Auguste, R. v

Factual and Procedural Background

On 26 February 2025 the Appellant was acquitted after the prosecution offered no evidence of the single offence charged (intentional strangulation). On acquittal the Crown Court made a post‑acquittal restraining order under s.5A Protection from Harassment Act 1997 prohibiting the Appellant from contacting the Plaintiff and from attending the property at [Number] Main Street for five years. The Appellant applied for leave to appeal the restraining order and for an extension of time; the Court of Appeal granted the extension and leave to appeal. The appeal concerns both procedural compliance with the Criminal Procedure Rules applicable to restraining orders and the substantive tests of necessity and proportionality under s.5A(1).

Legal Issues Presented

1. Whether the Appellant should be granted an extension of time and leave to appeal the restraining order.
2. Which Criminal Procedure Rules apply to a prosecution proposal for a restraining order on acquittal and whether they were complied with.
3. Whether the statutory test in s.5A(1) — that a restraining order is necessary to protect a person from harassment by the defendant — was met on the evidence before the Crown Court.
4. Whether the restraining order, including its duration and effect on the Appellant's housing, was proportionate.
5. The weight to be given to consent or agreement by the Appellant obtained in the course of negotiations in lieu of a prosecution.

Arguments of the Parties

Appellant's Arguments

• There was inadequate compliance with the applicable Criminal Procedure Rules for a restraining order application.
• The s.5A(1) necessity test was not satisfied: the evidence comprised disputed witness statements recounting a single incident with no corroboration and no history of physical violence.
• The restraining order was disproportionate, foreseeably rendering the Appellant homeless; the five‑year duration was excessive.
• The Appellant consented to the order under a bargaining pressure to secure release, undermining the validity of the procedural process and the court's assessment.

Crown's Arguments

• The applicable Criminal Procedure Rules differ from those stated in some authorities, but the substance of the rules was complied with by Company B's letter of 21 February 2025 and by serving the witness statements in the criminal proceedings.
• The witness statements of the Plaintiff established necessity: allegations of strangulation lasting "a minute or two" and threats to kill supported a future risk assessment.
• No corroboration is required for a s.5A order; disputed evidence is addressed by applying the civil burden where necessary.
• The Appellant had legal advice and consented; the order was proportionate, including exclusion from the property if the Plaintiff was the tenant.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court granted the extension of time and leave to appeal. It first identified the correct procedural rules in the Criminal Procedure Rules applicable to envisaged restraining orders (rules concerning behaviour orders and specific requirements for restraining orders) and agreed with the Crown's submission that an aspect of principle (3) in McCarren was wrong about which sub‑rules applied. Despite that correction, the Court found material non‑compliance with the procedural requirements by Company B: the prosecution had not made a proper application but had sent a letter offering no evidence in exchange for the Appellant's agreement to a restraining order. That approach redirected focus to a bargaining outcome and to the Plaintiff's wishes rather than to satisfying the statutory necessity test based on an evidential foundation.

The Court analysed the substantive decision below and concluded the judge did not identify or explain the factual basis for finding a future risk of harassment nor did he give adequate reasons showing how the evidence met the s.5A(1) necessity test. Counsel had not reminded the judge of the principles to be applied (as summarised in McCarren) and there was no meaningful assessment of future risk or of the Appellant's housing consequences despite those having been raised in the prosecution correspondence. The Court emphasised that procedural safeguards exist to ensure the necessary evidential and legal foundation for restraining orders and that reliance on the Plaintiff's expressed wishes or on a consent obtained as part of negotiations cannot substitute for that foundation.

Applying those principles to the material before the Crown Court (primarily two witness statements recounting a single disputed incident and no corroboration), the Court concluded there was no sufficient evidential basis to find a future risk of harassment necessitating the order. The Court therefore found the order to be unjustified on the substantive tests and procedurally flawed.

Holding and Implications

APPEAL ALLOWED; RESTRAINING ORDER QUASHED

Direct effect: the restraining order made on 26 February 2025 was quashed. The Court also granted the extension of time and leave to appeal. Broader implications articulated by the Court include (a) correction of a specific procedural point relied on in prior authority regarding which sub‑rules apply to prosecution proposals for restraining orders, and (b) a firm restatement of the need for strict adherence to the procedural safeguards and for judges to identify the factual basis and give clear reasons when imposing restraining orders on acquittal. The Court criticised the use of prosecutorial bargaining (offering no evidence in exchange for consent to an order) where it diverts attention from satisfying the statutory necessity and proportionality requirements.