England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2010] EWCA Crim 2955

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		Neutral Citation Number: [2010] EWCA Crim 2955
		Case No: 2010/4344/A7

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2A 2LL

1 December 2010

B e f o r e :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE CALVERT SMITH
MR JUSTICE GRIFFITH WILLIAMS
____________________

	R E G I N A
	v
	PIERRE THOMPSON

____________________

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____________________

Mr N Wrack appeared on behalf of the Appellant
Mr J Wing appeared on behalf of the Crown
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HTML VERSION OF JUDGMENT
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THE LORD CHIEF JUSTICE: Pierre Ricardo Thompson is now 27 years old. He has previous convictions including convictions for robbery, threatening behaviour, battery and common assault. He appeared before the Crown Court at Isleworth for trial in June 2010. He was charged with one count of common assault and a second count of assault occasioning actual bodily harm to which a third alternative count of common assault was added. He was acquitted of both counts by a jury in a trial presided over by Miss Recorder Pinto QC. However, a few days later the learned Recorder imposed a restraining order on the appellant, as he is, pursuant to section 5A of the Protection of Harassment Act 1997, for a period of 12 months.

The facts can be taken briefly. The complainant and the appellant had been in a relationship which came to an end in July 2009. He began a relationship with another woman and then, quite unconnected with the present case, he was arrested in late August 2009. He was then granted bail under curfew conditions and went to reside with the complainant at her address. There was a dispute about who had invited who to come. There was also a dispute about the number of times they had sexual intercourse after he returned to live in the complainant's home - she said it was twice, he said it was more frequently. Be all that as it may, it was alleged that he assaulted the complainant on two separate occasions shortly after going to live in the house on 6th and 9th September.

The first allegation, 6th September, was that the appellant had picked up the complainant by the neck, bending her over the bannister. His case was that they had argued during that day but he had not had any physical contact with her at all and the allegation of common assault was denied.

The second incident allegedly occurred on 9th September, some three days later, when the appellant assaulted the complainant. His account of this incident was that there had been physical contact between the two of them, during which he had acted in self-defence. He said in his evidence that he had picked or held the complainant by the throat, that he had taken her from room to room, and that he had caused a black eye which had happened accidentally in the course of the incident. The court was shown photographs of the complainant which show injuries which do not amount to grievous bodily harm or anything like that, but show a number of bruises over different parts of her body - all apparently resulting from his necessary defence of himself. In particular, he denied that he had struck her with a bat or sought to strangle her with a cable as she alleged.

After his arrest for these offences he was remanded in custody and then released on conditional bail. There were no further incidents between them before trial. As we have recorded, the jury acquitted the appellant on counts 1 and 2 and in due course the prosecution offered no evidence on count 3.

The Crown however indicated that consideration should be given to an application which in due course was made, for a restraining order following acquittal in accordance with the statutory provisions in their current form, section 5A of the Protection from Harassment Act 1997, as amended by the relevant section of the Domestic Violence (Crime and Victims) Act 2004. It is unnecessary for this judgment to recite the statutory provisions. Griffith Williams J has just given judgment in Major in which they are set out.

The Recorder approached this part of her responsibility with great care. She explained in her judgment the background and the fact that there had been acquittals. She examined the statutory provisions and she directed herself in accordance with statute to consider these issues - first, whether it was necessary to protect the complainant, and second, if so, from harassment by the appellant. She reminded herself that harassment included but was not limited to conduct which alarmed another person or caused that other person distress. She recorded the submissions advanced to her by Mr Wrack that such an order was unnecessary and disproportionate, his reliance on the jury's verdicts and his submission that there was no foundation on which it was open to her to find that it was necessary for harassment to be prevented for the future. She also referred to his submissions that attention should be paid to the fact that the defendant had been remanded in custody and then bailed, subject to tagging, and the fact that there was no evidence that once he was released from custody on conditional bail that he had made any attempt to contact the complainant, in breach of conditions that he should not do so and in breach of an exclusion zone or a number of exclusion zones attached to his bail conditions. So she carefully set out and considered the submissions which in effect Mr Wrack repeats before us in support of this appeal.

She examined the evidence. She narrated, not a detailed account of all the evidence that was before the jury, but sufficient to demonstrate that she had considered the evidence before deciding that the order should be made. She recorded that quite apart from the evidence between the parties which was in dispute, and that there was a great deal of such evidence, the appellant had accepted in evidence that in the course of the incident on 9th September the complainant had been injured by him, albeit in self-defence, in the course of direct physical contact. She recorded the way in which he had manhandled the complainant, handling her around her throat and manhandling her from one room to another in her own home. She also noted the injuries that the complainant had sustained in the course of the incident. We have looked at the photographs and they are, as we have indicated, clear evidence that she had suffered widespread injuries.

The Recorder directed herself that she could not make an order on the basis that the appellant had shown some improper attitude towards the complainant, that she should not take account of whether or not he was moral or immoral, or the cost to the public, or the saving of court time, or that she should save the complainant from bringing civil proceedings, or indeed that it was in the interests of the appellant himself that there should be a restraining order. As she said, none of those matters were relevant in this case. She returned to her self-direction:

"... is it necessary and if it is necessary, is it an order that will protect the person in the future from harassment by the defendant?"

She decided that on the basis of the evidence before her an order should be made that was as narrow as it could be, and proportionate to the issues that were involved. In particular that the appellant shall not contact directly or indirectly the complainant, either by himself or through any third party and that he be restrained from visiting her home address (which is described in the order) or come within 100 metres of that address, and finally that the order should continue for 12 months from the date when it was made 24th June 2010.

She indicated, having reached her conclusion, that she did not in fact expect that the appellant would have any difficulty in complying with the order because he had already expressed himself in clear terms that he had no wish to speak to or see the complainant again or indeed to have anything to do with her. But having recorded that, she said that it nevertheless was necessary to ensure her protection by making the order that she had.

The submissions before us have already been telegraphed in advance. They are in effect a repetition, none the worse for that, of the submissions made below. The order was unnecessary; it went behind the verdict of the jury just because the Recorder was relying on the evidence given at trial. We do not agree. She did not go behind the verdict of the jury. She examined the evidence that was before the jury and on the basis of that evidence she reached the conclusion that the order was necessary. That was a finding she was entitled to make, which has been properly explained by her in the course of what are called "sentencing remarks" but are better described as her "judgment". It has also been submitted to us that the order was unnecessary. The evidence to sustain that submission was that during the time when the appellant was released on bail there had been no suggestion at any time of him acting in contravention of the conditions of his bail. That submission rather overlooks, as indeed the submission did in the case we have just heard of Major, that the difference between an individual who acts in breach of bail (particularly if he has been released from custody and has been bailed on conditions) has the overwhelming sanction that a breach of bail will result in an immediate return back into the custody from which he was bailed in the first place.

We have no difficulty with this order. We commend the Recorder for the careful way in which she addressed the issues, for the clarity of her reasoning and the explanation that she has given both to the public and to the appellant himself and indeed to this court considering the issue on appeal. We can see no reason to interfere with her decision. The appeal therefore is dismissed.