Neutral Citation No. [2017] EWCA Crim 2209
Case No:No: 201703707/A2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2A 2LL 

Date:Thursday, 14 December 2017
 
B e f o r e:

LORD JUSTICE IRWIN 

MRS JUSTICE CHEEMA‑GRUBB DBE 
 
HIS HONOUR JUDGE DEAN QC
(Sitting as a Judge of the CACD) 
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R E G I N A 
v 
DAVID TAYLOR
 
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Computer Aided Transcript of the Stenograph Notes of
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Mr A Waldman appeared on behalf of the Applicant
Miss K Appleton appeared on behalf of the Crown
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J U D G M E N T (Approved)
1.	LORD JUSTICE IRWIN:  On 15th June 2017 in the Liverpool Crown Court, the applicant underwent a trial in relation to a single count of burglary before His Honour Judge Trevor Jones and a jury and he was acquitted by the unanimous verdict of the jury.  
2.	On 6th July 2017, before the same judge, he was made the subject of a restraining order for a period of three years with conditions firstly that he was not to contact the complainant, MW, directly or indirectly by any means whatever, secondly, that he was not to enter the Rose of Mossley Public House, and thirdly, that he was to pass by the road in which that public house is situated only in a vehicle.  
3.	The applicant sought leave to appeal against the sentence and the application has been referred to the full court by the Registrar of Criminal Appeals who granted a representation order for counsel.  We grant leave to appeal.
4.	The facts can be stated as follows.  The complainant, MW was the landlady of the Rose of Mossley Public House and she lived in a flat above the pub, which was accessed via a storage area clearly marked for entry by staff only.  
5.	On the evening of 20th December 2016, following a private function in the pub, the premises were locked up and secured in the usual way and the burglar alarm was set.  During the early hours of the next morning, the complainant was woken several times by the alarm going off.  Each time she went downstairs and checked the premises, but eventually switched off the alarm system, since she considered that there was likely to be a fault in the system because it had gone off so often.  She left the lights on.
6.	At 8 o'clock in the morning the regular cleaner arrived, and the complainant left the door to her flat open whilst she assisted the cleaner clearing up the pub.  
7.	Just before 9 o'clock in the morning, a gas engineer attended and found the applicant in the storage area of the pub.  He was initially observed by the gas engineer to be a bald man but he then put on a wig and glasses before leaving the premises.  The complainant chased him, and as he ran away the applicant pulled off his wig and replaced it with a trilby hat.  
8.	When she returned to the pub the complainant found that the previous night's takings, which she estimated to be between £3,200 and £3,400, were missing from the safe which was located inside her flat.  
9.	At 9.30 or so in the morning the applicant was stopped by police.  In the process of being detained he threw a set of keys over a wall, which were later identified as having been taken from the complainant's flat.  He was found to be in possession of £3,305.25 in cash.  He also had on his person a written note which described being locked up in the pub toilets, being unable to get out of the pub during the night and included an apology.  
10.	There was CCTV footage from inside the pub.  The appellant was interviewed and he gave an account generally consistent with his account at trial.  He had been drinking during the day, he said, and had accepted a cigarette from someone which he suspected had contained cannabis, that is to say while he was in the pub during the evening.  When he saw the pub lights were on he went inside to use the toilet, but must have passed out.  He awoke at 3 o'clock in the morning and during several attempts to leave, he said, he set the alarms off.  When the landlady came downstairs to investigate, he hid so as not to frighten her.  Next morning he found the keys and then took his opportunity to leave.  He denied stealing any cash and he said that the cash which had been found in his possession was withdrawn recently from his bank.  He was a man of means.  
11.	He did not give evidence in the trial himself, but he did call witnesses to confirm that he had been dressed oddly earlier in the evening.  He also presented evidence of his means in the form of bank statements in the course of the trial.
12.	Following the acquittal, the landlady made a second victim personal statement in which she expressed real concern about the appellant.  Her concern was in our view very understandable.  On any view he had hidden in her premises throughout the night, moving about and behaving rather bizarrely.  Setting aside any question of financial loss, she was disturbed by the thought of him returning to the premises or indeed approaching them, or her.  Her concern was raised because it transpired that the appellant's brother lives close by.  Hence the prosecution responded by applying for the restraining order.  
13.	The application was very short.  The judge of course knew the circumstances since he had conducted the trial.  However, he was shown the very recently obtained victim personal statement (the second statement) which had only come to light on the day of the hearing.  
14.	The prosecution did not take the judge to the relevant section within the statute nor indeed to any authority.  To be fair to Miss Appleton the prosecution had little time to prepare.  As we shall see, however, this was an error and it did not help the court.  
15.	The judge was clearly sympathetic to the landlady, as anyone would be.  In the course of the hearing counsel for the appellant, Mr Waldman, who appeared before us and who expressed his submissions in this case in an admirably clear way, objected to the proposed order in the following terms:  

i.	"Section 5A of the Protection from Harassment Act, which relates to restraining orders on acquittal and the test within the statute itself is that a court before which a person is acquitted of an offence, if it considers it necessary to do so, to protect a person from harassment by the defendant, may make an order prohibiting the defendant from doing anything which proscribed the order."

