Caselaw Digest
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R v Gino Mari

[2023] EWCA Crim 1631
A man was acquitted of strangulation but a judge also banned him from seeing his kids. The appeal court said that wasn't fair because there wasn't enough evidence to justify it and the right procedures weren't followed. The ban on seeing his kids was overturned, but the ban on seeing his ex-partner stayed.

Key Facts

  • Appeal against a restraining order imposed after acquittal on a strangulation charge.
  • Appellant, Gino Mari, acquitted due to complainant's non-attendance.
  • Restraining order prohibited contact with complainant and children.
  • Judge imposed the children's portion of the order suo motu, citing domestic violence as child abuse.
  • Procedural irregularities in obtaining the order, particularly regarding the Criminal Procedure Rules.
  • Appeal argued the order was unnecessary, disproportionate, and contradictory.
  • Crown conceded the order regarding children was flawed and agreed to support its amendment.

Legal Principles

Right to appeal a restraining order imposed following an acquittal.

Section 5A(5) of the Protection from Harassment Act 1997

Restraining order on acquittal is a criminal behaviour order, subject to Criminal Procedure Rules 31.1(a) and 31.2.

Criminal Procedure Rules 31.1(a), 31.2, 31.3, 31.6, 31.7, 31.8

Restraining orders must be necessary to protect a person from harassment; the word 'necessary' is crucial.

Section 5A of the Protection from Harassment Act 1997

Natural justice and the Criminal Procedure Rules require the defendant to have the opportunity to consider evidence and adduce evidence against the order.

Case law and Criminal Procedure Rules

Relevant case law on restraining orders post-acquittal (R v Major, R v Smith, R v AJR, R v Taylor, R v Baldwin).

R v Major [2010] EWCA Crim 3016; R v Smith [2012] EWCA Crim 2566; R v AJR [2013] EWCA Crim 591; R v Taylor [2017] EWCA Crim 2209; R v Baldwin [2021] EWCA Crim 703

Outcomes

Appeal allowed in part.

The portion of the restraining order prohibiting contact with the children was deemed unnecessary, disproportionate, procedurally flawed, and improperly linked to Family Court jurisdiction.

Restraining order varied to remove the prohibition on contact with the children.

Lack of evidence regarding the children's welfare, unnecessary restriction given existing order concerning the complainant, procedural failings, and inappropriate reliance on the Family Court.

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