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R v Smith (Mark John) [2012] EWCA Crim 2566, [2012] MHLO 170

"This is a most unusual case. It is an appeal against a restraining order made by His Honour Judge McGregor-Johnson at Isleworth Crown Court on 8 May 2012 under s5A of the Protection from Harassment Act 1997. The order prohibited Mr Smith from travelling on any domestic or international commercial airline for a period of 3 years. The order was made at the end of a trial at which Mr Smith was acquitted, by reason of insanity, of offences of criminal damage and interfering with the performance of the crew of an aircraft in flight. The appeal raises questions about the scope of s5A of the 1997 Act." [Summary required; detailed external summary available.]

ICLR

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

CRIME — Harassment — Restraining order — Defendant violent and abusive on aircraft during flight — Cabin staff restraining defendant — Psychiatrists diagnosing brief reactive psychosis characterised by delusions and hallucinations — Jury finding defendant not guilty by reason of insanity — Defendant making swift and full recovery — Judge ordering absolute discharge and imposing restraining order preventing defendant from travelling on commercial airlines — Protection from Harassment Act 1997, ss 5A, 5(2), 1

Regina v Smith (Mark)

[2012] EWCA Crim 2566!; [2012] WLR (D) 362

CA: Toulson LJ, Langstaff J, Judge Morris QC: 29 November 2012

The court had to identify the potential victim in a restraining order under section 5A of the Protection from Harassment Act 1997 to reflect the underlying purpose of the provision to protect that person or class of persons from an acquitted defendant and could only impose an order if satisfied that the defendant was likely to pursue a course of conduct which amounted to harassment within the meaning of section 1 of the Act.

The Court of Appeal, Criminal Division, so held when allowing an appeal by the defendant, Mark John Smith, against a restraining order imposed, pursuant to section 5A of the Protection from Harassment Act 1997, on 8 May 2012 by Judge McGregor-Johnson at Isleworth Crown Court following his acquittal, by reason of insanity, of offences of criminal damage and interfering with the performance of the crew of an aircraft in flight.

The defendant had been violent and abusive while travelling as a passenger on a commercial flight and had to be restrained by cabin staff. Psychiatrists diagnosed a brief reactive psychosis characterised by delusions and hallucinations from which the defendant made a swift and full recovery. The judge ordered an absolute discharge and imposed a restraining order preventing the defendant from travelling on commercial airlines.

TOULSON LJ said, in the reserved judgment of the court, that in construing section 1 of the Protection from Harassment Act 1997 Act it was right to have regard to the mischief at which it was aimed and to have regard to what the ordinary person would understand by harassment. It did not follow that because references to harassing a person included alarming them or causing them distress in section 7(2) of the 1997 Act, any course of conduct which caused alarm or distress therefore amounted to harassment. Harassment was persistent conduct of a seriously oppressive nature which could be either physical or mental and was targeted at an individual and resulted in fear or distress. The first problem with the order was that it had not identified the victim it was intended to protect. If the defendant had been convicted, section 5(2) of the 1997 Act (as amended by section 125(1)(6) of the Serious Organised Crime and Police Act 2005) stated that a restraining order would have to name those whom the order was intended to protect. Any person named in the order would then have been entitled to be heard on an application to vary or discharge the order. Section 5A of the 1997 Act 9 (as inserted by section 12(5) of the Domestic Violence, Crime and Victims Act 2004) incorporated most of the provisions of section 5 but not section 5(2) for the obvious reason that there had not been an offence and therefore the language of section 5(2) could not apply. However it could not be rationally supposed that an order under section 5A therefore need not identify the person or possibly the group of persons whom the order was intended to protect. The omission of the identification of any potential victim in the order was not a mere formality. Identifying the potential victim in a restraining order under section 5A of the Act reflected the underlying purpose of the provision, which was to protect that person or class of persons from an acquitted defendant. The order was for the protection of the world at large or whoever might have been on the same aircraft as the defendant. Before imposing a restraining order, the court had to be satisfied that the defendant was likely to pursue a course of conduct which amounted to harassment within the meaning of section 1 of the 1997 Act. Pursuit of a course of conduct required intention and there was no basis for finding that there was a likelihood of intentional conduct by the defendant involving mental or physical oppression of the victim by persistent interference or intimidation. The power to make an order under section 5A was circumscribed by the important words “necessary … to protect a person from harassment by the defendant” and the word necessary was not to be diluted. To make an order prohibiting a person who had not committed any criminal offence from doing an act which was otherwise unlawful, on pain of imprisonment, was an interference with that person’s freedom of action which could only be justified when it was truly necessary for the protection of another person. The judge had used the section as if it were an adjunct to the Mental Health Act 2007 as a means of protecting the public against the possible side effects of a possible recurrence of a mental illness, which was not the function of the section. The order was quashed.

Appearances: Giuseppina Silvio, solicitor, (assigned by the Registrar of Criminal Appeals) for the defendant; Francis Burak (instructed by the Crown Prosecution Service, Appeals Unit) for the Crown.

Reported by: Georgina Orde, Barrister.

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

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