The defendant's appeal against conviction for breach of a restraining order was allowed where two identical restraining orders were in operation at the same time.Appeal against sentence and conviction. The appellant ('B') was involved in a course of harassment against the complainant ('C') who lived on the same housing estate in Surbiton. In August 1999 B was charged with causing C, on at least two occasions, to fear that violence would be used on her contrary to s.4 Protection from Harassment Act 1997. B pleaded guilty to an offence under s.2 of that Act. On 25 February 2000, he was sentenced to six months' imprisonment with an indefinite restraining order not to go within 2km of C's address which was wrongly described as Mulberry Close. After his release from prison B made an application to vary the restraining order to enable him to return home. This was refused on 20 June 2000 but the order was amended to include C's correct address. B was subsequently arrested for living at his home and pleaded guilty to breaching the restraining order. On 6 October 2000, he was sentenced to 15 months' imprisonment and a "fresh" restraining order was issued on similar terms repeating the original mistaken address. Nine months later, B was seen 500m from C's home. He was convicted of this offence on 14 June 2002 on the basis of the October 2000 order and was sentenced on 6 August 2002 to return to prison for the remaining 25 weeks of his previous sentence and thereafter to serve 18 months for the instant offence. B challenged the original sentence and order of 25 February 2000 on the grounds that: (i) it was invalidated by the mistaken address; (ii) it was invalidated by the making of a restriction by reference to a radius; (iii) it was invalidated by the recital of a s.4 offence rather than a s.2 offence; (iv) the judge must have been sentencing on the basis of a s.4 offence; (v) a six months sentence was excessive in any event as it was the maximum available under s.2 and took no account of B's guilty plea or previous good character; and (vi) an indefinite restraining order requiring B to leave his home was disproportionate and/or contrary to Art.8 of the European Convention on Human Rights. In addition, B challenged the variation of the restraining order on 20 June 2000, his sentence and the further restraining order issued on 6 October 2000, his conviction on 14 June 2002 and his sentence on 6 August 2002.HELD: (1) There was no doubt about C's correct address and B knew this perfectly well. This ground of appeal was rejected. (2) Section 5 contained no requirement that the particulars of offence should be recited. The actual order was one which the judge had jurisdiction to make under s.2. A mistake by an officer of the court when reciting the particulars of the offence could not invalidate the actual order. (3) B was justified in complaining about the level of the sentence. He should have been given full credit for his guilty plea. However, it could not be shown that the judge had sentenced him on the basis of a s.4 offence. Therefore, the appropriate sentence was three months' imprisonment. (4) The Convention was not in force domestically on either 25 February or 20 June 2000 and so this was not a ground of appeal. However, having regard to the circumstances of this case, in that B was making C's life intolerable and that B had ignored an earlier caution and continued to harass C, the restraining order had not been wrong. (5) The judge's refusal to vary the restraining order on 20 June 2000 could not be successfully challenged as the judge's exercise of sentencing powers based on the facts was not outside the permissible range. (6) A sentence of 15 months' imprisonment was excessive as it was a single breach of the order which arose from a plea under s.2. A sentence of nine months' imprisonment would have been sufficient. (7) The order made on 6 October 2000 should be set aside as it meant that there were two restraining orders running at the same time on identical terms. (8) Accordingly, the sentence of six months' imprisonment on 25 February 2000 was quashed and substituted with three months' imprisonment. The sentence of fifteen months' imprisonment on 6 October 2000 was quashed and substituted with nine months' imprisonment. B's conviction on 14 June 2002 was quashed and the sentence imposed on 6 August 2002 was set aside.Appeal against conviction and sentence allowed to the extent indicated.

[2003] EWCA Crim 2198

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