R v AJR [2013] EWCA Crim 591, [2013] MHLO 37

The appellant had been found not guilty by reason of insanity and sentenced to a supervision order for 2 years under s5 CPIA 1964 and made the subject of a restraining order under s5A Protection from Harassment Act 1997 for 5 years. He appealed against the restraining order. (1) An finding of 'not guilty by reason of insanity' is an acquittal for the purposes of the 1997 Act so a restraining order may be lawfully imposed. (2) On the facts, there was no evidence that the defendant was likely to 'pursue a course of conduct which amounts to harassment', so the restraining order was quashed. (3) In any event, the restraining order had been drafted very widely and for a long duration, and concerns as to the children's welfare would more properly be addressed by agreement between mother and local authority, or by the family courts under the Children Act 1989.

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.  

CRIME — Harassment — Restraining order — Court imposing restraining order after defendant found not guilty by reason of insanity of offences — Whether defendant “acquitted” of offences — Protection from Harassment Act 1997, s 5A (as inserted by Domestic Violence, Crime and Victims Act 2004, s 12(5))

Regina v AJR

[2013] EWCA Crim 591
; [2013] WLR (D) 160

CA: McCombe LJ, Saunders J, Judge Collier QC: 1 May 2013

A special verdict of not guilty by reason of insanity was an acquittal for the purposes of imposing a restraining order upon a defendant, pursuant to section 5A of the Protection from Harassment Act 1997.

The Court of Appeal so held when allowing an appeal by the defendant, AJR, against a restraining order made under section 5A of the Protection from Harassment Act 1997 following a finding before Judge Greenwood and a jury in the Crown Court at Harrow on 7 September 2012 that he was not guilty by reason of insanity of one charge of attempted murder, one of wounding with intent and one of unlawful wounding, the victim in each case being the defendant’s then seven-month-old daughter, MJ.

Section 5A(1) of the Protection from Harassment Act 1997 provides: “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.”

MCCOMBE LJ said, in the reserved judgment of the court, that the first point taken on the appeal against the imposition of a restraining order was that where section 5A of the Protection from Harassment Act 1997 spoke of a person being “acquitted” that did not include a person who had been found “not guilty by reason of insanity”. It was submitted that the special verdict returned in such a case as this was neither a “conviction” nor an “acquittal” but something between the two, ie as statute provided, a “special verdict”. It was to be noted that this case was one where the issue of insanity was before the jury and they returned the verdict of not guilty by reason of insanity, ie a special verdict under section 2 of the Trial of Lunatics Act 1883; it was not a case where there had been a finding of unfitness to be tried and a jury had subsequently determined under section 4A of the Criminal Procedure (Insanity) Act 1964 that the accused “did the act … charged against him”. Further, it seemed tolerably clear that for an order to be made under section 5A of the 1997 Act the offence in respect of which the accused was acquitted did not need to have been an offence under the 1997 Act itself. However, there was a different objection to the order made in this case. A court had to be satisfied that the defendant was likely to pursue a “course of conduct” amounting to harassment within section 1 of the 1997 Act. In the present case, terrible though the events in this case were, there was no relevant “course of conduct”. The incident was a single one and did not satisfy the requirements of the Act. It followed that the restraining order in this case had to be quashed. In their Lordships’ judgment, it seemed clear that, as a matter of ordinary language, a person found “not guilty by reason of insanity” had indeed been acquitted of the offence. That was what a finding of “not guilty” was, whatever the basis upon which that verdict was returned.

Appearances: Anand Beharrylal (assigned by the Registrar of Criminal Appeals) for the defendant; Gino Connor (instructed by Crown Prosecution Service, Appeals Unit) for the Crown.

Reported by: Clare Barsby, Barrister.

© 2012. The Incorporated Council of Law Reporting for England and Wales.

Citations

[2013] WLR (D) 160

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