Summary of Judgment — Court of Appeal (Criminal Division)

Factual and Procedural Background

This summary is based exclusively on the content of the provided opinion.

The complainant ended her relationship with the defendant on 1 March 2024. On 19 March 2024 a deputy district judge in the Family Court made, without notice to the defendant, a non-molestation order under section 42 of the Family Law Act 1996. The order included prohibitions (including no phone or text contact and no attending the complainant's home) and a penal notice warning of criminal consequences for breach. The order stated that it would be effective against the defendant once personally served on him or once he was made aware of the terms of the order "whether by personal service or otherwise."

The prosecution's case was that the order and related documents (including notice of a hearing on 29 April 2024) were sent to the defendant on 22 April 2024 by WhatsApp; the defence disputed that the defendant received those documents. The defendant was charged on indictment with six alleged breaches of the non-molestation order occurring between 22 and 27 April 2024 (phone contact on 22 April; text messages on 23 and 24 April; visiting the complainant's home on 23 April and twice on 27 April). The defendant admitted separate counts of common assault and possession of a small quantity of cocaine but denied the breaches of the non-molestation order and pleaded not to having knowledge of the existence of the order.

At a plea and trial preparation hearing in May 2024 a judge observed that the prosecution might have difficulty proving service. At trial before the recorder in October 2024, after initial discussions the recorder accepted the prosecution's submission to call its evidence and then consider any submission of no case to answer. The prosecution called the complainant, a process server's written statement (stating service by WhatsApp and a subsequent telephone call), contemporaneous telephone records showing contact, and later screenshots from the process server's phone purporting to show WhatsApp messages including a message referring to a hearing date. The process server was not available to give oral evidence; a further (undated) statement of the process server served the day before trial was accepted by the defence. An application for an adjournment to call the process server was refused by the recorder.

At the close of the prosecution evidence the defence made a submission of no case to answer. The recorder heard argument in the absence of the jury, upheld the submission and then gave reasons in the presence of the jury. The recorder concluded that the prosecution had not proved service or that the defendant was aware of the full terms of the order and relied on the Family Procedure Rules in reaching part of his conclusion. The prosecution sought leave to appeal the terminating ruling to the Court of Appeal pursuant to section 58 of the Criminal Justice Act 2003; the Court of Appeal heard the appeal and reversed the recorder's ruling, directing that the Crown Court proceedings continue and that the trial start again (to be allocated to a different judge at a different court centre).

Legal Issues Presented

1. Whether, in respect of a non-molestation order made without notice under s.45(1) of the Family Law Act 1996, criminal liability under s.42A requires proof of service of the order as a precondition to prosecution, or whether proof that the accused was aware of the existence of the order is the statutory requirement.
2. Whether a Family Court order which included the phrase "or otherwise" (in the clause making the order effective once the respondent "is made aware of the terms of this order, whether by personal service or otherwise") contravened the Family Procedure Rules 2010 (in particular rule 6.19(3)) such that it was defective and unenforceable for the purposes of criminal liability for breach.
3. Whether the prosecution evidence as adduced (including WhatsApp messages, telephone records and the complainant's account) was legally incapable of supporting a finding of service/awareness so that the recorder was entitled to uphold a submission of no case to answer under the two limbs of R v Galbraith.
4. Whether the recorder's ruling was wrong in law or was a ruling that it was not reasonable for him to have made (the statutory standard for reversal on appeal under section 67 of the Criminal Justice Act 2003).

Arguments of the Parties

Prosecution's Arguments

• The recorder was wrong in law to treat service as a prerequisite of criminal liability for breach of a non-molestation order made without notice; section 42A(2) requires proof of awareness of the existence of the order, not personal service.
• Even if service were required, the Family Court order (including communication by WhatsApp) was valid and not defective; alternatively, any defect in form did not render the order unenforceable unless and until set aside.
• The recorder's decision to allow the submission of no case to answer under both limbs of R v Galbraith was not reasonable because there was sufficient evidence for the case to go to the jury.

Defendant's Arguments

• There was no error of law in the recorder's approach. The defendant conceded that personal service was not strictly required, but maintained that it was necessary for the prosecution to prove that the defendant was aware of the full terms of the order and of the penal notice.
• The evidence as to service was contradictory; at best it proved that the process server had informed the defendant that "documents" had been sent and of the return date, not that the defendant knew the terms of the order. Accordingly, the recorder was correct to allow the submission of no case to answer under the second limb of R v Galbraith.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Galbraith	The two-limbed test for when a submission of no case to answer should be upheld (i.e., whether there is evidence on which a jury properly directed could properly convict; and whether the evidence is so weak that no reasonable jury could convict).	The recorder had relied on both limbs to uphold the submission; the Court of Appeal held that the recorder's conclusion that the prosecution evidence was incapable of proving service or awareness was one which it was not reasonable for him to have made.
R v Kirby [2019] EWCA Crim 321; [2019] 4 WLR 131	The long-standing principle that an apparently valid court order must be obeyed unless and until it is set aside; respect for the rule of law supports enforcement of orders that are valid on their face.	The Court relied on this authority to emphasise that even if a deputy district judge's order contained wording that might arguably be defective, it remained valid and binding unless set aside, and therefore defects were not an automatic ground for saying there was no case to answer.

