England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		12th April 2005

1. LORD JUSTICE LAWS: This is an appeal by way of case stated against a decision of District Judge Cooper, sitting at the Nottingham Magistrates' Court, on 27th September 2004 not to order the discharge of a restraining order which had been made against the appellant on 10th February 1999 pursuant to section 5(1) of the Protection from Harassment Act 1997.
2. The history of the matter may be gleaned from the facts stated in paragraph 2 of the case. On 10th February 1999 the appellant was convicted at the Nottingham Magistrates' Court of an offence of harassment contrary to section 2 of the 1997 Act. The victim was his wife, Valerie Shaw. The harassment was said to have taken place between 1st February 1998 and 5th December 1998 and consisted of his persistently sending letters and making telephone calls. These acts were carried out by the appellant from prison, where throughout the relevant period he was serving sentences amounting to six years' imprisonment imposed for five offences of rape of prostitutes.
3. Upon his conviction of harassment the appellant was fined £100 and a restraining order was made which prohibited him from contacting his wife by letter or telephone until further order.
4. An appeal to the Crown Court against conviction and sentence was launched but abandoned on 25th March 1999. On 16th November 1999 the appellant's application to discharge the restraining order was dismissed in the magistrates' court and the order was varied so as also to prohibit personal contact with his wife. An appeal against that order was also launched and then abandoned.
5. On 28th January 2000 the appellant was released from prison but recalled 13 days later. He was finally released on 31st July 2000.
6. On 26th April 2002 a further application for discharge of the restraining order was dismissed, as was a third such application on 15th December 2003. The following day, 16th December, the appellant completed and signed a fourth application. However, it was not lodged with the Nottingham Magistrates by the appellant's solicitors until 4th February 2004. On 18th February 2004 it was adjourned for a contested hearing. There followed a number of ineffective hearing dates until finally the application came before the District Judge on 27th September 2004.
7. The District Judge states in the case that there had been no material change of circumstances since the hearing of the last application to discharge on 15th December 2003 . As I have said he dismissed the application. That is the decision appealed against.
8. The right to apply for the discharge of a restraining order is given by section 5(4) of the 1997 Act, which contains no express requirement to satisfy the court that there has been a material change in circumstances since the making of the restraining order or the dismissal of any earlier application for a discharge. Section 5(3) provides that a restraining order may be made for a specified period or until further order. As I have said, the order in this case was made until further order.
9. The District Judge was of the opinion (paragraph 6.1 of the case) that a change of material circumstances was, as he put it, a "primary consideration" in dealing with an application to discharge under section 5(4). I take him to mean that an applicant for a discharge is obliged to show such a change, notwithstanding the silence of the statute on the point.
10. Although no cases were cited to him, the District Judge himself referred (paragraph 6.2 of the case) to Regina v Nottingham Justices, ex parte Davis [1980] 71 Crim App R 178. In that case this court (Donaldson LJ and Bristow J) held (I summarise) that on second or subsequent applications for bail the court is only to investigate whether circumstances have materially changed.
11. The question for this court's consideration is framed in the case stated thus:

"Whether I was correct to regard as a primary consideration on an application to discharge a restraining order the question of whether there had been a change of circumstances since the dismissal of the last application to discharge the order, bearing in mind that the Protection from Harassment Act 1997 is silent as to how a court should approach such applications."

