I was forced into pleading guilty to breaching a restraining order, by chance “without good reason”. It was a 12 second long chance encounter with my son in a busy town centre on a Saturday, but I was technically within the magic radius of the complainant and that’s all it needed.
The deal then was “plead guilty to this so we don’t have to put our witness on the stand, and you won’t get a custodial sentence. Force a trial and we’ll invoke a second charge, we’ll find you guilty on both, and that then lies on the guidelines of prison time”.
I was furious and gutted because I had damn good reason to speak to son, but the risk was too great. It was then confirmed that other charge would be “laid on file” and would form no part of anything at all.
Once I’d pleaded guilty, the barrister “tested the water” with the judge by asking for a delay while a psychiatric report was prepared “in case there is a custodial sentence”.
The judge clearly said “There’s no need for that as I won’t be considering a custodial sentence”.
At the sentencing, the judge said he’d read the PSR, he was satisfied, and gave an early indication of sentence to exclude any custodial element.
There was then a short break while my barrister and the CPS went and did their backroom thing, and then came back and did a bit of to-and-fro in front of the judge.
I wasn’t shown the order on the day, the CPS then posted it to the wrong address, and when it got to me, it was VERY different from what I clearly heard discussed.
For example, I am prohibited from being on any part of an entire main 30 mile long north-south road which runs through several towns, including mine, for 3 hours a day, for 5 years, because she lives on it.
And most importantly, there was nothing in the draft order I was shown about this geographical and time restriction. It was never discussed, anywhere.
Then there is this section:
Finally, it lists the second “dropped” case, and is randomly partly in Welsh, not translated into English.
So I immediately pointed this out to the solicitor, who spoke to the barrister, who replied:
Er, no, that was about me being allowed to use the road as part of a large, organised running club of which I was already a member. Nothing to do with the length and times.
The restriction on 30 miles of road is ridiculous and given the geography, prevents me from any kind of realistic travel or employment. It was not mentioned on the draft order, nor did I hear “the length of” mentioned in court. The previous version of the order just referred to the section directly outside her house. Note that at no point was there any suggestion that any offence had taken place either on a weekday, nor on that road!
I had never been arrested in my life before, there was no evidence of violence or aggression in the encounter, and certainly no pattern, and the PSR said:
There seems to be much relevant in an appeal of REGINA VS MAJOR (see below), particularly with regard to the use of the term “further” violence, for example:
“We are concerned also that the words "or will cause fear of violence" offend the provisions of section 5A(1) and they too should be removed”.
As soon as the other spotted a typo in her name, the order was corrected a couple of days later; surely my barrister should not actually be excusing the CPS? My concern here is that he used to be a CPS prosecutor, and sometimes I did wonder which side he was on. Cases fall or people go to prison because of uncorrected "beaurocratic errors".
Given “the deal” and the words of the judge, there was NO reality of a custodial sentence. My concern here is the “sit and wait” attitude that “An application in the future is more likely to meet with success” – well, it’s precisely the failure to make a timely appeal before which landed me in this position in the first place. I’ve got 5 days to do something. Given the solicitor doesn’t seem to want to do it, what should I do?!? Because I was kind of hoping for a bit more from £18k of £360/hour barrister to be honest….
https://www.casemine.com/judgement/u...94e0775e7f0cdd
The deal then was “plead guilty to this so we don’t have to put our witness on the stand, and you won’t get a custodial sentence. Force a trial and we’ll invoke a second charge, we’ll find you guilty on both, and that then lies on the guidelines of prison time”.
I was furious and gutted because I had damn good reason to speak to son, but the risk was too great. It was then confirmed that other charge would be “laid on file” and would form no part of anything at all.
Once I’d pleaded guilty, the barrister “tested the water” with the judge by asking for a delay while a psychiatric report was prepared “in case there is a custodial sentence”.
The judge clearly said “There’s no need for that as I won’t be considering a custodial sentence”.
At the sentencing, the judge said he’d read the PSR, he was satisfied, and gave an early indication of sentence to exclude any custodial element.
There was then a short break while my barrister and the CPS went and did their backroom thing, and then came back and did a bit of to-and-fro in front of the judge.
I wasn’t shown the order on the day, the CPS then posted it to the wrong address, and when it got to me, it was VERY different from what I clearly heard discussed.
For example, I am prohibited from being on any part of an entire main 30 mile long north-south road which runs through several towns, including mine, for 3 hours a day, for 5 years, because she lives on it.
And most importantly, there was nothing in the draft order I was shown about this geographical and time restriction. It was never discussed, anywhere.
Then there is this section:
"This order is made to protect [XXX] from further conduct which amounts to harassment or will cause fear of violence."
So I immediately pointed this out to the solicitor, who spoke to the barrister, who replied:
This was an application to amend the Restraining Order not an application for a new order, therefore the justification for the order arose from the previous proceedings, which were not appealed. […]
As Mr XXX will no doubt recall, the learned Judge was not willing accede to our submissions in favour of alternative wording in relation to the Bxxx [road]. An agreed order means an order agreed within the ambit set by the judge rather than what we would wish to agree. Therefore, I did not allow it to slip through, the judge said no.