Court's Reasoning and Analysis

The Court of Appeal undertook a step-by-step analysis confined to the material in the trial evidence and the applicable statutory and procedural provisions.

1. Evidence of Service and Awareness: The court found there was ample evidence on which a jury could conclude that the non-molestation order and related documents were sent to the defendant via WhatsApp and received by him on 22 April 2024. The prosecution evidence included the complainant's account (which supported service on 22 April), a process server's written statement of service asserting service by WhatsApp and a telephone call to the defendant, telephone records showing contact between the process server and the defendant on 22 April, and screenshots from the process server's phone consistent with messages sent on the evening of 22 April. Although one screenshot contained a reference to the hearing being "tomorrow", the Court held it was open to the jury to find that that was a mistake and that the order was in fact served on 22 April.
2. Legal Requirement under Section 42A(2): The Court focused on the statutory wording of section 42A(2) of the Family Law Act 1996 which provides that, for an order made without notice, a person can be guilty of an offence under the section only in respect of conduct engaged in at a time when he was aware of the existence of the order. The court treated those words as deliberately chosen by Parliament to require awareness of existence (not necessarily knowledge of the full terms), thereby denying a defence to someone who was aware of the order but deliberately chose not to inform himself of its terms. Whether ignorance of the terms might amount to a reasonable excuse would be a matter for the defendant to raise with evidence at trial.
3. Family Procedure Rules and Validity of the Order: The recorder had concluded that the deputy district judge's wording (including "or otherwise") contravened the Family Procedure Rules (rule 6.19(3)) and thereby undermined enforceability. The Court of Appeal rejected that approach. First, the Court did not accept that sending the order by WhatsApp was not a permissible means of making the defendant aware of the terms where the Family Court order permitted it. Second, even if the wording arguably contravened the Family Procedure Rules, an order of the court remains valid and binding on the respondent unless and until set aside; any alleged defect might be relevant to a defence (reasonable excuse) but did not justify a finding of no case to answer at the close of the prosecution evidence.
4. Application of the Galbraith Test and Reasonableness of the Recorder's Decision: On the application of Galbraith, the Court found that the recorder's determination that the prosecution evidence was incapable of proving service, and incapable of proving awareness of the terms of the order, was a conclusion which it was not reasonable for him to have reached. Given the combination of documentary evidence and the complainant's testimony, the evidence was sufficient to go to the jury.
5. Outcome of Analysis: For those reasons the Court concluded the recorder was wrong in law and his ruling could not stand. The Court therefore reversed the no-case ruling and directed that the Crown Court proceedings continue; practically, this required the trial to start again before a different judge at a different court centre.

Holding and Implications

RULING REVERSED; PROCEEDINGS TO CONTINUE.

Holding:

• The Court of Appeal reversed the recorder's ruling that the defendant had no case to answer on the alleged breaches of the non-molestation order. The recorder's ruling was found to be wrong in law and to be a ruling that it was not reasonable for him to have made.
• The Court directed that the Crown Court proceedings shall continue and that the trial is to start again; the Court considered it appropriate that the retrial be before a different judge at a different court centre and requested allocation accordingly.

Implications:

• Direct consequence for the parties: the indictment remains live and the accused will face a retrial on the alleged breaches of the non-molestation order. The jury that had been empanelled was discharged and the trial must recommence.
• On the law: the Court affirmed that, for non-molestation orders made without notice, the statutory requirement is awareness of the existence of the order (s.42A(2)) rather than proof of personal service as a precondition to prosecution; moreover, an apparently valid court order is binding unless and until set aside (citing R v Kirby). Any arguable procedural defect in the Family Court order is not, without more, a basis for a no-case ruling at the close of the prosecution evidence.
• The Court did not purport to create a new principle of law beyond applying established authorities; the decision's immediate effect is procedural and dispositive of the terminating ruling below rather than a wider change in legal doctrine.
• Reporting restrictions: the Court discharged the reporting restrictions that would otherwise apply under section 71 of the Criminal Justice Act 2003 and permitted publication of the judgment as transcribed and approved, but expressly directed that no report should identify any person involved in the proceedings (defendant, complainant or process server) beyond the anonymised terms used in the judgment.

Additional Procedural Notes

The prosecution complied with the formalities for an appeal under section 58 of the Criminal Justice Act 2003 and provided the required "acquittal undertaking" under section 58(8). The Court observed that the recorder's decision to give reasons in the presence of the jury was contrary to conventional practice and would in any event have precluded the jury continuing to hear the case even if the prosecution had sought an expedited appeal. The Court recommended that, once allocated, a hearing to mention and fix should be listed promptly and that any application in relation to bail can be addressed at the usual stage.

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Note: This summary anonymises all personally identifiable information in accordance with the instructions given and is confined to the material contained in the provided opinion. No additional facts or inferences have been introduced.