Court of Appeal quashes restraining order
Violet was instructed as fresh counsel on appeal against the restraining order that had been imposed against a background of consent from the parties in the lower court. Following leave from the Single Judge on all three grounds, the appeal was allowed in full.
DA was charged with a single count of intentional strangulation against his brother with whom he lived. The Crown had sent a letter proposing “to offer no evidence on the condition the defendant would agree to a post-acquittal restraining order”. DA, who had until then been remanded in custody, agreed to the restraining order as a ‘get out of jail’ card and the judge, in a short hearing where the Crown were not required to set out the basis of the application or the evidence on which it relied, imposed the order for a period of 5 years. Defence counsel had argued that a period shorter than 5 years would be proportionate. No reasons for the imposition of the order were given save to say “I am quite satisfied that the statutory test for making a restraining order...is made out and that it is necessary and proportionate to do so”; similarly no justification of the 5 year term was evident.
Neither counsel nor the court made inquiry into which of the brothers had tenancy of the property at the time of the application. The impact of the order was to render DA immediately homeless on release from custody. He was subsequently found by staff at St Thomas’ Hospital in serious ill-health, requiring hospitalisation. It was only in preparation for the appeal, following extensive defence efforts to obtain the information through the council, that the Crown sought confirmation of the tenancy.
DA is a man of good character, and this was his first involvement with the criminal justice system.
The Court of Appeal allowed the appeal in full, commenting that the terms of the letter sent by the Crown may have led DA to feel pressured to agree to the restraining order, that restraining orders are not bargaining-chips in negotiations and that letters suggesting that the offering of no evidence is contingent on agreement to a restraining order should be avoided. The court also reiterated that the consent of the parties (particularly in circumstances such as these) does not negate the need for the legal tests of necessity and proportionality to be applied, and for a judge to give reasons for finding them satisfied.
Violet was instructed to represent DA by Adeela Khan of Commons Law.
