Summary of Opinion

Factual and Procedural Background

This opinion concerns the Defendant, who on 17 February 2025 was convicted after trial at the Crown Court of one count of acting in breach of a restraining order contrary to section 363 of the Sentencing Act 2020. At trial the Defendant accepted that a restraining order had been made and that he had sent the communications relied on by the prosecution. His defence was that he had a "reasonable excuse" for doing so; the jury rejected that defence and convicted. The Defendant applied for leave to appeal on the ground that the trial judge misdirected the jury about the burden and standard of proof applicable to the reasonable excuse defence. The prosecution conceded that there was a misdirection but did not accept that the conviction was therefore unsafe. The Registrar referred the application to the Full Court.

The underlying facts are that the restraining order was made by the Magistrates' Court on 29 March 2023 following complaints by the Complainant. The order prohibited the Defendant from contacting the Complainant except via solicitors, Social Services, or the Family Court in relation to child contact or division of matrimonial assets, and had a duration of two years. The parties had previously been married and were divorced; they had two sons aged 8 and 10.

During the period of the restraining order the Defendant sent a number of text messages to the Complainant in relation to child contact and other matters. The Complainant had changed her phone number and only discovered the earlier messages when she switched on her old phone on 7 September 2024. She reported the matter to the police, which led to the Defendant's arrest and the Crown Court prosecution. The Crown's particulars were limited to messages sent in the early days of September 2024. In interview and in evidence the Defendant accepted sending the messages and that he knew the terms of the order. He said he acted out of emotion and because he was concerned about the welfare of his children and wished to re-establish telephone contact; he said the Family Court route was not used because of time and cost.

Legal Issues Presented

1. Whether the trial judge misdirected the jury about the burden and standard of proof applicable to the defence of "reasonable excuse" under section 363(1) of the Sentencing Act 2020.
2. If there was misdirection, whether that misdirection rendered the conviction unsafe and required quashing.
3. Whether, if the conviction is quashed, a retrial should be ordered and on what terms (including directions as to indictment service, venue and bail).

Arguments of the Parties

Prosecution's Arguments (Attorney Livingston)

• The prosecution accepted that the judge misdirected the jury on the legal test for reasonable excuse but submitted that, on the facts, it was unlikely the jury could have been in doubt about whether the Defendant had a reasonable excuse; the Defendant knew of the order, understood its terms and nevertheless contacted the Complainant in breach of it.
• For the purposes of seeking a retrial, the prosecution pointed to the lack of any protective order currently in force and to the Defendant's previous breaches as reasons why a retrial should be ordered to uphold compliance with court orders and to protect the Complainant.
• The prosecution stated it had no instructions to apply under section 5A of the Protection from Harassment Act 1997 but the court subsequently remitted the issue for the Crown Court to consider.

Defendant's Position (Attorney Gannon)

• The Defendant's case at trial and on appeal was that his messages were made primarily with the welfare of the children in mind and therefore amounted to a reasonable excuse for contacting the Complainant.
• In evidence the Defendant said he had tried not to use the Family Court route because of the anticipated cost and delay.
• In the Court of Appeal the defence did not resist an order for a retrial.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Evans [2004] EWCA Crim 3102	Part of a series of authorities establishing the proper approach to burden and standard of proof where a defendant relies on a defence akin to "reasonable excuse" (in context of protection from harassment provisions).	The court relied on this authority as part of the line of cases establishing that once a defendant has raised reasonable excuse evidentially, the burden is on the prosecution to satisfy the jury so that they are sure the defendant had no reasonable excuse.
R v Chambers [2009] EWCA Crim 1570	Same legal principle as above (allocation of burden/standard once defence is raised evidentially).	Applied by the court to show that the trial judge's direction (placing burden on defendant to prove reasonable excuse on balance of probabilities) was contrary to these authorities.
R v Damji [2020] EWCA Crim 1774	Confirmed the approach to burden and standard of proof in similar offences (noting relevant paragraphs at [41] and [48]).	Relied upon to confirm that earlier protection-from-harassment and related provisions are precursors to section 363(1) and that the prosecution must prove absence of reasonable excuse.
R v Leslie Arden [2022] EWCA Crim 906	Recent authority restating the rule that the prosecution must prove absence of reasonable excuse once the defendant has raised the issue evidentially (see [16]).	Used to show that the line of authorities applies to offences in materially identical terms to section 363(1), supporting the conclusion that the judge's direction was legally incorrect.
R v AB [2021] EWCA Crim 692	Practice direction: the sentencing remarks or transcript should be sent to the prosecution for provision to the Crown Court judge conducting any subsequent sentencing hearing.	The court referred to this authority when directing that the sentencing remarks transcript be obtained by the Registrar and provided to the prosecution to ensure availability to any sentencing judge after retrial.