12. In his skeleton argument counsel seeks to distinguish ex parte Davis from the present case. He says that the refusal of bail is finite, that is to say it will be spent by the conclusion of the criminal proceedings to which it relates; but a restraining order made until further order is without limit of time and can only be ended by an order of the court. This is a distinction which is true so far as it goes.
13. Counsel accepts that on an application to discharge, as opposed to a statutory appeal, an applicant may not challenge the validity of the original order, including the validity of any provision that it be made until further order, but he submits that, at least in a case where the order has so far been obeyed and respected, the court must consider every application to discharge, including successive applications, on their merits and must hear evidence in order to do so.
14. It is common ground that, absent an appeal, a restraining order remains good and valid according to its terms, including a term which extends it until further order. It seems to me that it follows that on an application or further application to discharge the applicant must show that something has changed so that the continuance of the order is no longer necessary or appropriate. Unless that is so, the applicant would be entitled to have the merits of an earlier decision or decisions re-determined anew without having appealed them; through Mr Gibson disavows any such consequence. It would in any case be contrary to the principle of finality in litigation, potentially wasteful of scarce judicial resources and accordingly contrary to the public interest. In fact, Mr Gibson was disposed to accept this morning that some change of circumstances has to be shown, but he persisted in the submission that the court must conduct a full hearing on the merits on evidence every time.
15. It seems to me that the only question upon a subsequent application such as was made here is whether events have happened which, in contrast to the position which previously obtained, now mean that the order is as I have said no longer necessary or appropriate.
16. For all these reasons I consider that the District Judge was quite right. I would answer the question posed in the affirmative and dismiss the appeal.
17. MR JUSTICE DAVID STEEL: I agree.
18. On 26th April 2002, when the appellant had been released from prison, he made an application to discharge the order and is recorded as having told the court when that was refused: "I shall be re-applying as soon as I go downstairs and every day thereafter". In accordance with that threat, when application to the Magistrates' Court was made on 15th December 2003 and was dismissed, he did not exercise any right of appeal but issued a further application 24 hours thereafter, albeit that was not heard until nearly six months later.
19. It strikes me that to permit an appellant in the circumstances in which he finds himself to submit further applications for an order to be discharged without showing any change of circumstance would simply amount to an encouragement to the abuse of the process of the court.
20. MR MANSELL: My Lord, I am conscious of the defendant's means, but that does leave the question of costs. The Crown had thought it necessary to be represented here today and in those circumstances some token contribution may well be appropriate.
21. LORD JUSTICE LAWS: What order are you asking for?
22. MR MANSELL: £250, my Lord.
23. LORD JUSTICE LAWS: Mr Gibson?
24. MR GIBSON: The appellant is legally aided. Insofar as the defendants have sought to be represented today, they did not seek to be represented today until very recently.
25. LORD JUSTICE LAWS: They are clearly entitled to come along, they are the respondents to the application, but I do not think we can order you to pay £250 full stop if you are legally aided; is that not right, Mr Mansell?
26. MR JUSTICE DAVID STEEL: Does this depend on whether he has any contribution, or he has legal aid and therefore the assessment as to whether in fact he has any resources must be made at this stage; is that right?
27. MR MANSELL: My Lord, the position is certainly that legally aided defendants are quite often required to pay a contribution towards prosecution costs following a conviction, or indeed following --
28. LORD JUSTICE LAWS: It is not like ordinary litigation then, is it, where if a losing party is legally aided the winning party gets what many, many years ago used to be called a football pools order?
29. MR MANSELL: My Lord, no, certainly not the case with --
30. LORD JUSTICE LAWS: If you can justify the court's power to make an order for £250 we will consider on the merits whether to accede to it. Is it the Prosecution of Offences Act?
31. MR MANSELL: My Lord, yes.
32. LORD JUSTICE LAWS: Whereabouts in Archbold do you want us to look?
33. MR JUSTICE DAVID STEEL: Is it page 862?
34. MR MANSELL: Indeed.
35. LORD JUSTICE LAWS: That is Crown Court proceedings.
36. MR MANSELL: Indeed.
37. MR JUSTICE DAVID STEEL: And the Court of Appeal Criminal Division.
38. LORD JUSTICE LAWS: That is subsection (2), yes.
39. MR JUSTICE DAVID STEEL: What about this court? It does not really seem to deal with it.
40. LORD JUSTICE LAWS: If you cannot show us the authority for it, speaking for myself, I would not be inclined to make the order.
41. MR MANSELL: My Lord, I have to bear some responsibility for not being in a position to deal with it.
42. LORD JUSTICE LAWS: Most of it, I should think.
43. MR MANSELL: Indeed, my Lord, yes. My Lord, my friend rightly tells me that this is an application that is governed by the Civil Procedure Rules on appeal because of course it is an application to state a case.
44. LORD JUSTICE LAWS: Well, Mr Mansell, he may be absolutely right, but I am disinclined to sit here conducting a great deal of research which should have been done earlier.
45. MR MANSELL: My Lord, yes. I withdraw my application.
46. LORD JUSTICE LAWS: Very well.
47. MR GIBSON: Would my Lord say legal aid taxation of the appellant's costs?
48. LORD JUSTICE LAWS: I do not think there is any such feature as legal aid taxation any more. You can have an order for a detailed assessment for the purposes of the Legal Services Commission. Yes, thank you very much.