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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Kirby, R v [2018] EWCA Crim 598 (13 March 2018) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2018/598.html Cite as: [2018] EWCA Crim 598

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 13 March 2018

This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.

1. MRS JUSTICE WHIPPLE: This is a renewed application for an extension of time, leave to appeal and a representation order.
2. The appeal relates to two convictions resulting from two different indictments. On the first indictment (T20140852) the appellant (as I shall refer to him) was sentenced to 12 weeks' imprisonment and ordered to pay a victim surcharge order. He had pleaded guilty to a single count of breach of a non-molestation order, contrary to section 42A of the Family Law Act 1956. On the second indictment (T20150640) the appellant was sentenced to 5 months' imprisonment and ordered to meet various financial penalties. He had pleaded guilty to a single count of breach of a non-molestation order, contrary to section 42A of the Family Law Act 1996.
3. The background to the appeal is that on 28th March 2013 or possibly 28th August 2013 - different dates having appeared in the papers before us - the High Court made a non-molestation order under its inherent jurisdiction. The order was made on the application of the local authority, the London Borough of Tower Hamlets, against the appellant. That order provided that any breach would be dealt with by way of contempt proceedings. I shall refer to that as the "first order". This court has not seen a copy of the first order. It is aware of it only from the appellant's notice which describes it, and from a witness statement dated 7^th May 2015 from Mr Abdirizak Ahmed, an employee of the local authority, which also describes it.
4. In 2014 the local authority applied for a second non-molestation order, this one under the framework of the Family Law Act 1996. It seems that it may have done so in order to enable enforcement to take place in the Crown Court, that being a consequence of any order made under the 1996 Act. The order, which I will refer to as "the second order", was made by Her Honour Judge Caroline Wright on 25th March 2014 pursuant to section 42 of the 1996 Act. The second order prohibited the appellant from entering his mother's premises or having contact with her. This court has seen a copy of the second order. It stated in terms that any breach would be a criminal offence punishable in the Crown Court.
5. It is now argued by Mr Harrison, who appears on behalf of the appellant, that the second order may have been defective. His argument is that section 42(2) of the 1996 Act permits the court to make an order on the application of a person "associated with the respondent" and that the term "associated with" is defined at section 62 and would appear to exclude public bodies; that if the local authority was not a person associated with the appellant then the local authority was not permitted by statute to apply for such an order and thus the order is defective. However, he acknowledged that the apparent defect was not spotted by anyone until March 2016 when he was instructed to defend the appellant in the Crown Court. Between the making of the second order and March 2016, the appellant had been prosecuted on two occasions for breaching the second order. These are the two indictments referred to above, noting that the appellant pleaded guilty to both breaches and was sentenced for them.
6. It was only when the appellant was being prosecuted for a third alleged breach that the apparent error in relation to the second order came to light. The prosecution offered no evidence on that breach, but we were told today that at the abortive hearing on that breach, the prosecution re-served a copy of the first order on the appellant.
7. The appellant now appeals against the 2014 and 2015 convictions. His grounds are quite simply that the convictions must be quashed because they flow from an order which was defective and in consequence invalid.
8. We conclude that it is appropriate in this case to extend time and we grant the application for an extension of time as sought. We grant leave to appeal. We grant a representation order for junior counsel only for today and any subsequent hearing in this matter. We grant these various applications to enable the full Court to consider this appeal; we consider that the appellant has an arguable case.
9. We also make the following directions:

(1) Within 28 days of today's date the appellant is to notify this court whether any application has been made to set aside the second order (that being the order dated 25th March 2014), following which notification the appeal papers are to be put before Thirlwall LJ for further directions.

(2) Within 28 days of today's date, the appellant is to inform the local authority of the current appeal pending before this court.

(3) A copy of today's order is to be served on the local authority and the prosecution.

(4) Within 28 days of today's date the appellant is to provide this court with a copy of the first order of 2013.

(5) A transcript of this short judgment is to be made available to the parties and to any court subsequently dealing with the appeal.

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