16.	Mr Waldman was paraphrasing, but accurately paraphrasing, the contents of the Statute.  He went on: 

i.	"Your Honour, there is no suggestion the defendant was known to the complainant at all before this incident.  Of course your Honour decides the evidence having heard the evidence, but taken at its highest it was a one‑off isolated incident.  There is no suggestion that this complainant was targeted in any way and in fact the statement that has been drafted and sent this morning can set out no other incidents that relate to this defendant and so, in my submission, it is not necessary [by which Mr Waldman meant the standard 'necessary' specified in the section] because there is no evidence that there is harassment or would be harassment." 
17.	Mr Waldman maintains that challenge before us.  
18.	We turn to the law.  The power to make an order following an acquittal is set down by section 5A of the Protection from Harassment Act 1997, as amended by the Domestic Violence, Crime and Victims Act 2004, section 12(5).  The relevant text of the section reads as follows:  
i.	"5A.
(2)	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."  

19.	A number of authorities have considered this section and for our purposes the most notable is Smith [2013] 1 WLR 1399, [2012] EWCA Crim. 2566.  In that case this court looked at the meaning of section 5A(1), and the relevant passage of the judgment reads as follows:  

i.	"29. There are other fundamental problems with the order. Since the purpose of such an order 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 s1. Pursuit of a course of conduct requires intention ...

ii.	30.  Further, the power to make an order under s5A is circumscribed by the important words 'necessary ... to protect a person from harassment by the defendant'. 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 that person's freedom of action which could be justified only when it is truly necessary for the protection of some other person." 

20.	It is sufficient to refer to one other case, again a decision in this court and in this case it is the case of R v Jinny Jose [2013] EWCA Crim. 939.  In that case this court stated as follows:  

i.	"9. From the judgment of this court in Smith [2012] EWCA Crim 2566 the following material principles emerge."

21.	For clarity I read the principles only, rather than the paragraph numbers which divide them: 

i.	"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.

ii.	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:
iii.	'... involves persistent conduct of a seriously oppressive nature, either physically or mentally, targeted at an individual and resulting in fear or distress.'.
iv.	See Smith at paragraph 24.

v.	3. The power to make an order under section 5A is circumscribed by the important words:
vi.	'necessary ... to protect a person from harassment by a defendant.'

vii.	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.

viii.	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."

22.	Mr Waldman argued and argues that it has not been established here there was any persistent conduct by the appellant towards the landlady, that there is no evidence that he knew of her before the night in question or singled her out in any way.  Nor is there any other evidence of an intention to repeat this conduct.  There is no evidence of past harassment, or a likelihood of future harassment, and thus no evidence upon which this court could properly conclude that it was necessary to make such an order.  In addition, as the passage from Jinny Jose makes clear, there was an obligation on the judge to set out the evidence on which he relied.  The failure to do so, says Mr Waldman, is an important procedural defect.
23.	In response, Miss Appleton does suggest that this was bizarre behaviour, but concedes it took place over one night, that it was an isolated incident, that there was no real basis for repetition, that there was no evidence that the pub or the pub landlady was targeted in any coherent way, and it was not suggested in the course of the trial that it was a question of targeted behaviour.
24.	It is unfortunate that Miss Appleton was not able to take the judge to the relevant authority.  Looking at the transcript, she made the application in outline, the objections were lodged by Mr Waldman and the judge proceeded to indicate his intention to make the order without hearing any more from the Crown.  It would have been better had Miss Appleton applied the judge's mind to the relevant authority, before Mr Waldman got up to object.  But of course the judge could have himself considered the section and the authority in advance of hearing the application.
25.	We consider that the criticisms by Mr Waldman are well‑founded.  Parliament has been careful to limit the circumstances in which such an order can be made, particularly since breach of the order is criminal.  We restate the principles set down by this court in the earlier authority we have quoted.  It is easy to understand the caution of Parliament and the limits of the power given to the courts by Parliament in the context of an individual who has just been acquitted of any offence.  We have granted leave to appeal.  The appeal succeeds and the order is quashed. 

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