Osman Awan [2019] EWCA Crim 1456
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In Osman Awan [2019] EWCA Crim 1456 the Court of Appeal (Lord Justice Holroyde, Mr Justice Goss and Mr Justice Knowles) allowed an appeal against a restraining order, quashing the order imposed below and substituting a more limited order.
Mr Awan had pleaded guilty before magistrates to harassment contrary to section 2 of the Protection from Harassment Act 1997 and was committed to the Crown Court at Bradford for sentence because he had committed the offence in breach of a suspended sentence. On 23 May 2019 he was sentenced to two months’ imprisonment for the harassment offence. His suspended sentence of nine months, originally imposed on 24 November 2017, was reduced to six months but activated consecutively, producing a total sentence of eight months’ imprisonment. A restraining order was also imposed. Mr Awan did not challenge the prison sentence but appealed by leave of the single judge against the restraining order.
The appellant, then aged 36, had been in a relationship with Gemma McDade for about fourteen years, during which they had four children, aged nine, seven, five and eight months at the time of separation on 3 February 2019. The suspended sentence had been imposed for an incident at the family home on 30 April 2017 in which Mr Awan struck Miss McDade, inflicted grievous bodily harm on a police officer who fell downstairs during a struggle, and escaped from lawful custody. Mr Awan, who had no previous convictions, pleaded guilty and received nine months’ imprisonment suspended for eighteen months with unpaid work and a rehabilitation activity requirement. On 16 August 2018 he was brought back to the Crown Court for breach of the suspended sentence order, having failed properly to perform his unpaid work, and additional hours were added. It appeared that during the period of the suspended sentence the couple resumed cohabitation briefly before the relationship broke down again and the appellant left the family home in early February at Miss McDade’s insistence.
The harassment offence was committed between 12 and 27 February 2019. During that period Mr Awan sent about four hundred text messages to Miss McDade containing a mixture of abuse, expressions of love, apologies for past misconduct, pleas for reconciliation and self-pity. Miss McDade’s comparatively few replies made clear she no longer wished to live with him. On 24 February 2019 Mr Awan went to the family home and refused to leave for about four hours until police were called. Miss McDade did not wish to pursue a prosecution for that incident but the appellant continued to call and text her. He also texted one of her sisters, Kelly McDade, saying he wanted to kill both himself and Gemma McDade if she would not take him back. The matter was reported to police and Mr Awan attended the police station voluntarily but made no comment when interviewed under caution.
At the sentencing hearing the judge was assisted by a pre-sentence report and a victim personal statement from Miss McDade dated 17 April 2019, in which she complained that the appellant was spreading malicious lies about her among family and friends and telling lies about her to their oldest son during contact. It did not appear that prior to the hearing any specific enquiries had been made of Miss McDade as to whether she sought a restraining order. Prosecution counsel nonetheless invited the judge to make an order prohibiting contact with Miss McDade or Kelly McDade and prohibiting Mr Awan from going to Miss McDade’s home. Social services were aware of the situation but had not found it necessary to take action regarding any of the children. There were no family court or civil court proceedings between the parties. Miss Brown for the appellant informed the court that Mr Awan was living with his mother and having contact with the children through arrangements made via another of Miss McDade’s sisters, Joanne Garnett. Miss Brown asked that any restraining order be qualified to permit contact with Miss McDade via a third party to arrange contact with the children. The judge indicated that any such contact should be through the appellant’s solicitor. Miss Brown responded that the existing arrangement had worked satisfactorily without professional involvement and that engaging a solicitor would be a considerable financial burden. Prosecution counsel submitted that any contact concerning the children should be made through a solicitor.
The judge in sentencing remarks rightly emphasised the seriousness of persistent harassment at a time when the appellant was subject to a suspended sentence for offences including assaulting Miss McDade. He imposed the prison sentences and made a restraining order in the terms sought by the prosecution with the addition of the words “save and except for the purposes of arranging contact, such contact to be through the defendant’s solicitor and the solicitor acting for the complainant in this case”.
