Resisting Post-acquittal restraining orders
15 Feb 2019
Angelina Nicolaou regularly appears for defendants in Magistrates and Crown Court proceedings where post-acquittal restraining orders can be applied for at the end of a trial. She has recently successfully appealed the imposition of a post-acquittal restraining order at Kingston Crown Court. Angelina was instructed by Charlotte Rowden of Hanne & Co Solicitors.
Post-acquittal Restraining Orders
As an advocate, before you think about congratulating yourself for securing an acquittal in the criminal courts, it is important to be alive to the possibility of an application for a post-acquittal restraining order (PARO). These applications are sometimes made by the Prosecution at the conclusion of a case where the defendant has been acquitted for offences such as harassment. Such applications are not restricted to cases where domestic violence is alleged.
For a defendant to be acquitted of a criminal offence after trial the Prosecution would have been unable to discharge their burden of proving their case beyond reasonable doubt. However, an application for a PARO is determined on the balance of probabilities.
The consequences for an individual of being subject to a PARO are wide-reaching. Particularly in a case where a defendant has successfully brought a defence that the allegations made against him/her were malicious in nature, the imposition of a restraining order exposes an individual to further potential criminal charges in the form of breach of a restraining order, which can lead to a custodial sentence. Naturally if the Protection from Harassment Act 1997 were allowed to be used a vehicle to effectively harass an acquitted defendant this would be a perverse outcome, and completely contrary to the intention of Parliament. The assessment as to whether to impose such an order is therefore a serious exercise.
The Legal Framework:
Restraining Orders can be imposed upon a defendant who is acquitted by virtue of section 5A of the Protection from Harassment Act 1997, which provides:
“A court before which a person (“the defendant”) is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order”
Establishing whether or not it is ‘necessary’ to ‘protect a person from harassment by the defendant’ must be established on the balance of probabilities. However, this is a forward looking exercise, and a restraining order must address future risk. The Court of Appeal has been clear that the circumstances where a PARO would be necessary is in a type of case where there is “clear evidence” that the victim needs protection but there is insufficient evidence to convict of the particular charges before the court.
In situations where Courts may be too eager to impose a PARO without sufficient thought, it is worth a reminder that the test of necessity arises out of an individual’s right to private and family life (as provided for by Article 8 of the European Convention of Human Rights), for which there shall be no interference except where necessary and in accordance with the law. The test of necessity is incredibly important and should not be done in a cursory manner.
Procedure and funding
Legal aid is not ordinarily available for appeals against PAROs, as, despite the potential impact on a person’s private life, it is often deemed to not meet the ‘interests of justice’ test as the defendant has in fact been acquitted of the criminal charges. As such, every effort should be made to resist such a restraining order at the stage where its imposition is first considered. In accordance with Part 50 of the Criminal Procedure Rules (and as emphasised by the Court of Appeal in the case of R v Trott [2011] EWCA Crim 2395) the acquitted defendant should be put on notice that such an application is to be made against them, and should be afforded the opportunity to make representations in respect of the application.
Back to News