S5A(4)(A) Protection from Harassment Act 1997 becomes largely otiose if a Restraining Order did not automatically fall on conviction being quashed. There is arguably no need need to give the Crown Court a power to impose a Restraining Order on acquittal after quashing a conviction unless the original Restraining Order falls automatically. I suppose there may be exceptionally rarely a need for the Crown Court to impose a Restraining Order on acquittal where one was not felt necessary on conviction but that must be the case once in a blue moon.

 

 

 

Hi Richard,

 

No it wasn’t raised with the judge.  The difference between this and the other ancillary orders on conviction is the fact that this can be issued even on acquittal.  The CC decided the case on the basis that it was one person’s word against the other with absolutely no corroborating evidence either way.  So they couldn’t be sure.  Given that it was a DV case and it was apparent that there was no love lost between the parties, I suspect the judge would have been loath to set it aside without argument.  I suppose I can write to the judge for clarification.  If he doesn’t reply then I will see what steps lie beyond that.  

 

 

I’m not so sure about this.  Surely the Restraining Order was made as an ancillary order to the Assault charge and would stand or fall on the general appeal?

 

For instance a football banning order or a disqualification order would stand or fall on the decision of the Appeal in terms of guilt or innocence.

 

Whilst the Magistrates Court can make a Non-Conviction Restraining Order on acquittal the order you have was made ancillary to a conviction – so it should be treated as an ancillary order.

 

Was this not raised in the Crown Court at the time of the acquittal – if not try and get it restored before the judge.

 

Richard Atkins

 

 

Thanks for that view Kaushik. I have gone to the view that it falls away because the test for an order is different as between the two sections. Does anyone have a Trainee or NQ still doing some academic studies who might be interested in writing a paper on this topic? 😊/

 

Regards,

 

Joe Mensah-Dankwah

Foresters Solicitors Limited

155 Hoe Street

Walthamstow

London  E17 3AL

  

T:  020 8521 5999

F:  020 8521 5996

DX: 32016 Walthamstow

  

Foresters Solicitors Limited is registered in England and Wales, with registered office at 155 Hoe Street London E17 3AL. Company Number 6650930. Directors: Joe Mensah-Dankwah, Alan Hardy Boulton, John Yiannourides.  This firm is authorised and regulated by the Solicitors Regulation Authority.

 

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From: kaushik ramdhary <kramdhary@yahoo.com>
Sent: 28 June 2019 13:55
To: Joe Mensah-Dankwah <Joemensah@foresterssolicitors.co.uk>; members@mail.lccsa.org.uk
Subject: Re: Funding an Application to set aside a Restraining Order

 

This is my view. A restraining order can be imposed on conviction or acquittal.  In this case, it was an acquittal but the restraining order stands as the complainant would have asked for one in the mags. The only way you can get rid of it is if the complainant makes an application in the mags to have it withdrawn and the matter would be listed.  

 

On Fri, 28 Jun 2019 at 13:11, Joe Mensah-Dankwah

<Joemensah@foresterssolicitors.co.uk> wrote:

Does anyone know the answer to this?

 

We have successfully appealed, in the crown court, a conviction for assault.  Ordinarily the sentence falls away, so the crown court said nothing about the sentence.  However, in this case, a restraining order was made by the mags.  Now, after the euphoria of victory had waned, the client has come back asking if we could have the restraining order “removed”.  My view is that a fresh application to set aside the RO needs to be made to the mags ct.  I have asked the LAA whether we can use the same Rep Order (assuming no change in circs) and claim a separate fee.  They have not been able to give an answer, but instead answered one about appeals which I did not ask.  My view is that given that the granting of a RO follows the civil standard of proof, we cannot apply for and use a criminal Rep Order for this.  I have seen one view online which suggests that one can in some cases.

 

What do you say, folks?

 

Regards,

 

Joe Mensah-Dankwah

Foresters Solicitors Limited

155 Hoe Street

Walthamstow

London  E17 3AL

  

T:  020 8521 5999

F:  020 8521 5996

DX: 32016 Walthamstow

  

Foresters Solicitors Limited is registered in England and Wales, with registered office at 155 Hoe Street London E17 3AL. Company Number 6650930. Directors: Joe Mensah-Dankwah, Alan Hardy Boulton, John Yiannourides.  This firm is authorised and regulated by the Solicitors Regulation Authority.

 

This email is confidential and may be privileged.  It is for the use of the named recipients only.  If you have received it in error, please notify us immediately and delete it from your computer system.  Please do not copy or disclose its contents to any person or body.

 

 

Foresters Solicitors Limited is registered in England and Wales, with registered office at 155 Hoe Street London E17 3AL. Company Number 6650930. Directors: Joe Mensah-Dankwah, Alan Hardy Boulton, John Yiannourides. This firm is authorised and regulated by the Solicitors Regulation Authority.

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Foresters Solicitors Limited is registered in England and Wales, with registered office at 155 Hoe Street London E17 3AL. Company Number 6650930. Directors: Joe Mensah-Dankwah, Alan Hardy Boulton, John Yiannourides. This firm is authorised and regulated by the Solicitors Regulation Authority.

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