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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Debnath, R. v  EWCA Crim 3472 (02 December 2005)
Cite as:  EWCA Crim 3472
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B e f o r e :
MR JUSTICE CRESSWELL
HIS HONOUR JUDGE GOLDSACK QC
| R E G I N A
Smith Bernal Wordwave Limited
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(Official Shorthand Writers to the Court)
MR J VARLEY appeared on behalf of the Crown
Crown Copyright ©
"I have taken into account the fact that you have served 23 weeks on remand, which is equivalent to virtually 12 months' prison sentence. The main point here is to see that this does not happen again and I intend to make a restraining order in certain terms that you are prohibited from contacting directly or indirectly the people named in the order."
"... the defendant is prohibited from (1) contacting directly or indirectly A, H and other persons named, and (2) publishing any information concerning A and H whether true or not."
"Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for the development of every man. It is applicable not only to information or ideas that are favourably received, but also to those that offend, shock or disturb the state or any sector of the population."
"(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 or victims 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.
"(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."
1. The purpose of a restraining order is to prohibit particular conduct with a view to protecting the victim or victims of the offence and preventing further offences under section 2 or 4 of the Act.
2. A restraining order must be drafted in clear and precise terms so there is no doubt as to what the defendant is prohibited from doing.
3. Orders should be framed in practical terms (for example it may be preferable to frame a restriction order by reference to specific roads or a specific address). A radius restriction will not necessarily invalidate an order. If necessary a map should be prepared; R v Robert Beck 28th July 2003 Mance LJ, paragraph 9.
4. In considering the terms and extent of a restraining order the court should have regard to considerations of proportionality, Beck supra at paragraph 13.
5. The power of the court to vary or discharge the order in question by a further order under section 5(4) is an important safeguard to defendants. The Court of Appeal Criminal Division is unlikely to interfere with the terms of a restraining order, if an application to the court which imposed the restraining order to vary or discharge was in the circumstances the appropriate course.
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
"2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"Any restriction upon free speech must pass three distinct tests: (a) it must be prescribed by law; (b) it must further a legitimate aim; and (c) the interference must be shown to be necessary in a democratic society."
"I have harassed Mr A. We had an one night stand in July 2001. Thereafter he has refused to associate with me. His email address is below".