Osman Awan [2019] EWCA Crim 1456

The appellant pleaded guilty to an offence under s2 of the Protection from Harassment Act 1997, that plea placed him in breach of a Crown Court suspended sentence. He was therefore committed to the Crown Court for sentence where he was sentenced to a total of 8 months’ imprisonment. He appealed solely against the restraining order that was made.

The suspended sentence was imposed in respect of an incident at the family home, he struck his partner, inflicted grievous bodily harm on a police officer as he struggled to resist arrest and he escaped from lawful custody. During the period of the suspended sentence he reconciled with his partner for a short time before he left the home at her insistence. The offence of harassment occurred after that relationship breakdown.

At the sentence hearing the victim personal impact statement made complaints that the appellant was spreading malicious lies about her, but it seemed no specific enquiries were made as to whether she sought the protection of a restraining order. At that time the appellant was having contact with the children via one of the complainant’s sisters and his Counsel asked, if an order was made, that it should permit contact via a third party. The judge allowed for contact arrangements via a solicitor.

Two grounds for appeal were advanced, the first that an indefinite order was both wrong in principle and manifestly excessive. Second that the judge erred in imposing a prohibition that severely impeded the appellant’s ability to have contact with his children as neither he nor his former partner had a solicitor. The complainant said that she wanted a restraining order but had no objection to him having contact with the children and two intermediaries were proposed.

Held: the judge was entitled to find an order was appropriate but “we think it unfortunate that the decisions as to appropriate terms and duration of the order was made with undue haste”. First, proper enquiry should have been made to ascertain the views of the complainant, second the duration of the order appears not to have been properly considered, in the circumstances of this case “it was realistic to think that the relationship between the adults would settle down within a relatively short period”. Finally, “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 is here a matter of common sense”.

The appeal succeeded, the order was quashed and replaced with a 5 year order which permitted contact through either of two named parties, with an additional condition not to go within 100 metres of the complainant’s specified home address.