Kapotra v R. [2011] EWCA Crim 1843

[2011] EWCA Crim 1843Case No 201100815 A4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOLWICH CROWN COURT
H.H. Judge Byers
T20100699
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/07/2011
Before
LORD JUSTICE LEVESONMR JUSTICE GRIFFITH WILLIAMSMRS JUSTICE NICOLA DAVIES
Between
DAVINDER KAPOTRAAppellantTHE QUEENRespondent
Mr Lee Sergent (instructed by GT Stewart Solicitors) for AppellantMs Shamini Jayanathan (instructed by Crown Prosecution Service) for RespondentHearing Hearing date: 1 July 2011
Judgment
[1]On 20 January 2011 in the Crown Court at Woolwich at a Plea and Case Management hearing, not guilty verdicts were entered against the appellant in respect of an indictment containing two counts: i) Count 1 – Sexual assault upon a female; ii) Count 2 – Common assault[2]The complainant in respect of each alleged assault was Poonam Kaved. Following the decision of the Crown to offer no evidence and the entering of not guilty verdicts, H.H. Judge Byers, imposed a restraining order pursuant to section 5A Protection from Harassment Act 1997 (“the 1997 Act”) preventing the appellant from contacting Jayoti Kapotra and Poonam Kaved. The appellant appeals against the imposition of the restraining order with leave of the single judge.[3]Jayoti Kapotra is the estranged wife of the appellant, she currently lives in what was the matrimonial home. Poonam Kaved is the sister of Mrs Kapotra. Ms Poonam gave a statement to the police regarding the events of 1 October 2010. She alleged that on that date the appellant came to the home, kicked at the door and punched at the living room window. He was invited into the home by Mrs Kapotra. There came a time when the appellant and Mrs Kapotra were in her bedroom, Ms Poonam was called by her sister. When she entered the room she saw the appellant trying to lift her sister’s nightdress, her sister was resisting, the appellant informed Ms Poonam that he was going to have sex with her sister. Thereafter he held Ms Poonam by both cheeks and kissed her. Mrs Kapotra pushed the appellant away and the parties separated. An argument ensued and the police were called by the appellant. When the police arrived, they arrested Mrs Kapotra due to injuries seen upon the appellant, which he said were the result of an assault by Mrs Kapotra. Cross-allegations were made by Ms Poonam and Mrs Kapotra which led to the appellant’s arrest on 29 October 2010. Mrs Kapotra has not made a statement regarding the events on 1 October 2010.[4]At the hearing on 20 January 2011, following the entering of not guilty verdicts, the judge raised the issue of imposing a bindover upon the appellant. Counsel for the appellant moved to the back of the court in order to take instructions from the appellant. When he was so occupied, the judge raised with prosecution counsel the imposition of a restraining order. When the appellant’s counsel returned to his place in court, the judge appears to have decided to pursue the matter of a restraining order. Both parties were given an opportunity to make submissions. As these events took place without prior notice in the middle of a busy list, a limited amount of time was taken.[5]The evidence before the court was the written statement of Ms Poonam. The judge was informed of a caution recorded against the appellant in 2005 which related to an assault upon Mrs Kapotra. No details were provided. Further, prosecution counsel informed the judge that there had been three earlier allegations made by the complainant which she had not pursued due to fear. No evidence was put before the court to substantiate this information.[6]In sentencing the appellant,

the judge stated:

“Upon the Crown offering no evidence, I will order that not guilty verdicts be entered in this case. However, I am concerned in relation to the complainants in this case. I believe that there are good reasons, therefore, and I do, for making a restraining order prohibiting you, or restraining you, from contacting Jayoti Kapotra and Poonam Kaved….”
[7]On behalf of the appellant, it is conceded that the judge had power to impose a restraining order pursuant to section 5A of the 1997 Act. It is submitted that there was insufficient evidence to satisfy the court that it was necessary to impose a restraining order to protect Mrs Kapotra or Ms Poonam. Accordingly, the imposition of the restraining order was wrong in principle.

