Key Facts
- •Robert McCarren was acquitted of three counts of breaching a non-molestation order.
- •A restraining order was imposed on acquittal.
- •McCarren appealed the restraining order.
- •The messages sent by McCarren were not considered vexatious or harassing.
- •The prosecution offered no evidence, but sought a restraining order with McCarren's consent.
- •The judge imposed a five-year restraining order without explicitly finding it 'necessary'.
- •There were procedural errors in the application and granting of the restraining order.
Legal Principles
A court can impose a restraining order on acquittal if it's necessary to protect a person from harassment.
Section 5A(1) Protection from Harassment Act 1997
Necessity to protect from future harassment must be established; evidential basis is the defendant's conduct.
R v Major [2010] EWCA Crim 3016, R v Baldwin [2021] EWCA Crim 703
Prosecutor must serve a notice of intention to apply for a restraining order, summarizing facts and evidence.
Criminal Procedure Rules 31(3), R v Baldwin [2021] EWCA Crim 703
The judge must identify the factual basis for imposing the order, giving reasons.
R v Major [2010] EWCA Crim 3016, R v Baldwin [2021] EWCA Crim 703
Even with consent, the court must still find necessity for the order.
R v Major [2010] EWCA Crim 3016, R v Baldwin [2021] EWCA Crim 703
Court can flexibly adjust procedural time limits, forms, and service requirements unless legislation dictates otherwise.
Criminal Procedure Rule 31(9)
Outcomes
Appeal allowed; restraining order quashed.
No sound basis for a finding of necessity; significant procedural errors occurred.