Introduction

The case of Mari, R. v ([2023] EWCA Crim 1631) presents a significant examination of the imposition of restraining orders following an acquittal in the context of domestic violence allegations. Gino Mari, a 39-year-old man, was prosecuted for strangulation under section 75A of the Serious Crime Act 2015, with the alleged incident occurring on October 14, 2022. The complainant, Mari's former partner, accused him of strangling her while intoxicated, supported by photographic evidence of marks around her neck. Despite these allegations, Mari was acquitted due to the absence of the complainant's testimony, leading to the imposition of a restraining order by the Crown Court at Harrow.

This judgment delves into the procedural intricacies and legal standards governing restraining orders post-acquittal, particularly scrutinizing the balance between protecting potential victims and safeguarding the rights of the acquitted individual.

Summary of the Judgment

Following Mari's acquittal on March 22, 2023, the prosecution swiftly sought a restraining order against him. The order initially prohibited Mari from contacting the complainant and her children, restricting any communication solely through his sister, Social Services, or legal representatives. Mari contested the order, arguing against its necessity, proportionality, and consistency.

The Court of Appeal scrutinized the order, particularly focusing on the prohibition of contact with the children—a measure not directly supported by evidence presented during the trial. The court identified procedural shortcomings in the application of the Criminal Procedure Rules and the lack of evidence necessitating such an extensive restriction. Consequently, the appeal was upheld in part, leading to the removal of the contact prohibition concerning the children while maintaining restrictions against the complainant.

Analysis

Precedents Cited

The judgment references several pivotal cases that shape the understanding and application of restraining orders under the Protection from Harassment Act 1997. Notable among these are:

• R v Major [2010] EWCA Crim 3016: Established principles regarding the necessity and proportionality of restraining orders.
• R v Smith [2012] EWCA Crim 2566: Further clarified the evidential requirements for imposing such orders.
• R v Baldwin [2021] EWCA Crim 703: Addressed the procedural safeguards necessary when imposing restraining orders post-acquittal.

These precedents underscore the judiciary's commitment to balancing victim protection with the rights of the accused, ensuring that restraining orders are not imposed arbitrarily, especially in the absence of conviction or substantial evidence.

Legal Reasoning

The Court of Appeal meticulously analyzed the application of section 5A of the Protection from Harassment Act 1997, emphasizing that such orders must be "necessary" to protect an individual from harassment. The court scrutinized whether the statutory conditions were met, particularly in the absence of the complainant's testimony.

Key points in the legal reasoning included:

• Assessment of evidence: The order concerning the children lacked direct evidence demonstrating the necessity of restricting contact.
• Procedural compliance: The court identified that the application did not fully adhere to the Criminal Procedure Rules, especially regarding the opportunity for the appellant to consider and contest the order.
• Proportionality: The extent of the restraining order, particularly its duration and breadth, was deemed disproportionate given the circumstances of the acquittal.

Ultimately, the court determined that while restraining orders serve a crucial function, they must be applied judiciously, ensuring that they are both evidence-based and procedurally sound.

Impact

This judgment has profound implications for future cases involving restraining orders post-acquittal. It sets a clear precedent that:

• Restraining orders must be strictly necessary, supported by concrete evidence, and properly justified.
• Orders affecting third parties, such as children, require explicit evidence and cannot be imposed based solely on generalized assumptions.
• Procedural safeguards must be meticulously followed to uphold natural justice and the rights of the individual against whom the order is imposed.

Legal practitioners and courts must now exercise heightened diligence in assessing the necessity and scope of restraining orders, ensuring that they are neither overly restrictive nor procedurally flawed.

Complex Concepts Simplified

Restraining Orders on Acquittal

Under the Protection from Harassment Act 1997, courts can impose restraining orders even if an individual has been acquitted of the underlying criminal charge. These orders aim to prevent potential future harassment or harm.

Necessary and Proportionate

An order is deemed "necessary" if it is essential to protect someone from harassment or harm. "Proportionate" means the restrictions imposed by the order should not exceed what is needed to provide safety.

Criminal Procedure Rules

These are rules governing the conduct of criminal proceedings. They ensure that individuals have a fair opportunity to understand and respond to legal actions taken against them.

Slip Rule Hearing

A procedure allowing urgent applications to be heard outside the regular court schedule, typically to address time-sensitive matters.

Conclusion

The Mari v EWCA Crim 1631 judgment underscores the judiciary's role in meticulously balancing protective measures with individual rights. By scrutinizing the necessity, proportionality, and procedural adherence in the imposition of restraining orders post-acquittal, the court reinforces the principle that such orders must be evidence-based and justifiably applied. This decision serves as a pivotal reference for future cases, ensuring that while the protection of potential victims remains paramount, it does not come at the expense of fairness and legal integrity.

Legal practitioners must now navigate restraining orders with a heightened awareness of the stringent requirements set forth by this judgment, safeguarding the rights of their clients while upholding the law's protective intent.