed the messages, agreed with the judge’s observation that some were not about the children or contact at all, but about the complainant personally and her relationship with the appellant. Even on the appellant’s own case, the “excuse” would not cover these messages.
Judicial guidance on the content of “reasonable excuse”.
The court suggested that the trial judge could, and perhaps should, have given fuller legal guidance to the jury on what may or may not amount to a reasonable excuse in law. This would have helped to focus their deliberations and avoid them treating mere personal disagreement with a court order as a sufficient justification.

These comments are obiter (not binding holdings), but they provide a strong signal that:

“Reasonable excuse” does not extend to unilateral disregard of an order because it is seen as unfair or inconvenient; and
Courts can, and should, give juries structured guidance on the legal boundaries of reasonable excuse in such cases.

5.6 Procedural and ancillary rulings

5.6.1 Order for retrial

The Crown applied for a retrial on the single count, emphasising:

The absence of any current protective order for Mrs Selvage (the restraining order having expired in March 2025; the earlier non‑molestation order also expired).
The appellant’s prior breach of the non‑molestation order and the importance of underlining compliance with court orders.

Defence counsel did not resist a retrial. The Court of Appeal ordered that:

The indictment be quashed and a fresh indictment be served within 28 days (with an explicit note about ensuring compliance with the time limit, given previous litigation on such matters).
The appellant be re‑arraigned within two months.
The venue for retrial be determined by the presiding judge of the South Eastern Circuit.

5.6.2 Reporting restriction under s.4(2) Contempt of Court Act 1981

Recognising that a retrial would take place, LORD JUSTICE WARBY indicated that there “probably should be” a reporting restriction. The court therefore made an order under s.4(2) of the Contempt of Court Act 1981 postponing reporting of:

the Court of Appeal’s judgment; and
the proceedings in the Court of Appeal;

until after the conclusion of the retrial. The standard form of order requires the parties to notify the Court of Appeal when the retrial concludes so that the restriction can be lifted, and the judgment become openly reportable.

5.6.3 Bail conditions mirroring the restraining order

The court considered bail, noting that the appellant was at liberty and attending remotely. There was no evidence of fresh breaches. After discussion, and at the suggestion of defence counsel who was concerned about preserving indirect contact for child‑related matters, the court imposed a bail condition mirroring the earlier restraining order:

No direct or indirect contact with Mrs Selvage except via solicitors, Social Services or the Family Court in relation to child contact or the division of matrimonial assets.

LORD JUSTICE WARBY underlined that, for bail:

“…whether or not he thinks he has a reasonable excuse is irrelevant in this context because this order, this bail condition is unqualified.”

This highlights a key distinction: “reasonable excuse” is a statutory element relevant to criminal liability for breach of a restraining order, but bail conditions are to be obeyed strictly. Any breach can lead to immediate consequences regardless of perceived justification.

5.6.4 Remittal for possible restraining order under s.5A PHA 1997

Section 5A of the Protection from Harassment Act 1997 allows courts to make restraining orders on acquittal in certain circumstances. Under s.5A(3), where the Court of Appeal allows an appeal against conviction, it may remit the case to the Crown Court to consider exercising that power.

Initially, the Crown had no instructions to seek such an order. On reflection, the Court of Appeal of its own motion remitted the case to the Crown Court to consider whether to proceed under s.5A. LORD JUSTICE WARBY emphasised:

This merely opens the question for the Crown Court; it does not predetermine that an order will be made.
The defence is free to argue that:
- s.5A does not authorise such an order in the circumstances; or
- even if it does, no order should be made on the facts.

For the time being, the only operative restriction upon the appellant is the bail condition.

5.6.5 Practice direction on sentencing remarks: R v AB [2021] EWCA Crim 692

At the end of the judgment, LORD JUSTICE WARBY referred to the practice described by the Vice‑President in R v AB [2021] EWCA Crim 692. In line with that case, the court directed that:

The sentencing remarks from the original trial (a transcript to be obtained by the Registrar) be provided to the prosecution;
The prosecution then supply that transcript to any Crown Court judge conducting any sentencing hearing after the retrial.

This aims to ensure consistent and informed sentencing if the appellant is again convicted. The court also noted that this was not a case involving televised sentencing remarks, so it declined to make any order requiring the removal of existing media reports.

6. Precedents Cited and Their Influence

6.1 R v Evans [2004] EWCA Crim 3102

Evans concerned breach of an ASBO under s.1(10) of the Crime and Disorder Act 1998, framed in terms of doing something prohibited “without reasonable excuse”. The Court of Appeal there held that “reasonable excuse” was not a discrete, reverse‑onus defence but was part of the definition of the offence. Once an excuse is raised as a live issue, the prosecution must disprove it beyond reasonable doubt.

