Smith v REGINA

Factual and Procedural Background

This appeal concerns a restraining order made by Judge McGregor-Johnson at Isleworth Crown Court on 8 May 2012 under section 5A of the Protection from Harassment Act 1997. The order prohibited the Defendant from travelling on any domestic or international commercial airline for three years. The order was made following a trial in which the Defendant was acquitted by reason of insanity of offences relating to criminal damage and interference with the performance of the crew of an aircraft in flight.

The facts leading to the prosecution involved a disturbed incident aboard a Boeing aircraft flying from Mumbai to London Heathrow on 25 September 2011. The Defendant, a passenger on the flight, became agitated, damaged the remote controls of neighbouring passengers’ seats, and attempted to open an exit door during flight, causing alarm and requiring restraint by cabin staff.

Prior to trial, psychiatrists examined the Defendant and agreed he suffered from a psychosis characterized by delusions and hallucinations. The jury accepted that the Defendant was insane under the McNaghten rules and returned a verdict of not guilty by reason of insanity. The trial judge ordered an absolute discharge rather than medical treatment, based on evidence that the Defendant had made a full recovery from a brief reactive psychosis triggered by physical illness, dehydration, exhaustion, and sun exposure during travel.

The restraining order was imposed to prevent the Defendant from travelling on commercial airlines for three years, with the stated purpose of protecting others from a possible recurrence of the Defendant’s psychotic episode during flight.

Legal Issues Presented

1. Whether a restraining order under section 5A of the Protection from Harassment Act 1997 can be validly imposed without identifying a specific victim to be protected.
2. Whether the imposition of a restraining order is justified where the Defendant has been acquitted by reason of insanity and there is no evidence of likely intentional harassment.
3. The proper scope and application of section 5A of the Protection from Harassment Act 1997 in relation to protecting persons from harassment by acquitted defendants.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Pepper v Hart [1993] AC 593	Use of parliamentary materials to aid statutory interpretation.	The court acknowledged the cautious approach courts take to parliamentary materials but accepted that purpose is a legitimate part of interpretation.
Fothergill v Monarch Airlines Ltd [1981] AC 251	Consideration of the purpose of an enactment as part of interpretation.	Quoted to support the view that courts may consider legislative purpose in construing wide statutory language.
Thomas v News Group Newspapers [2001] EWCA Civ 1233	Limits on defining harassment as mere causing of alarm or distress.	Used to reject a broad interpretation that any conduct causing distress amounts to harassment.
Majrowski v Guy's and St Thomas's NHS Trust [2007] 1 AC 224	Definition of harassment involving persistent and oppressive conduct causing fear or distress.	Supported the understanding that harassment involves seriously oppressive and persistent conduct targeted at an individual.
SPC [2001] EWCA Crim 1251	Recognition that mental illness does not preclude conduct amounting to harassment.	Referenced to acknowledge that harassment may arise from conduct caused by mental illness, but intention remains relevant.

Court's Reasoning and Analysis

The court identified several fundamental flaws in the restraining order under section 5A. First, the order failed to identify any specific victim to be protected, a requirement implicit in the purpose of the provision. While section 5A does not explicitly require naming victims (unlike section 5), the court reasoned that it is not rational to dispense with this requirement, as the order must protect particular vulnerable persons, not the public at large.

Second, the court emphasized that the power to impose a restraining order under section 5A is contingent on the likelihood that the Defendant will pursue a course of conduct amounting to harassment, which requires intention to cause harassment. The evidence did not support any finding of likely intentional harassment by the Defendant. Although conduct caused by mental illness may amount to harassment, the Defendant’s actions were not intentional harassment.

Third, the court stressed that the necessity for protection must be genuine and substantial. The judge’s use of the restraining order as a preventive measure against a possible recurrence of mental illness was inappropriate and exceeded the statutory purpose. The order unlawfully restricted the Defendant’s freedom without satisfying the necessity criterion fundamental to section 5A.

The court further contextualized the provision within its legislative history, noting that section 5A was intended to extend protective orders in cases where there was insufficient evidence to convict but a genuine need to protect a victim, primarily in domestic violence contexts. The broad and preventative use in this case was inconsistent with that purpose.

Holding and Implications

The court ALLOWED the appeal and QUASHED the restraining order made under section 5A of the Protection from Harassment Act 1997.

The direct effect is that the Defendant is no longer subject to the travel restriction imposed by the order. The decision clarifies that restraining orders under section 5A must identify specific victims and be based on a demonstrated necessity to protect them from harassment involving intentional conduct. No new precedent beyond this case's facts was established.