As Mr XXX will no doubt recall, the learned Judge was not willing accede to our submissions in favour of alternative wording in relation to the Bxxx [road]. An agreed order means an order agreed within the ambit set by the judge rather than what we would wish to agree. Therefore, I did not allow it to slip through, the judge said no.
The restriction on 30 miles of road is ridiculous and given the geography, prevents me from any kind of realistic travel or employment. It was not mentioned on the draft order, nor did I hear “the length of” mentioned in court. The previous version of the order just referred to the section directly outside her house. Note that at no point was there any suggestion that any offence had taken place either on a weekday, nor on that road!
So far as access to medical facilities is concerned, if it is an emergency then Mr XXX can use the road to travel to hospital at any point as that would amount to a reasonable excuse. […] An application now will be rejected out of hand by the judge as an attempt to re-litigate the previous issues. An application in the future is more likely to meet with success.
So far as the fear of violence is concerned, that is a standard wording from a template I am afraid. Mr XXX may feel aggrieved by it, but I am afraid he does not have a remedy that I am aware of.
So far as the fear of violence is concerned, that is a standard wording from a template I am afraid. Mr XXX may feel aggrieved by it, but I am afraid he does not have a remedy that I am aware of.
I had never been arrested in my life before, there was no evidence of violence or aggression in the encounter, and certainly no pattern, and the PSR said:
"The defendant’s reconviction calculation is 14%, which indicates that the defendant poses a Low risk of generic recidivism, based on static factors of his age and antecedent record".
"Mr XXX does not present with strong attitudes permitting for physical domestic abuse of a partner [and] there is no concern in terms of direct physical violence to Ms XXX or their son."
"Mr XXX does not present with strong attitudes permitting for physical domestic abuse of a partner [and] there is no concern in terms of direct physical violence to Ms XXX or their son."
“We are concerned also that the words "or will cause fear of violence" offend the provisions of section 5A(1) and they too should be removed”.
As to the use of the wrong reference number, that is no more than bureaucratic error.
It will be little comfort to Mr XXX, but the reality is he could well be in the early stages of a custodial sentence at this point and overall he has been extracted from this situation with surprisingly little damage.
https://www.casemine.com/judgement/u...94e0775e7f0cdd
4 Putting people in fear of violence
(1) A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.
11. The grounds of appeal are (1) that the learned Recorder erred in law by imposing a restraining order where the uncontested facts of the case did not provide foundation for such an order and (2) that alternatively the learned Recorder erred in law by imposing a restraining order without making a finding as to the factual basis for imposing that order.
20. While there may well have been good reasons for making the order, in our judgment they are not apparent from the Recorder's remarks and we can therefore reach no conclusion as to whether or not the making of the order in this case was in fact justified. It follows that the second ground of appeal is made out and we quash the restraining order. To that extent the appeal succeeds.
21. We would add our concerns about the terms of the proforma restraining order used in the Crown Court where orders under section 5A(1) of the Protection from Harassment Act 1997 are made. The printed order is in these terms:
"This order is made to protect [there is then a space for the victim's name to be inserted] from further conduct which amounts to harassment or will cause fear of violence."
It may be that the word "further" would need to be deleted from the order to reflect the amendment to section 5(2) of the Act by the Serious Organised Crime and Police Act 2005, omitting the word "further" from the phrase "further conduct". We are concerned also that the words "or will cause fear of violence" offend the provisions of section 5A(1) and they too should be removed. We invite those who are responsible for the provision of this order to have regard to those observations and to consider whether an amendment is required.
(1) A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.
11. The grounds of appeal are (1) that the learned Recorder erred in law by imposing a restraining order where the uncontested facts of the case did not provide foundation for such an order and (2) that alternatively the learned Recorder erred in law by imposing a restraining order without making a finding as to the factual basis for imposing that order.
20. While there may well have been good reasons for making the order, in our judgment they are not apparent from the Recorder's remarks and we can therefore reach no conclusion as to whether or not the making of the order in this case was in fact justified. It follows that the second ground of appeal is made out and we quash the restraining order. To that extent the appeal succeeds.
21. We would add our concerns about the terms of the proforma restraining order used in the Crown Court where orders under section 5A(1) of the Protection from Harassment Act 1997 are made. The printed order is in these terms:
"This order is made to protect [there is then a space for the victim's name to be inserted] from further conduct which amounts to harassment or will cause fear of violence."
It may be that the word "further" would need to be deleted from the order to reflect the amendment to section 5(2) of the Act by the Serious Organised Crime and Police Act 2005, omitting the word "further" from the phrase "further conduct". We are concerned also that the words "or will cause fear of violence" offend the provisions of section 5A(1) and they too should be removed. We invite those who are responsible for the provision of this order to have regard to those observations and to consider whether an amendment is required.
Comment