Monday, March 26, 2012

You Wait For One Case to Come Along Then Three Arrive At Once

When I learned that courts were to get the power to make a Restraining Order against an acquitted defendant, I was uneasy.
Guilty or Not Guilty is easy to understand, and I am uncomfortable with the idea of : 'Well, not-guilty-but there's-no-smoke-without-fire-so here's-a restraining-order-just-in-case'.
But sometimes, especially in domestic violence cases, the evidence does point towards there being a continuing possibility of violence, and at that point the Order becomes tempting.  
Earlier this year I found myself chairing three consecutive cases in each of which there was a prima facie argument for a Restraining Order (not put forward by the CPS might I add, but by yours truly). When it dawned on CPS Counsel that  an RO was in our minds he grabbed at the merciful relief of the lunch adjournment to look it up.
And as ever, it wasn't that simple. Our first-class clerk found and printed the case of Kapotra, a recent judgment that even a layman such as I can more or less grasp. I recommend those who work in the system to have a look at it, because as so often happens the enthusiasm of ministers and their advisers is tempered and moderated by cool heads in the higher courts. Para 14 lays down:

 Even if he (the judge - ed) was minded to exercise the discretion open to him under Rule 50.9, that judgment itself had to bear in mind the fundamental principle underlying these rules namely that any person faced with the possible imposition of a restraining order should be given proper notice of what is sought, the evidential basis for the application and, in addition, be allowed a proper opportunity to address the evidence and make informed representations as to the appropriateness of such an order. Thus, if the trial judge contemplates making such an order in relation to a defendant immediately following a trial (whatever the result of that trial), provided his or her representative has had the opportunity specifically to address all relevant issues, then consideration can properly be given to exercising the discretion contained in Rule 50.9. Where, as here, no evidence has been offered and there is no established evidential basis for the order, different considerations apply.
So yes, we can make a order, but not on the hoof. It requires proper consideration and the opportunity for argument,  so it will need an adjournment. And in today's straitened times, many a bench will decide to just leave it - as we did.


  1. I've always been uneasy with the New labour laws which proceeded more on innuendo than evidence, no smoke eithout fire etc.
    given the errosion of the protections for those accused it is incmbent on all of those who sit to satisfy themselves of the justice of the situation before embarking on this sort of thing

  2. Dealt with a case where it was indisputable that the complainant lied, lied and lied again. Not only when contacting the police but also in his evidence to the court. As a result glorious acquittal. Prosecutor rises to his feet and asks for RO. I go back over the evidence and point out the lies. Mags make RO. What? Gave no reasons for making the order. None whatsoever. Overturned on appeal as it should be but why on earth was it made in the first place.

    The only way that such an order can be made is on the balance of probabilities if the reasonable doubt hurdle is not passed. Balance of probabilities has no place in a criminal court when it comes to taking action against a defendant. These orders are completely out of place in a criminal jurisdiction. The cps should be instituting proceedings in the County Court if such orders are justified where they have to appear in front of a Judge and not a lay bench. Sorry to be so dismissive of lay benches but that is the simple fact of the matter.

  3. Can't imagine I would ever agree to one being made. Not for the CPS to invoke the County Court but the complainant can.


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