Court Examines Procedural and Substantive Requirements for Restraining Orders Post-Acquittal in R v Gino Mari
Introduction
The case of R v Gino Mari reflects on vital considerations for the judiciary when restraining orders are involved post-acquittal. Through an appeal against a restraining order imposed, the case illustrates the overarching principles employed in assessing the necessity and proportionality of such orders, especially concerning the rights to family life and the procedural formalities mandated by the Criminal Procedure Rules.
Key Facts
The appellant, Gino Mari, faced prosecution for an alleged strangulation offense but was acquitted when the prosecution offered no evidence due to the complainant’s non-attendance at re-trial. On acquittal, the prosecution applied for and obtained a restraining order prohibiting Mari from contacting not only the complainant but also their children, with exceptions for indirect contact for child contact or welfare arrangements via a third party. This restraining order was subsequently challenged by the appellant, leading to this appeal heard by the Court of Appeal Criminal Division before Lord Justice Dingemans and others.
Legal Principals
Several key legal principles underpin the case analysis:
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Civil Nature of Restraining Orders: Restraining orders, though imposed through the criminal justice system, are civil in nature and do not connote guilt. They require the civil standard of proof and are premised on assessing future risks of the behavior they aim to prevent.
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Standard of ‘Necessity’: The legislation (Protection from Harassment Act 1997, section 5A) implicates the condition that restraining orders post-acquittal can only be made if ‘necessary’ to prevent harassment, which must not be taken lightly.
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Criminal Procedure Rules Compliance: Compliance with the Criminal Procedure Rules—particularly rules 31.1(a), 31.2, 31.3, 31.6, 31.7, and 31.8—is mandatory to ensure due process. These rules ensure that the subject of a potential order can review the evidence, make informed submissions, and counter any hearsay evidence presented.
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Role of Family Court: The appeal outlines the distinct and autonomous roles of the criminal and family courts, emphasizing that orders impacting familial relations need careful adjudication and cannot be deferred readily between jurisdictions.
The appeal judges cited previous case laws for setting out applicable principles, including R v Major [2010] EWCA Crim 3016, R v Smith [2012] EWCA Crim 2566, and R v Taylor [2017] EWCA Crim 2209, among others.
Outcomes
The appellate judgment identified several failings in the imposition of the original order vis-à-vis the children:
- Lack of supporting evidence or testimony from the children or their representatives.
- Inadequate demonstration of necessity concerning the order’s impact on the children.
- Noncompliance with the procedural requirements of the Criminal Procedure Rules for the part of the order concerning the children.
- An improper deference to the jurisdiction of the Family Court.
- Disproportionate and overly lengthy duration of the restraining order with significant implications for the appellant’s familial relationships.
Consequently, the appeal was allowed, and the restraining order was varied to remove the prohibition of contact with the children while keeping the restrictions concerning the complainant in place.
Conclusion
In R v Gino Mari, the court’s detailed judgment clarifies the crucial importance of adhering to evidentiary and procedural standards when issuing restraining orders post-acquittal. The judges enforced the need for a restraining order to be ‘necessary’ underpinned by substantive evidence, and respectful of familial rights, with attention to the clarity and internal consistency of its terms. The ruling underscores the judiciary’s obligation to guard against unnecessary and disproportionate impediments to an individual’s right to family life, especially when substantive criminal culpability is not established.