In Selvage, this reasoning is transposed directly to s.363 Sentencing Act 2020, reflecting continuity between the pre‑ and post‑consolidation regimes.

6.2 R v Chambers [2009] EWCA Crim 1570

Chambers also dealt with a “without reasonable excuse” formulation (again in the context of an ASBO). The court reaffirmed that:

The presumption is that the Crown must prove all elements of an offence, including any “without reasonable excuse” clause, unless Parliament clearly displaces that presumption.
There was nothing in the wording or structure of the legislation that justified imposing a legal burden on the defendant.

Selvage adopts this same logic for restraining orders under s.363.

6.3 R v Damji [2020] EWCA Crim 1774

In Damji, the Court of Appeal again addressed offences framed with a “without reasonable excuse” element, citing and applying Evans and Chambers. At [41] and [48], it reaffirmed:

The defendant’s role is to raise some evidence tending to show an excuse;
Once that is done, the prosecution must satisfy the jury, to the criminal standard, that the excuse does not amount to a “reasonable excuse” in law and on the facts.

Selvage relies expressly on those paragraphs, confirming that the same allocation of burdens applies under s.363.

6.4 R v Leslie Arden [2022] EWCA Crim 906

Leslie Arden is a recent authority concerning s.5(5) of the Protection from Harassment Act 1997— the direct predecessor of s.363(1). At [16], the Court of Appeal reiterated that the prosecution must prove the absence of reasonable excuse once the issue is properly raised.

The significance of Leslie Arden in Selvage is twofold:

It removes any doubt that the approach from Evans, Chambers and Damji is settled law;
It confirms that this approach applied to precisely the kind of restraining order offence that s.363 now codifies.

6.5 R v AB [2021] EWCA Crim 692

While not concerned with the burden of proof, R v AB establishes a practice direction that in any retrial following an appeal, the sentencing remarks from the original trial should be made available to the sentencing judge. Selvage applies that practice, reflecting the growing standardisation of procedure around appeals and retrials.

7. Simplifying Key Legal Concepts

7.1 Breach of a restraining order

A restraining order is a court order designed primarily to protect a person (often in a domestic abuse or harassment context) from unwanted contact or behaviour by another. Breach of such an order is a criminal offence.

In Selvage, the key question was not whether there was a breach (the defendant admitted that), but whether he had a “reasonable excuse” for breaching it, given his concerns about child contact.

7.2 Evidential vs legal (persuasive) burden

Evidential burden: the obligation on a party to produce enough evidence on an issue so that it becomes a real issue for the court or jury to consider. It is a threshold, not a standard of persuasion.
Legal (persuasive) burden: the obligation to convince the tribunal of fact of a proposition to a defined standard (e.g. “beyond reasonable doubt” or “on the balance of probabilities”).

In this context:

The defendant’s evidential burden is met once there is some credible material suggesting a reasonable excuse.
The prosecution’s legal burden is then to prove, to the criminal standard, that the excuse does not amount to a reasonable excuse.

7.3 Standards of proof

Beyond reasonable doubt / being sure: the criminal standard. The jury must be sure of the defendant’s guilt (including each element of the offence).
Balance of probabilities / more likely than not: the civil standard. If something is even slightly more likely than not, it is taken as proven.

The misdirection in Selvage wrongly told the jury that the defendant had to prove his reasonable excuse on the civil standard. The correct position is that the prosecution must disprove reasonable excuse on the criminal standard.

7.4 “Unsafe” convictions and misdirection of law

Under the Criminal Appeal Act 1968, the Court of Appeal must allow an appeal against conviction if it considers the conviction “unsafe”. A misdirection on a fundamental matter such as the burden of proof will very often make a conviction unsafe unless the court is sure the error could not have affected the result.

In Selvage, the misdirection went to the central issue at trial: reasonable excuse. The court could not be confident that the jury’s verdict would have been the same under correct directions, so the conviction was quashed.

7.5 Retrials

When the Court of Appeal quashes a conviction, it may order a retrial if the interests of justice so require. Factors include:

Seriousness of the offence;
Strength of the prosecution case;
Public interest in prosecution;
The position of the complainant, especially their protection and peace of mind;
Time elapsed since the offence and practicalities of a fair retrial.

In Selvage, a retrial was ordered given the public interest in enforcing court orders and the absence of any current protective orders for the complainant.

7.6 Reporting restrictions under s.4(2) Contempt of Court Act 1981

Section 4(2) allows a court to postpone reporting of a case where such reporting would create a substantial risk of prejudice to the administration of justice—for example, by influencing jurors at a retrial.

