Restraining Orders on Acquittal: Necessity, Future Risk, and Proper CrimPR Procedure (Not a Bargaining Chip)

Case: Auguste, R. v
Citation: [2026] EWCA Crim 710 (CACD)
Date: 1 May 2026
Judges: Holgate LJ, Soole J, HHJ Michael Simon (sitting with the court)

2. Summary of the Judgment

The Court of Appeal (Criminal Division) granted an extension of time and leave to appeal, allowed the appeal, and quashed the restraining order.

It held, in substance, that:

• the prosecution and court failed to apply the proper procedural discipline for a s.5A application;
• the hearing was impermissibly shaped by the complainant’s wishes and by an improper “deal” (no evidence offered in exchange for consent);
• the judge did not properly engage with, or give adequate reasons on, future risk of harassment and necessity;
• if the correct rules and principles had been followed, no order would or should have been made because there was no sufficient evidential basis to find a future risk necessitating an order.

3. Analysis

3.1 Statutory Framework: s.5A Protection from Harassment Act 1997

Section 5A permits a court, on acquittal, to make a prohibitory order only if it considers it necessary to protect a person from harassment by the defendant. It is therefore not punitive, and not a substitute for conviction; it is a preventive measure aimed at future protection.

3.2 The Procedural Rules: correcting the misunderstanding

A central point of broader importance is the court’s correction of the procedural route thought to apply in prior summaries. The Crown argued (and the court accepted) that the formulation in R v. McCarren [2023] EWCA Crim 1233; [2024] 1 Cr. App. R. (S.) 27 was wrong insofar as it suggested that CrimPR 31.3(2)-(3) governed prosecution applications for restraining orders.

Instead, the Court of Appeal held that the relevant provisions (under both the 2020 and, similarly, the 2025 Rules) are:

• CrimPR 31.2(1): the defendant must have an opportunity to consider what order is proposed, why, and the evidence, and to make representations;
• CrimPR 31.3(6): where a restraining order is proposed, the prosecutor must serve a draft order “as soon as practicable” and specify the prohibitions proposed (including, on acquittal, those said to be necessary to protect from harassment).

The court acknowledged the Crown’s concession of incomplete compliance, and stressed that these rules are not “mere form”: they exist to ensure that the substantive statutory test is properly addressed with identified facts and evidence.

3.3 Precedents Cited and Their Influence

3.3.1 R v. McCarren [2023] EWCA Crim 1233; [2024] 1 Cr. App. R. (S.) 27

The court treated McCarren as the leading modern summary of restraining order principles, while explicitly correcting one element of its procedural summary. The key principles drawn from McCarren and applied here included:

• Necessity is the “first and most important” criterion (not desirability);
• The order addresses future risk, assessed primarily from the defendant’s conduct;
• Disputed facts may be resolved on the civil standard (balance of probabilities);
• The judge must identify the factual basis and give reasons sufficient to show why the test is met;
• Procedural safeguards are crucial to fairness, and are not displaced by consent.

The court also echoed McCarren’s warning (expressly quoted) that a restraining order is a significant restriction on liberty and “is not to be regarded as a mere bargaining chip in negotiations between the prosecution and the defence.” That warning became central to the court’s critique of how the case was resolved.

3.3.2 R v. Webb-Johnson [2025] EWCA Crim 1084

The court relied on R v. Webb-Johnson [2025] EWCA Crim 1084 to reinforce that it is not enough that an order is “desirable” from the complainant’s perspective. The inquiry is statutory: is it necessary to protect from harassment? This directly underpinned the court’s conclusion that the judge below placed undue weight on the complainant’s expressed wish for permanent non-contact, rather than performing a structured necessity-and-future-risk assessment.

3.4 Legal Reasoning: why the restraining order was quashed

(a) The court’s concern: a drift from statutory necessity to complainant preference

The Court of Appeal accepted that it was legitimate case-management to explore whether a family dispute could be resolved without trial. But it concluded that, once the prosecution’s approach shifted towards securing the complainant’s wishes, the process became distorted: the focus moved from necessity and future risk to what the complainant wanted.

