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Acquitted yet restrained in absentia – an unlawful paradox? by Bilawal Khan

7th December 2021

Bilawal Khan, pupi l at KBG Chambers, provides an update in regards to the recent case of R v Leon Khan at the Court of Appeal.

 

Acquitted yet restrained in absentia – an unlawful paradox?

Summary

Last month, the Court of Appeal published its decision in the case of R v Leon Khan [2021] EWCA Crim 1526. This authority confirmed that where there has been procedural unfairness, in the instant case by proceeding in a defendant’s absence which was exacerbated by the fact that he was unrepresented, the proper course to take in respect of a restraining order is to quash it, and not for the matter to be remitted back to the Crown Court for redetermination.

Facts

The brief facts in this case are that the Applicant was charged with a malicious communication offence to which he pleaded not guilty. At the Crown Court, the Applicant was acquitted as the Crown offered no evidence. Notwithstanding acquittal, the Crown pursued an application for a restraining order pursuant to s.5A, Protection from Harassment Act 1997. On the day of the hearing, the Applicant who was representing himself failed to attend on time. The Judge proceeded in his absence after allowing some time for him to arrive. When he did eventually arrive some hours later, the Judge refused to re-open the case, having already imposed a restraining order.

Legal Principles

The Applicant sought leave to appeal on the basis that he was not allowed an opportunity to participate in the hearing and therefore it was procedurally unfair. Nicklin J, delivering the sole judgment, allowed the appeal. In the view of the author, the salient aspects of the judgment are as follows:

Courts should tread very carefully in the absence of an unrepresented Defendant because, as confirmed at paragraph 29 of the judgment, ‘the nature of the procedural unfairness meant that the Applicant had not had an opportunity (a) to cross-examine the witnesses called in support of the application for a restraining order; (b) to advance evidence in his own defence (including giving evidence himself and being cross-examined); or (c) to make submissions on whether the evidence demonstrated that a restraining order was necessary, and upon the terms and duration of any order.’

Imposition of a restraining order upon acquittal of other criminal charges, despite being civil in nature, is treated as a sentence following conviction (section 5A(5), Protection from Harassment Act 1997).

Appeals against sentence are governed by the Criminal Appeals Act, 1968. As confirmed at paragraph 35 of the judgment ‘s.11(3) limits the orders that the Court of Appeal can make on a "sentence" appeal against a restraining order on acquittal to either quashing the original order, or imposing a fresh restraining order (providing its terms are not more onerous that the terms of the original order). Remitting the application for the restraining order to be reconsidered by the first instance Court is not expressly included as an option.’

In circumstances where there was insufficient evidence to determine what an appropriate order should have been and therefore the restraining order has been quashed, it is open to the Crown to apply for a new restraining order.

Bilawal Khan

Pupil at KBG Chambers

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Acquitted yet restrained in absentia – an unlawful paradox? by Bilawal Khan