REGINA v Major

Factual and Procedural Background

The Appellant was charged on indictment with an offence of putting a person in fear of violence through harassment, contrary to section 4 of the Protection from Harassment Act 1997 ("the Act"). After a five-day trial at Maidstone Crown Court, the Appellant was acquitted of the section 4 offence, but the jury was unable to reach a verdict on the alternative offence of harassment contrary to section 2 of the Act and was discharged from deciding on that count.

Following the acquittal, the trial judge, at the prosecution's invitation, made a restraining order on acquittal pursuant to section 5A of the Act. The Appellant applied for leave to appeal the restraining order, which was granted by the full court.

The case involved allegations made by a 16-year-old student ("the Victim") who claimed that the Appellant was threatening and abusive towards her on multiple occasions during 2008, causing distress. The Appellant denied these allegations and gave evidence to the contrary, supported by witnesses. The jury acquitted the Appellant of the section 4 offence, possibly because they found only one occasion of a direct threat of violence, insufficient for that charge.

Legal Issues Presented

1. Whether the trial judge erred in law by imposing a restraining order on acquittal where the uncontested facts did not provide a foundation for such an order.
2. Whether the trial judge erred in law by imposing a restraining order without making a clear finding as to the factual basis for imposing that order.

Arguments of the Parties

Appellant's Arguments

• The power to make a restraining order on acquittal is exceptional because it can be imposed without the defendant's consent, unlike binding over orders.
• A restraining order following acquittal should be made only rarely and only where there is uncontested evidence to justify it, so as to respect the jury's verdict.
• In this case, there was no uncontested evidence sufficient to justify the restraining order.
• The making of the restraining order breaches the Appellant's Article 6(2) rights (presumption of innocence).

Court's Observations on Arguments

• The court rejected the submission that an order may only be made on uncontested facts or used rarely, emphasizing Parliament's intention that where protection is necessary, a restraining order should be made.
• The court noted that the standard of proof for making a restraining order is the civil standard (balance of probabilities), not the criminal standard.
• The court recognized that the evidence for the order may include evidence not sufficient for criminal conviction but sufficient to show a risk of future harassment.
• The court emphasized that compliance with bail conditions is a relevant consideration but not determinative against making an order.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Middlesex Crown Court ex parte Khan [1997] 161 JP 240	Use of binding over orders and their rarity following acquittal.	The court considered the precedent but rejected the submission that restraining orders on acquittal should be used only rarely or on uncontested facts, noting Parliament's intention for protective orders.
Minelli v Switzerland 5 EHRR 54 at para 37	Article 6(2) rights - presumption of innocence and implications of orders made post-acquittal.	The court distinguished the case, noting that in the present case the restraining order was expressly not a reflection of guilt, thus not violating the presumption of innocence.
Director of Public Prosecutions v Dziurzynski [2002] EWHC 1380 (Admin)	Context of the Protection from Harassment Act 1997 and its intent to address stalking and harassment.	The court referenced this case to explain the legislative intent behind the Act and the rationale for restraining orders even absent conviction.

Court's Reasoning and Analysis

The court began by examining the relevant statutory provisions of the Protection from Harassment Act 1997, particularly section 5A which permits a restraining order to be made on acquittal if necessary to protect a person from harassment. The court noted that the restraining order is a civil behavioural order, subject to the civil standard of proof (balance of probabilities), rather than the criminal standard.

The court emphasized that the restraining order is intended to address future risk of harassment, not to punish past conduct or to contradict the jury's verdict. The evidence for such an order may include conduct that falls short of criminal harassment but which, if repeated, could amount to harassment, thus justifying protection.

The court rejected the argument that an order should only be made on uncontested facts, holding that Parliament intended protection to be afforded where necessary, even if the criminal standard was not met. The court also noted that compliance with bail conditions is a relevant but not decisive factor in deciding whether to impose a restraining order.

Regarding the requirement for a factual basis, the court held that a judge making such an order must identify the factual basis and provide reasons, similar to sentencing requirements under the Criminal Justice Act 2003 and practice directions for binding over orders. This ensures transparency and respects the jury's verdict.

In the present case, although the trial judge had heard the evidence and was satisfied protection was necessary, the reasons given for the restraining order were insufficiently detailed to ascertain the factual basis or standard of proof applied. Consequently, the court could not conclude that the order was justified.

The court also expressed concern about the wording of the standard form restraining order used, suggesting amendments to better reflect the statutory provisions and avoid overbroad terms.

Holding and Implications

The court QUASHED the restraining order imposed on the Appellant following acquittal, on the basis that the trial judge failed to adequately state the factual basis and reasons for the order.

The direct effect of this decision is the removal of the restraining order against the Appellant. The court did not set a new precedent limiting the use of restraining orders on acquittal but clarified the necessity for clear reasons and factual basis when such orders are made. The decision reinforces the civil standard of proof for these orders and confirms that they serve a protective function rather than a punitive one.