Law

[8]Section 5A Protection from Harassment Act 1997 states:
“5A(1) A court before which a person (the defendant) is acquitted of an offence, may if it considers it necessary to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order.”
[9]Part 50 of the Criminal Procedure Rules 2010 (S.I.2010 No.60) states:
“50.1.(1) This Part applies in magistrates courts and in the Crown Court where the court could decide to make, vary or revoke a civil order (a) under a power that the court can exercise after reaching a verdict or making a finding; and (b) that requires someone to do, or not do, something. (2) A reference to a ‘behaviour order’ in this Part is a reference to any such order. (3) A reference to ‘hearsay evidence’ in this Part is a reference to evidence consisting of hearsay within the meaning of section 1(2) of the Civil Evidence Act 1995. 50.2. (1) The court must not make a behaviour order unless the person to whom it is directed has had an opportunity (a) to consider what order is proposed and why; and (b) to make representations at a hearing (whether or not that person in fact attends). 50.4. (1) This rule applies where the court indicates that it may make on its own initiative… (b) a restraining order; (2) A party who wants the court to take account of any particular evidence before making that decision must (a) serve notice in writing on (i) the court officer and (ii) every other party, as soon as practicable (without waiting for the verdict); (b) in that notice identify the evidence and attach any witness statement that has not already been served. 50.6. (1) A party who wants to introduce hearsay evidence must (a) serve notice in writing on (i) the court officer, and (ii) every other party directly affected; and (b) in that notice (i) explain that it is a notice of hearsay evidence, (ii) identify that evidence, (iii) identify the person who made the statement which is hearsay, or explain why if that person is not identified, and (iv) explain why that person will not be called to give oral evidence (2) A party may serve one notice under this rule in respect of more than one statement and more than one witness.” 50.7 provides for the cross-examination of the maker of the hearsay statement. 50.9 The court may (a) shorten a time limit or extend it (even after it was expired); (b) allow a notice or application to be given in a different form, or presented orally.”
[10]The only evidence before the sentencing court being the statement of Ms Poonam, it is the appellant’s case that there was no evidence before the judge as to the background between the appellant and Mrs Kapotra, in particular, no evidence as to why she had not provided a statement for the court. As we understand the matter, the fact that previous allegations had been made but not pursued by her was not proved by evidence but was asserted (doubtless with the best of intentions) by the prosecutor. In the absence of evidence and any relevant detail, an assertion by counsel should not have led the judge to infer that the reason was fear. The judge failed to give any consideration to the possibility that the allegations relating to Mrs Kapotra were fabricated. Specifically, in the context of this case, made in order to extricate Mrs Kapotra from the allegation that she faced of assaulting the appellant. The caution took place 5 ½ years prior to the hearing, no evidence was before the court as to its facts. As to Ms Poonam, her statement related to one incident in which she became embroiled because she happened to be present in the house. There was no evidence that she was in any danger of being harassed by the appellant.[11]It is not disputed by the Crown that the only evidence before the judge was the statement of Ms Poonam. It was submitted that the absence of evidence from Mrs Kapotra is not unusual in a case of domestic violence. Nor is it unusual for such victims to fail to attend court by reason of fear or intimidation. It is clear from the statement of Ms Poonam that violence by the appellant was anticipated when she saw him kicking the door and punching the window. Reliance was placed upon the 2005 caution. It is the Crown’s case that there was sufficient evidence to satisfy the court that it was necessary to impose the restraining order.[12]The imposition of a restraining order is a serious matter. Sections 5(5) and 5(6) of the 1997 Act provide:
“5(5) If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence. 5(6) A person guilty of an offence under this section is liable (a) on conviction on indictment to imprisonment for a term not exceeding five years, or a fine, or both, or (b) on summary conviction, the imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.”
At the hearing no consideration appears to have been given to the provisions of section 5A of the 1997 Act or to the provisions of the Criminal Procedure Rules 2010. The serious nature of such an order is underpinned by the provisions of Part 50 of the Criminal Procedure Rules 2010 which identify the steps which have to be taken in order to ensure that any person to whom any such order is directed is given a proper opportunity to understand what is proposed and why and to make representations at a hearing.[13]The judge, on his own initiative, having indicated that he was considering making a restraining order, in our judgment, should have considered adjourning the hearing in order for the following procedural requirements to be met: i) The prosecution and/or the appellant in compliance with Rule 50.4.(2) should have served notice in writing on the court officer and every other party identifying any evidence it wished the court to take account of, attaching to the notice any written statement which had not already been served. ii) If any party sought to introduce hearsay evidence, it had to do so in compliance with Rule 50.6. by serving a notice in writing as required by 50.6.(1)(a)(b). iii) Any party seeking the court’s permission to cross-examine the maker of a hearsay statement had to comply with the procedural provisions of Rule 50.7.[14]Even if he was minded to exercise the discretion open to him under Rule 50.9, that judgment itself had to bear in mind the fundamental principle underlying these rules namely that any person faced with the possible imposition of a restraining order should be given proper notice of what is sought, the evidential basis for the application and, in addition, be allowed a proper opportunity to address the evidence and make informed representations as to the appropriateness of such an order. Thus, if the trial judge contemplates making such an order in relation to a defendant immediately following a trial (whatever the result of that trial), provided his or her representative has had the opportunity specifically to address all relevant issues, then consideration can properly be given to exercising the discretion contained in Rule 50.9. Where, as here, no evidence has been offered and there is no established evidential basis for the order, different considerations apply.[15]In this case, no procedural steps were taken either before or after the Crown offered no evidence and such limited evidence as was before the court could not provide a sound evidential basis upon which to make the restraining order which is the subject of this appeal; neither is it apparent that the judge addressed his mind to these issues.[16]Accordingly, the appeal is allowed and the restraining order is quashed.

Cited in 2 later judgments