England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		5th October 2005

1. LORD JUSTICE SCOTT BAKER: This is an appeal by way of case stated from a decision of the Peterlee Youth Magistrates' Court. The issue is the true construction of section 5(4) of the Protection from Harassment Act 1997. Section 5 gives power to the court to impose a Restriction Order in certain cases. It provides as follows:

5. - (1) A court sentencing or otherwise dealing with a person ("the defendant") convicted of an offence under section 2 or 4 may (as well as sentencing him or dealing with him in any other way) make an order under this section.

(2) The order may, for the purpose of protecting the victim of the offence, or any other person mentioned in the order, from further conduct which-

(a) amounts to harassment, or.

(b) will cause a fear of violence. prohibit the defendant from doing anything described in the order.

(3) The order may have effect for a specified period or until further order.

2. In other words, it may be made for a specified period or without limit of time. It seems to me abundantly clear from reading section 5 that the purpose of a restraining order of this kind is to protect the victim. Subsection (4), with which this case is immediately concerned, provides.

"(4) The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order."

3. What happened in this case was in summary as follows. On 6th May 2004 a restraining order was made against Kevin Hall, the respondent, for a period of 12 months. On 15th January of this year he broke it. On 29th January of this year he broke it again. On 22nd February of this year a sentence of six months' detention and training order was imposed on him for the two breaches.
4. On 16th March of this year the appellant, conscious of the fact that the order was due to run out on 6th May, applied for the court to vary the order under section 5(4) of the Act by extending the expiry date. The issue before this court is whether the lower court had any power to extend the order. The Justices held that there was no power to extend the order and the submission of the respondent effectively comes to this: the court has an option in the first instance whether to make a restraining order without limit of time or for a specified period, but if it opts to make an order for the specified period whatever the change of circumstances, the order remains for that period and cannot be extended.
5. Mr Burn, for the respondent, says that the subsection gives power for the order to be varied or discharged and therefore it is possible for an order that has been made for a finite period to be discharged, no doubt, before the completion of that period, but he submits there is no power to extend the duration of the order.
6. For my part I cannot read the subsection in that way. Nowhere does the subsection say that there is not power to extend the period of an order for a specific term. This incidentally is in contradistinction to section 11(6) of the same Act which deals with the position in Scotland and in that subsection specifically provides that the court is not to have power to increase the period for which the order is to run. Had it been the intention of the draftsman that that should be the position in England, then, in my judgment, it is very likely that it would have been made expressly clear in section 5(4).
7. We were referred to the case of Shaw v the Director of Public Prosecutions [2005] EWHC 1215 (Admin) in which this court made it clear that there had to be a good reason in the form of some change of circumstances to justify the variation of an order under section 5(4). Laws LJ said this, at paragraph 14 of his judgment:

"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."

So he certainly envisaged that it was possible to extend these orders and indeed there was a concurring judgment from David Steel J. The learned Lord Justice went on:

"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."

8. In my judgment precisely the same consideration applies when it is a question of extending the duration of the order. It seems to me that the duration of the order, whether it be for a specified period or without limit of time, is just as much a term of the order as any specific provision for example, restraining the defendant from going within a specified distance of any particular place. The purpose of this provision is to protect a victim, or potential victim, from harassment. In my judgment, the subsection should be construed so as to enable the court to do that in the most simple and expeditious way possible.
9. In the present case, the restraining order was made for a period of 12 months. The respondent broke the order on two occasions and it seems to me that in these circumstances nothing could be clearer than that the order needed to be extended for a further period in order to protect the victim. Whether that further period is one of specific duration or without limit of time seems to me to be a matter for the court imposing the order. The difference between the two kinds of order is that if the order is without limit of time it places the burden upon the respondent to come back when he contends that there is a change of circumstances sufficient to justify the order being discharged. On the other hand, if the court thinks that the problem is likely to be overcome within a specified period, then a determinate order can be made and the onus is on the victim or the Crown Prosecution Service to apply for the order to be extended if the circumstances appear to have changed. I would therefore answer the question posed by the Justices in the affirmative. The expiry date of a restraining order made for a specified period can be varied by the court as to the expiry date. I would allow the appeal and remit the case to the magistrates with a direction to consider the appellant's application to extend the period of the restraining order.
10. MRS JUSTICE RAFFERTY: I agree.
11. LORD JUSTICE SCOTT BAKER: Does that cover everything?
12. MR PEACOCK: Yes.