(b) The “offer no evidence if you consent” approach was treated as improper

The CPS letter proposed offering no evidence only on condition of consent to a post-acquittal restraining order. The court regarded that as creating an acute risk that the parties would treat the order as an exchangeable concession—especially where a defendant is in custody. A contemporaneous note that the applicant saw it as a “get out of jail” opportunity illustrated, in the court’s view, the precise danger identified in McCarren: the order becoming a quasi-plea-bargaining device rather than a protective measure justified by evidence.

The court indicated better practice: the prosecution should have separated (i) the decision to offer no evidence from (ii) a distinct decision to apply for a s.5A order, thereby reducing the “bargain” dynamic.

(c) Inadequate engagement with future risk and inadequate reasons

The court held that the judge:

• did not “truly engage” with the statutory focus on future risk of harassment;
• did not adequately identify the factual basis for necessity and proportionality;
• appeared to reason primarily from the complainant’s wish for no contact, including by pointing to the complainant’s ability to apply later to vary/discharge.

That approach was incompatible with the statutory structure: the complainant’s wishes may be relevant, but cannot substitute for a reasoned finding that an order is necessary on evidence demonstrating a sufficient future risk.

(d) The rules are not optional: “substance over form” rejected

The Crown argued that “substantial compliance” should suffice and strict formality might impede the overriding objective. The Court of Appeal rejected that broad approach: the rules are designed to ensure that the substance (facts, evidence, necessity) is properly addressed. The CPS letter was “quite inadequate” as the vehicle for a proper application.

(e) Housing consequences should have been squarely addressed

The court noted that neither counsel raised the applicant’s post-release housing position before the judge, even though the CPS letter itself highlighted that alternative living arrangements were “inherent” in the proposed order. Given that the order effectively excluded the applicant from his home, this practical consequence required express consideration as part of a responsible decision-making process.

(f) The dispositive conclusion: no sufficient evidential basis for necessity

Critically, the Court of Appeal went beyond procedural criticism. It held that had the rules and principles been properly applied, it was satisfied that no restraining order would or should have been made because there was no sufficient evidential basis to find a future risk of harassment necessitating the order.

3.5 Impact and Significance

The decision’s likely practical effects include:

• Correcting the procedural map: clarifies that prosecution applications for restraining orders on acquittal proceed under CrimPR 31.2(1) and 31.3(6), not the notice regime previously summarised in McCarren;
• Reinforced discipline on necessity: courts must address future risk and give a reasoned explanation, not rely on complainant preference or consent;
• Stronger stance against “deal-based” restraining orders: discourages the practice of tying an offer of no evidence to consent to an order;
• Litigation practice: underscores the duty on both prosecution and defence to assist the judge by referencing the correct legal framework (especially where consent is presented);
• Appellate willingness to intervene: confirms that procedurally flawed and under-reasoned orders—particularly those restricting liberty after acquittal—remain vulnerable on appeal.

4. Complex Concepts Simplified

• “Restraining order on acquittal” (s.5A): even if the defendant is found not guilty (or the prosecution offers no evidence), the court can still impose a protective order—but only if it is necessary to protect someone from harassment in the future.
• “Necessity” vs “desirability”: it is not enough that a complainant would feel safer; the court must be satisfied the order is required to prevent a real future risk of harassment.
• “Future risk” assessment: the order is not about punishing past behaviour; it is about preventing future harassment, based on evidence of conduct and context.
• “Civil standard of proof”: if the factual basis is disputed, the judge may decide relevant facts on the balance of probabilities (more likely than not), but must explain what is found and why.
• Why procedure matters: serving a draft order and identifying the basis and evidence are not technicalities; they are safeguards to ensure the court makes a lawful, justified order.

5. Conclusion

[2026] EWCA Crim 710 is a pointed reminder that a s.5A restraining order—particularly following an acquittal—is a serious interference with liberty that demands rigorous attention to (i) the correct Criminal Procedure Rules, (ii) a structured assessment of future risk, and (iii) clear, evidence-based reasons establishing necessity.

The court also signals that prosecutors should avoid framing “no evidence” decisions as conditional bargains for consent to restraining orders. Consent cannot substitute for the statutory test, and the complainant’s preferences cannot displace the court’s duty to decide necessity on evidence.