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DFB, R. v
Factual and Procedural Background
The Appellant was charged on multiple counts including rape, controlling and coercive behaviour and assault arising from incidents between 2014 and 2024. In August 2023 the police seized the Appellant's phone and discovered messages allegedly evidencing sexual offences and coercive behaviour. The Appellant was arrested, interviewed and released on bail with conditions. Further allegations led to additional interviews, charging and remand.
On 14 July 2024 the Complainant provided a written withdrawal/retraction statement saying her earlier recorded accounts were truthful but she wished to withdraw support for prosecution because of adverse effects on her mental and physical health and her children. The trial was listed for September 2024.
On 21 August 2024 the Prosecution notified the defence that it intended to offer no evidence. An application for a restraining order under s.5A Protection from Harassment Act 1997 was uploaded to the digital case system. At a Crown Court hearing on 22 August 2024 before Judge Gold the Prosecution offered no evidence and the Judge made a restraining order for five years; that order was later varied to four years following further hearings in January 2025. This appeal challenges the original making of the restraining order and whether procedural unfairness rendered it void.
Legal Issues Presented
- Whether the restraining order made under s.5A Protection from Harassment Act 1997 following an acquittal (where the prosecution offered no evidence) was made fairly and in compliance with the Criminal Procedure Rules (notably r.31), including requirements as to serving a written application, identifying evidence relied on and serving hearsay notices.
- Whether procedural defects in the original hearing were cured by a subsequent variation of the order or whether the original order must be quashed.
Arguments of the Parties
Appellant's Arguments
- The original application was procedurally defective and unfair because the Prosecution failed to submit a written application and relied only on a draft order uploaded to the digital case system.
- The Prosecution relied solely on hearsay (an officer's account of recent conversations with the Complainant) without serving hearsay notices or statements required by the Criminal Procedure Rules.
- By reference to R v Picken the Judge should not have made the order without positive evidence that the Complainant wanted it; the subsequent variation did not cure the initial unfairness.
Respondent's Case
- The Prosecution submitted there was no unfairness: the Judge had before him the Complainant's retraction statement and material uploaded to the digital case system which identified the evidence relied on and supported necessity for the order.
- The Prosecution relied on historical messages and the retraction statement showing the Complainant did not want contact save regarding the children; reference was made to R v Baldwin as supporting sufficiency of material to justify an order.
- The OIC had spoken to the Complainant and confirmed she wanted the order; although no hearsay notice was served, the court was informed of this in the hearing.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Picken [2006] EWCA Crim 219 | The judge should ascertain the complainant's position before making a restraining order; avoid making an order where the complainant wishes to continue relations. | The court distinguished Picken on the facts, finding that here the Judge did have material as to the Complainant's position; Picken did not preclude making an order after acquittal but informed the fairness analysis. |
| R v Baldwin [2021] EWCA Crim 417 | Principles for s.5A orders after acquittal: civil standard, necessity to protect from harassment, must be made on evidence and comply with Criminal Procedure Rules r.31; requirement that person directed to the order can consider evidence and make representations. | The court applied Baldwin as directly analogous, endorsing its principles and holding that procedural requirements and natural justice under r.31 must be observed; Baldwin supported quashing where process was unfair. |
| John Baldwin [2021] EWCA Crim 703 | Authority on procedure and fairness for restraining orders where no evidence called at trial. | Referred to in assessing analogous authority; used to support the proposition that procedural safeguards are required. |
| R v Major | Civil standard of proof applies to restraining orders under s.5A (see paragraph reference in cited authority). | Relied on to underline that s.5A orders are civil in nature and require an evidential basis to satisfy the applicable standard. |
| R v Smith | Requirement to identify the victim and that the order must be necessary to protect a particular person (paragraphs cited). | Used to emphasize identification and necessity elements when making a restraining order. |
| Khan [2021] EWCA Crim 1526 | Unfairness arising where applicant had no opportunity to challenge evidence, cross-examine, or advance defence evidence when an order was made in absence or without proper hearing. | Applied to show that procedural unfairness will typically lead to setting aside the order; supported the decision to quash. |
| Bernard -v- The State of Trinidad and Tobago [2007] 2 Cr App R 22 | Principle that consequences of an unfair trial are a matter of degree but ordinarily result in setting aside the decision. | Used in remedy discussion to explain when an unfair process leads to quashing and possible retrial or fresh application. |
| Serafin -v- Malkiewicz [2020] 1 WLR 2455 | Remedial principle on the effect of an unfair trial and that a judgment resulting from an unfair trial cannot be relied upon. | Referenced in discussing appropriate appellate remedies where procedural unfairness is established. |
| Jones -v- National Coal Board [1957] 2 QB 55 | Authority on the necessity of a fair trial before a court can properly decide rights; unfair trial vitiates judgment. | Quoted in remedy analysis to support setting aside decisions resulting from unfair process. |
Court's Reasoning and Analysis
The court analysed the statutory power under s.5A Protection from Harassment Act 1997 to make restraining orders after acquittal and the procedural framework in the Criminal Procedure Rules (r.31 and related rules). It emphasised that such orders are civil in nature but must be made on evidence and subject to rules of fairness: the person subject to the order must have an opportunity to consider the proposed order, the reasons for it and the evidence in support, and to make representations.
The court examined whether the Prosecution complied with r.31 requirements: serving a draft order, identifying evidence relied on, providing notices and written statements where hearsay was to be used, and giving opportunity to challenge hearsay (including hearsay notices and potential applications to cross-examine). The court noted material authorities (notably Baldwin and Khan) requiring a structured process where no evidence is called at trial.
Applying these principles to the facts, the court found that although the Judge had before him the Complainant's retraction statement and other materials uploaded to the digital case system, the procedural safeguards in r.31 (in particular relating to the serving of notices and the structured handling of hearsay) were not followed and the hearing was procedurally unfair. The court acknowledged the strength of the retraction statement but concluded that the procedural defects vitiated the decision. The subsequent variation of the order did not remedy the original unfairness.
Holding and Implications
HOLDING: The Court allowed the appeal and QUASHED the restraining order made on 22 August 2024.
Implications: The direct effect is that the restraining order is set aside. The court observed that the prosecution remains free to make a fresh application under s.5A to the Crown Court if it elects to do so; the variation made later did not cure the procedural unfairness of the original hearing. The decision does not purport to establish a new legal principle beyond applying existing authorities requiring compliance with r.31 and procedural fairness when making s.5A orders after acquittal.
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