Neutral Citation Number: [2013] EWCA Crim 939 
Case No: 201300980/A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 23 May 2013
 
B e f o r e:

LORD JUSTICE FULFORD 

MR JUSTICE KING 
 
THE RECORDER OF REDBRIDGE
(His Honour Judge Radford QC)
(Sitting as a Judge of the Court of Appeal Criminal Division) 
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R E G I N A 

v 

JINNY JOSE
 
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Miss N Goffe [solicitor advocate] appeared on behalf of the Appellant 
Miss K Reiff‑Musgrove appeared on behalf of the Crown 
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J U D G M E N T 
1.	MR JUSTICE KING:  This is an appeal with leave of the single judge against the making of a restraining order under the provisions of section 5A of the Protection from Harassment Act 1997 following the appellant's acquittal on 25 January 2013 in the Crown Court at Aylesbury before His Honour Judge Roberts QC on one count of having without good reason or lawful authority a bladed article, namely a knife, in a public place, namely Newport Road, Brouhgton. 
2.	The offence of which the appellant was acquitted allegedly arose out of events on 7 October 2012 when it was alleged that at 1900 that day the appellant had attended the home of his ex‑partner, Miss Jinny, had been abusive and hostile to her and that she had removed her two children to the premises of her neighbour, Aisha Khan, before returning to her address.  It was at that point that it was alleged that the appellant was in possession of a knife and that he had then followed Miss Jinny back to the neighbour's address where he had kicked the neighbour's door.
3.	The appellant's defence was that he had a good reason for having the knife, namely for the purposes of his work.  He denied brandishing the knife in any way.  It had simply fallen on to the floor out of his pocket.  He had then put it back into his pocket.  He called evidence from the agency for whom he worked in support of his defence.
4.	The neighbour, Aisha Khan, gave evidence that she had had seen the knife in the appellant's hand, but during the trial neither she nor the ex‑partner made any suggestion that the knife had been pointed towards them or they had been threatened with it.  They both had seen the knife in the appellant's hand for a couple of seconds only.
5.	The restraining order made against the appellant was not to protect the ex‑partner but to protect the neighbour, Aisha Khan.  It, in terms, restrained the appellant for a period of two years from directly or indirectly contacting or attempting to contact Aisha Khan in person or by telephone and from attending her address in Newport Road identified in the order.  A breach of such a restraining order is a criminal offence under the 1997 Act potentially punishable with a term of imprisonment.
6.	Section 5A provides, so far as material:
"(1) A court before whom a person (the defendant) is acquitted of an offence may, if it considers 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."
7.	There is no all encompassing definition of harassment in the Act, but subsection (2) of section 7 provides that:
"Reference to harassing a person includes the alarming the person or causing the person distress."
8.	We have been referred to a number of decisions of this court on the application of section 5A.
9.	From the judgment of this court in Smith [2012] EWCA Crim 2566 the following material principles emerge.
10.	1.  Since the purpose of an order under section 5A is to protect a person from harassment by an acquitted defendant, the court must first be satisfied that the defendant is likely to pursue a course of conduct which amounts to harassment within the meaning of section 1 of the Act.  See Smith at paragraph 29.
11.	2.  It does not follow that because references to harassing a person include alarming a person or causing a person distress, that therefore any course of conduct which causes alarm or distress amounts to harassment.  Essentially harassment:
"... involves persistent conduct of a seriously oppressive nature, either physically or mentally, targeted at an individual and resulting in fear or distress."  
See Smith at paragraph 24.
12.	3.  The power to make an order under section 5A is circumscribed by the important words:
"necessary ... to protect a person from harassment by a defendant."
13.	The word "necessary" is not to be diluted.  To make an order prohibiting a person who has not committed any criminal offence from doing an act which is otherwise lawful on pain of imprisonment is an interference with the person's freedom of action which can be justified only when it is truly "necessary" for the protection of some other person.  See Smith at paragraph 30.
14.	In Lawrence [2012] EWCA Crim 1164 this court at paragraph 10 reiterated, following on observations made in Major [2010] EWCA Crim 3016, the requirement that the judge is required to identify the factual basis for imposing an order and that it must not be overlooked that, absent a conviction, it may not be possible to determine such factual basis.  It is always incumbent on the court imposing the order to state its reasons for doing so.  
15.	It would appear that the restraining order in this case was made at the request of the prosecution on the basis that the neighbour wanted one and the judge, in terms, stated that he thought this was a reasonable request.
16.	The reasons given by the judge for imposing the order were in these terms:
"I think in relation to that, I will grant the order.  I do think it is appropriate for the purpose of protecting Aisha Khan from conduct which would amount to harassment or would cause a fear of violence to make this order.  I base that, as much as anything else, on Mr Jose's own evidence about what happened.  There was, clearly, bad feeling between himself and Aisha Khan.  I do think Aisha Khan did seem to be a lady quite capable of speaking up for herself and I thought it might well be the case that she has expressed herself quite forcibly on this occasion.  But I think she is entitled to expect that Mr Jose will not come round causing trouble.  I think he probably won't because this arose out of trouble between himself and Miss Jinny.  But I think it is a reasonable request by the prosecution and Aisha Khan in all the circumstances.  And, particularly, having regard to his own admission that he kicked her door.  He was, clearly, angry and I think we want to avoid that kind of thing."
17.	It is to be noted that at no stage in this reasoning does the judge make any finding that he regarded the making of the order to be necessary to protect Miss Khan from harassment from the appellant, nor does the judge make any express finding that it is likely that the appellant will pursue a course of conduct amounting to harassment of the neighbour.  Indeed, in terms, the judge states that he thinks the appellant "probably won't" come round to cause trouble.
18.	As far as the factual basis for the making of the order is concerned, although the judge refers in general terms to the appellant's own evidence about what had happened, the only explicit references are to the appellant's admission that he kicked the neighbour's door when he was clearly angry and to an unspecified history of bad feeling between the appellant and Miss Khan.
19.	Miss Reiff‑Musgrove in her written response on behalf of the prosecution in seeking to persuade us to uphold this order, has sought to expand on the factual basis referred to the judge by informing us that the houses of the ex‑partner and the neighbour were extremely close together, that in the course of his evidence the appellant had accepted that it was when Aisha Khan had closed her door on him, telling him to go away and not come into her house, that he kicked her door because he was angry with her.  Further, that the appellant had explained that when he had approached her door before she had closed it he had been mimicking her filming him with her phone, saying words, "Camera, camera," and this had been a reference to her filming him outside his estranged partner's address previously.  Further, that the neighbour herself had agreed that she had filmed the appellant previously as he was outside shouting at his estranged partner.
20.	It is then submitted that in all these circumstances the situation was likely to occur again in which the appellant was likely in anger to cause the neighbour "fear of violence or at very least distress" because the estranged partner was likely to run to her neighbour's again to seek refuge from the appellant whereby:
"Miss Khan's address is likely to be targeted again by Mr Jose."
21.	The appellant has a previous conviction for inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861, which Miss Reiff‑Musgrove informs us was related to the appellant breaking his estranged partner's arm.
22.	In further oral submissions to us today Miss Reiff‑Musgrove has sought to develop her contention that there was here, in truth, a factual basis for a finding that the harassment of the neighbour by the appellant was likely to occur in the future and the order made was necessary.  
23.	None of this, however, persuades us that the making of the order in this case was justified on the findings in fact made by the judge in this case.  We have to assess this order on the basis of those findings and not on the basis of findings which might have been made.
24.	At no time did the judge speak in terms of the likelihood of the appellant repeating his conduct.  Nor did he speak in terms of the order being necessary for the protection of the neighbour as opposed to being "appropriate".  The judge did not in terms apply his mind to what is required to establish harassment within the meaning of the Act as explained by this court in Smith.  Moreover, the references both by the judge and Miss Reiff‑Musgrove to protecting the neighbour from "fear of violence" is a misplaced reference to words which appear in section 5 of the 1997 Act applicable to the making of an order after a conviction, which words are not replicated in section 5A in relation to an order made after acquittal.  On this see, again, the strictures of this court in Major at paragraph 21 and in Lawrence at paragraph 13.
25.	It may well be that had different findings been made by the judge an order in this case might have been justified and we would accept that as a matter of principle it is not required that there be evidence of previous incidents of harassment to justify a finding of what may be likely to happen in the future.  But based on what the judge did say, we agree with Miss Goffe on behalf of the appellant, that the requirements of the making of a restraining order under section 5A were not made out in this case.  The test of necessity cannot be said to have been satisfied.  Nor were the other requirements for the making of an order as enunciated by this court in Smith made out.
26.	For all these reasons, we allow this appeal by quashing the restraining order.