On 16 July 2020, the Court of Appeal allowed an appeal in the case of R v DI against an unlawful Restraining Order, resulting in that Order being quashed and substituted with a lawful (and much less restrictive) Order. In this article, Tony Williams discusses the legal and procedural principles raised by the appeal and the background to the proceedings.
In R v DI, the Defendant was convicted after pleading guilty to a number of breaches of an Anti-Social Behaviour Order (‘ASBO’) that had been in place since 2005. It was agreed that this Order was out of date and should be replaced with an up-to-date Order. The ASBO was discharged in separate proceedings and the Crown attempted to make an application for a Criminal Behaviour Order (‘CBO’) to replace it.
The CBO sought by the Crown included a number of similar restrictions to the original ASBO with updated wording. These included terms preventing the Defendant from having contact with a list of named individuals in his community, entering any private properties in his community without prior consent, lighting fires in his own garden, drinking alcohol in any public place, having unsupervised contact with women and children, and entering a particular field near his home. All of these prohibitions related to concerns held by the local community about the Defendant’s historic behaviour.
During the Crown Court proceedings, Mr Williams objected to the Crown’s application for a CBO, citing failures by the prosecution to follow proper procedure under Part 31 of the Criminal Procedure Rules and Part 2 of the Anti-Social Behaviour, Crime and Policing Act 2014. He relied upon R v Lima  EWCA Crim 284 which upheld the need to follow proper procedure where an order significantly restricting the liberty of a person is envisaged and that a failure to do so was “a matter of disquiet and not of mere technicality”. After a number of adjournments, the Court decided that it would make a Restraining Order of its own initiative instead of a CBO to replace the discharged ASBO.
Under s.5 Protection from Harassment Act 1997, where a Defendant is convicted of an offence the Court may make a Restraining Order either on the application of the prosecution or of its own initiative. Any Restraining Order should be made to protect “the victim or victims of the offence, or any other person mentioned in the order” (s5(2)). In R v Smith  EWCA Crim 2566 it was held that such an Order should only be made to protect a particular victim or group of vulnerable persons as opposed to “the world at large”.
In Grounds of Appeal drafted on behalf of the Defendant, Mr Williams argued that the terms of the Restraining Order offended the principle in Smith, having been made to protect sections of the community at large as opposed to particular victims or groups of vulnerable persons. The written Grounds of Appeal were eventually conceded by the Crown and a new Restraining Order was drafted by agreement to omit the offending provisions.
In its judgment, the Court of Appeal agreed that the Restraining Order made by the Crown Court in this case contravened the principle in Smith and the appeal was allowed. The Order was quashed and substituted with the amended Order containing only two provisions – not to contact a list of named individuals and not to enter a particular field near his home.
The Court of Appeal’s decision in this case confirms that a Restraining Order should not be framed in terms that are too wide or used as a substitute for any other type of behaviour order. Restraining Orders on conviction should be carefully drafted to ensure they are necessary and proportionate to protect the particular victim or group of vulnerable persons from the Defendant’s offending behaviour. A Restraining Order which is too wide might even give rise to human rights objections.
The history of this case also demonstrates the importance of following procedure if a party seeks to apply for a behaviour order to restrict a person’s liberty.
Rule 31 of the Criminal Procedure Rules clearly sets out the requirements that must be followed by any party seeking a behaviour order, whether a Restraining Order, Criminal Behaviour Order, Sexual Harm Prevention Order or even a Football Banning Order. Even the more recent judgment of R v Smith  EWCA Crim 777 (delivered on 22 June 2020) shows us that the Criminal Procedure Rules are “there for a reason” and should not simply be ignored or waived – despite the pressures facing criminal practitioners in the current climate.
Even if an application for a behaviour order appears well founded, a failure to follow the correct procedure or draft the order in accordance with legal principles may be fatal to any such application. A Defendant seeking to contest a proposed behaviour order will need robust advice and assistance should they wish to successfully oppose an order being made.
Tony Williams is experienced in dealing with applications for behaviour orders in both the criminal and civil courts. He is well-placed to advise as to the technical, procedural and evidential requirements in applications for Restraining Orders, Criminal Behaviour Orders, Sexual Harm Prevention Orders, Football Banning Orders and Anti-Social Behaviour Injunctions.