In the recent matter of Regina v Sarah Ann Rothwell  EWCA Crim 1047, the Court of Appeal concluded that a Restraining Order had been made as a result of procedural and legal errors and allowed the Appeal, thereby quashing the Order.
Part 31 of the Criminal Procedures Rules states that the person who is made subject of an Order must have had an opportunity to consider the proposed Order and the evidence produced in support, prior to such Order being made.
The Prosecution must serve Notice of Intent to apply for an Order summarising the facts relied on, evidence in support and any Statements or Hearsay Notice.
Helen Holder of Kangs Solicitors outlines the circumstances leading to the Appeal.
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The Case in Focus | Kangs Court of Appeal Solicitors
The circumstances leading to the Proceedings.
- In August 2019, Miss Rothwell sent a Facebook message to the Complainant, with whom she was acquainted,telling her to keep away from an ex-partner of hers.
- As the result of Miss Rothwell sending a further message the following month acknowledging that her original message was in error she and the Complainant agreed to be civil towards one another.
- However, later that month there was a physical confrontation between the parties which resulted in the Complainant receiving hospital treatment.
- Having been charged with Inflicting Grievous Bodily Harm, contrary to section 20 of the Offences against the Person Act 1861, Miss Rothwell pleaded guilty in the Magistrates’ Court and was sentenced at the Crown Court to a Community Order.
- At the time of the Sentencing Hearing, it was not clear whether the Complainant wanted a Restraining Order to be issued and the matter was adjourned.
- Subsequently, the case returned to court and the Prosecution applied for a Restraining Order which was granted for a period of five years, despite objections presented to the court on behalf of Miss Rothwell, who then appealed to the Court of Appeal.
The Court of Appeal.
- The Court of Appeal reviewed R v Debarth which stated ‘the purpose of a restraining order was to prohibit particular conduct, with a view to protecting the victim or victims of the offence and preventing further offending and that the court should have regard to proportionality.’
and R v Richardson which considered ‘whether the order pursued a specific aim and whether the restriction was proportionate and necessary to achieve that aim.’
- In the current proceedings, it was put to the Court of Appeal that it had to take into account that Miss Rothwell was aged twenty four, had no previous convictions, was remorseful, had seen the Complainant and apologised, there had been no further offending and the Probation Service assessed her as a low risk of re-offending and a medium risk of harm to the public.
- The court also had to consider that a conflict of evidence existed. When the Prosecution served the Application for the Restraining Order no supporting evidence accompanied it. It appeared that the Complainant disputed she had seen Miss Rothwell since the offence or that an apology had been tendered. However, a third-party claimed to have witnessed the apology being made and the two parties being together on a number of occasions without incident.
- The Court of Appeal stated that this conflict of evidence about a salient matter, was an important factor as it affected the Court’s ability to assess the risk of repetition of the offending.
- The Court of Appeal quashed the Order and ruled that the manner in which the Prosecution advanced the application was unacceptable as it deprived Miss Rothwell of the ability to test the evidence which allegedly justified the need for the Order. The Judge should not have relied solely on Hearsay Evidence.
How Can We Assist You? | Kangs Ancillary Applications Solicitors
An Ancillary Application for an Order of any nature needs to be given detailed consideration and scrutiny when received to ascertain the nature of the evidence upon which the Prosecution relies.
The potential consequences of not opposing the issue of an Order, or subsequently breaching it, could lead to severe consequences.
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