Here, the Court of Appeal restricted publication of its judgment and proceedings until after the retrial, to ensure that potential jurors are not exposed to detailed appellate reasoning about the case in advance.

7.7 Restraining orders on acquittal: s.5A PHA 1997

Section 5A permits a criminal court to make a restraining order even when a defendant is acquitted, if it considers such an order necessary to protect a person from harassment by the defendant. Under s.5A(3), the Court of Appeal, when quashing a conviction, can remit the matter to the Crown Court to consider such an order.

This mechanism recognises that the criminal standard for conviction is high; even where that standard is not met, a civil‑type protective order may sometimes still be appropriate to safeguard vulnerable individuals.

8. Impact and Future Significance

8.1 Consolidating the law on reasonable excuse under s.363

Selvage is significant in confirming that the settled line of authority on “without reasonable excuse” applies squarely to s.363 of the Sentencing Act 2020. For future cases involving breach of restraining orders:

Judges must not direct juries that the defendant must prove reasonable excuse on the balance of probabilities.
The Crown must recognise that disproving reasonable excuse is part of its burden of proof when the issue is raised.

This will likely influence:

Standard jury directions and Bench Book guidance;
Prosecutorial practices in charging and presenting such cases;
Defence strategies, particularly where a defendant’s explanation is plausible but contestable.

8.2 Appellate scrutiny of burden‑of‑proof misdirections

The decision also underscores the Court of Appeal’s reluctance to treat misdirections on burden and standard of proof as harmless. Even where the factual matrix appears to favour the Crown, if the jury has been told that the defendant carries a legal burden on a central issue, the conviction will be at serious risk on appeal.

Practically, this:

Encourages careful scrutiny of directions at trial, especially in cases involving statutory “defences” or exceptions.
Provides a clear ground of appeal where trial judges misstate who must prove what, and to what standard.

8.3 Guidance on the limits of “reasonable excuse” in domestic and family contexts

The court’s obiter comments send a clear message in domestic and family breakdown scenarios:

A desire to maintain or restore contact with children does not, by itself, license the breach of a restraining order.
Parties must use lawful channels—Family Court, solicitors, Social Services—rather than unilateral contact in breach of orders.
“I disagreed with the order” or “I found it unfair” is not a reasonable excuse for non‑compliance.

This is important in a legal landscape where family, criminal and protective orders increasingly intersect. The judgment reinforces the principle that court orders must be obeyed until they are varied or discharged; they cannot be re‑written by individual conscience.

8.4 Enhanced use of protective tools: s.5A PHA and bail conditions

The court’s willingness to:

Impose tight bail conditions mirroring the expired restraining order; and
Proactively remit the case for possible consideration of a restraining order on acquittal under s.5A;

signals a strong commitment to victim protection and to upholding the authority of the courts. It also highlights the layered nature of protection:

Even where a conviction is quashed, and before any retrial, interim measures such as bail conditions and possible s.5A orders can protect complainants.

8.5 Procedural good practice for retrials

The directions about:

strict compliance with time limits for serving fresh indictments;
passing sentencing remarks to the sentencing judge after a retrial (R v AB); and
using reporting restrictions to preserve the fairness of retrials;

contribute to a broader framework of consistent, fair practice in criminal appeals and retrials. This will be of particular interest to practitioners managing complex or high‑profile cases where retrials are likely.

9. Conclusion

R v Selvage [2025] EWCA Crim 1536 is a clear and important reaffirmation of the principle that, in offences of breaching restraining orders under s.363 Sentencing Act 2020, the defendant bears only an evidential burden in relation to “reasonable excuse”. Once the issue is raised, it is for the prosecution to prove, beyond reasonable doubt, that the defendant had no such excuse.

The case demonstrates the seriousness with which appellate courts view misdirections on burden and standard of proof. Even in circumstances where the factual merits might seem to point strongly towards guilt, a conviction obtained on the basis of an incorrect allocation of the burden cannot stand.

Beyond this core holding, the judgment provides valuable guidance on:

the limited scope of “reasonable excuse” in the context of protective orders;
the need to use lawful mechanisms, not unilateral breaches, to resolve child‑contact disputes;
the court’s readiness to employ ancillary powers—bail, reporting restrictions, and potential restraining orders on acquittal—to protect complainants while ensuring fair retrials.

In the broader legal landscape, Selvage consolidates existing authority for the post‑2020 regime and serves as a cautionary reminder to judges, advocates and juries alike: the “golden thread” of the prosecution’s burden of proof runs through all such offences unless Parliament very clearly says otherwise.