Court's Reasoning and Analysis

The court first accepted that the Recorder's directions to the jury and the written Route to Verdict were legally incorrect. The Recorder had instructed the jury that once the prosecution had proved the actus reus (which was admitted), the defence of reasonable excuse was for the Defendant to prove on the balance of probabilities. Both parties accepted that instruction at trial, but it was contrary to established authority. The court noted a series of decisions of the Court of Appeal dealing with protections against harassment and related offences which, although concerned with precursor statutory provisions, set out the governing principle: a defendant must raise a defence of reasonable excuse evidentially but, once that is done, the burden passes to the prosecution to prove beyond reasonable doubt that the defendant did not have a reasonable excuse.

Having found the misdirection, the court addressed whether the conviction was unsafe. The Crown argued that on the facts it was difficult to see how the jury could have had reasonable doubt about the absence of a reasonable excuse: the Defendant knew of the order, understood it, and contacted the Complainant in breach of a clearly worded order that provided specific permitted routes for child contact. The court acknowledged force in that submission: the Defendant admitted knowledge and the facts were not in dispute; the prosecution had not challenged his stated motives, only their reasonableness.

The court nevertheless concluded that the misdirection could not be treated as harmless. It emphasized that some of the Defendant's messages were not about the children and so could not be covered by the sentimental account of acting solely for the children's welfare. The court observed that some of the Defendant's defence amounted to disagreement with or an unwillingness to comply with the order, which Parliament was unlikely to have intended to validate as a "reasonable excuse" simply because the recipient was the Defendant's children. The court also noted that the Recorder might have given the jury more detailed legal directions about what could or could not amount to a reasonable excuse. Crucially, the court found that the Defendant's case had not been left to the jury in accordance with the correct law on burden and standard of proof. For that reason the court concluded the conviction was unsafe.

The court then considered appropriate outcomes. It granted leave to appeal, quashed the conviction on the single count, and ordered a retrial on that count. It gave specific procedural directions about service of a fresh indictment and arraignment, imposed a reporting restriction pending the outcome of proceedings below, considered bail conditions (and imposed a bail condition prohibiting contact with the Complainant other than as permitted by the restraining order), and remitted to the Crown Court the question whether to proceed under section 5A of the Protection from Harassment Act 1997. The court also directed that sentencing remarks (if any) be transcribed and provided to the prosecution for any future sentencing judge, following established practice.

Holding and Implications

CORE RULING: The conviction is quashed and a retrial on the single count is ordered.

Direct consequences for the parties:

• The Defendant's conviction for breach of the restraining order is quashed.
• The court ordered a retrial on the single count. A fresh indictment is to be served in accordance with the Criminal Procedure Rules (rule 10.8(2)) within 28 days of the order and the Defendant is to be re-arraigned within two months; the venue is to be determined by the presiding judge for The Circuit.
• A reporting restriction under section 4(2) of the Contempt of Court Act 1981 is imposed until the conclusion of the proceedings in the court below, with provision for notification to lift the restriction after conclusion.
• The Defendant was granted bail on condition that he must not contact the Complainant other than indirectly via the prescribed channels in terms mirroring the restraining order (solicitors, Social Services, or the Family Court in relation to child contact/division of assets); a residence/contact address is to be provided for court communication or a residence condition added to bail.
• The case is remitted to the Crown Court to consider whether to proceed under section 5A of the Protection from Harassment Act 1997.
• The court ordered that a transcript of sentencing remarks (if any) be obtained and provided to the prosecution for any sentencing hearing after retrial, following the practice noted in R v AB.

Broader implications: The decision applied established authorities on burden and standard of proof in reasonable-excuse defences to the formulation in section 363(1) of the Sentencing Act 2020 and reinforces that where a defendant raises reasonable excuse evidentially, the prosecution must thereafter satisfy the jury that there was no reasonable excuse. The opinion did not purport to create new legal principle beyond applying that settled line of authority; the practical effect here is the quashing of the conviction and the ordering of a retrial on the single count.