Miss Brown advanced two grounds of appeal. First, she submitted that imposing an unlimited restraining order was wrong in principle and manifestly excessive. Secondly, she submitted that the judge erred in imposing a prohibition which in practice severely impeded the appellant’s ability to have contact with his children. In support Miss Brown relied upon principles set out in Khellaf [2017] 1 Cr.App.R (S) 1. As to duration, she submitted that the harassment took place over about two weeks at the end of a fourteen year relationship, that the appellant had belatedly accepted the relationship was over, and that it was reasonable to expect matters would settle down over time, rendering an indefinite order unnecessary. As to the proviso, she submitted the appellant could not in practice take advantage of it as he had no solicitor and nor did Miss McDade. The order interfered with the children’s right to family life and interfered disproportionately with the appellant’s rights.
Mr Chinweze for the respondent set out views very recently expressed by Miss McDade to the effect that she wanted no contact with the appellant and wished him to be restrained from contacting her, but had no objection to his having contact with the children. Two possible intermediaries were proposed, Miss McDade’s sister Joanne Garnett and a cousin of the appellant, Wajid Choudry. Mr Chinweze suggested that if the order was to permit contact with the children it should also prohibit the appellant from approaching within one hundred metres of Miss McDade’s home, bearing in mind that the start and end of contact meetings might be occasions when emotions between the adults ran high. Mr Chinweze acknowledged the submissions against indefinite duration but invited the court to consider whether it was necessary.
Lord Justice Holroyde, delivering the judgment, set out the power to make a restraining order conferred by section 5 of the Protection from Harassment Act 1997. Section 5(2) provided that the order may, for the purpose of protecting the victim or victims or any other person mentioned in the order from further conduct which amounts to harassment or will cause a fear of violence, prohibit the defendant from doing anything described in the order. The judge was entitled to find it appropriate to prohibit contact between the appellant and either Miss McDade or her sister Kelly in accordance with that statutory provision. The judge was also correct to say that continuing contact between the appellant and the children was to be encouraged, stating that it was not a question of restricting contact with his children but restricting the circumstances in which further offences could be committed involving adults being used as a conduit for messages.
With respect to the judge, however, Lord Justice Holroyde considered it unfortunate that the decision as to the appropriate terms and duration of the order was made with undue haste. The decision in Khellaf included at paragraph fourteen four principles. First, the court should take into account the views of the person to be protected, it being the prosecution’s responsibility to ensure the necessary enquiries were made. Secondly, no order should be made unless the judge concluded it was necessary to protect the victim. Thirdly, the terms should be proportionate to the harm which it was sought to prevent. Fourthly, particular care should be taken when children were involved to ensure the order did not make contact between parent and child impossible where such contact was otherwise inappropriate.
Regrettably, three of those principles were not observed. First, it did not appear that proper enquiry had been made by the prosecution in advance to ascertain Miss McDade’s views. That being so, no sufficient enquiry was made as to whether she opposed contact between the appellant and the children and, if not, what could in practice be arranged to facilitate such contact. The judge was entitled to receive significantly more assistance from the prosecution than he did. Secondly, with regard to the third principle, the relevant harm was further harassment of Miss McDade by direct or indirect contact. The appellant had shown himself unreliable when feeling angry or distressed by Miss McDade’s attitude towards him, but there was no basis to make an order preventing harassment indefinitely. The duration appeared not to have been fully considered. The court agreed with Miss Brown’s simple proposition that in the circumstances it was realistic to think the relationship between the adults would settle down within a comparatively short period. Lastly, with reference to the fourth principle, quite apart from the human rights of the appellant and the children, in a case where there were no current family court or civil court proceedings, there was a matter of commonsense. Although submissions were made about the obstacles to the appellant acting through his solicitor, which were dismissed somewhat peremptorily by the judge, no one appreciated at the time that the order was also premised upon Miss McDade having a solicitor when in fact she had no solicitor acting for her.
The court was satisfied that the appeal must succeed. It remained necessary that there be a restraining order, but it could be limited in time and could contain a proviso which would in practice facilitate contact between the appellant and his children. The court therefore quashed the restraining order imposed below and substituted an order which for a period of five years prohibited the appellant from doing any of the following. First, he must not contact directly or indirectly Gemma McDade, save that contact may be made indirectly through Joanne Garnett and or Wajid Choudry for the purposes of arranging contact between the appellant and the children of the family. Secondly, the appellant must not contact directly or indirectly Kelly McDade. Thirdly, the appellant must not approach within one hundred metres of 45 Vicarage Road, Shipley, BD18 1HA. In short, the court allowed the appeal, replacing an indefinite and impractical restraining order with a five year order that permitted indirect contact through named intermediaries for the purpose of arranging contact with the children.