REX v NEIL WEBB-JOHNSON [2025] EWCA Crim 1084

IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM
(HIS HONOUR JUDGE ANDREW SMITH KC) [T20200703]
[2025] EWCA Crim 1084Case No Case No 2024/03678A4Venue Royal Courts of Justice, The Strand, London, WC2A 2LL
Between
REXNEIL WEBB-JOHNSON
Before
The Vice-President of the Court ofLord Justice HolroydeMr Justice GossMrs Justice Cheema-GrubbMr S Skinner KC appeared on behalf of the AppellantMr B McElduff appeared on behalf of the CrownDate 20 May 2025

LORD JUSTICE HOLROYDE:

This

[1]appellant was charged with an offence of stalking involving serious alarm or distress, contrary to section 4A of the Protection from Harassment Act 1997. The offence was alleged to have been committed between 5 January and 24 August 2018 by the appellant sending emails and letters to Simon and Vikki Cooke, to whom we shall refer for convenience as "the Cookes". The appellant denied the allegation.[2]On 16 September 2024, at a hearing before His Honour Judge Andrew Smith KC in the Crown Court at Birmingham, the prosecution offered no evidence, and the judge directed that a not guilty verdict be entered. With the consent of the appellant a restraining order was then made for a period of three years.[3]By limited leave of the single judge, the appellant now appeals against the making of that order.[4]The papers read by the court show a lengthy history of incidents and allegations involving the appellant and the Cookes. However, the issue before this court is a narrow one. It is therefore sufficient for present purposes to summarise only the principal facts relevant to that issue.[5]Mr and Mrs Cooke operated a tattooing business from premises adjacent to a property owned and occupied by the appellant's fiancée. In 2015 the Cookes accused the appellant of harassing them. He was arrested and charged with that offence and bailed to appear before a magistrates' court on 27 August 2015.[6]On 21 August 2015, however, the CPS served notice of discontinuation of the proceedings. The appellant applied to the court to revive the proceedings so that he could be acquitted of the charge. That was done on 20 October 2015.[7]On 4 January 2018, the appellant sent a letter before action to the Cookes and to the landlords of their premises, indicating an intended civil claim for damages for malicious prosecution.[8]In July 2018, the appellant wrote to the Cookes notifying them that he had issued civil proceedings against them. We have seen no evidence of any contact between the appellant and the Cookes after that date.[9]On 25 August 2018, the appellant was arrested on suspicion of stalking the Cookes. As we understand it, he was released under investigation and was not subject to any bail. It was not until 15 January 2020 that a postal requisition was issued alleging that offence. The appellant was thereafter on unconditional bail throughout those proceedings until September 2024.[10]In mid-January 2021 the Cookes each made a witness statement in connection with the allegation of stalking. Neither statement referred to a restraining order or expressed a need for the protection of such an order.[11]In March 2021, and again in August 2024, the CPS informed the appellant's legal representatives that they would be prepared to offer no evidence against him on the stalking charge if he would agree to the making of a restraining order. The appellant declined that proposal on both occasions. It does not appear that any statement was taken from either of the Cookes, at either of those times, indicating why a restraining order was necessary.[12]The appellant applied to dismiss the charge against him. Arraignment was therefore postponed. A hearing was fixed for 16 September 2024 to determine that application and, if it were refused, to proceed with the trial.[13]The prosecution were alerted to difficulties in securing the attendance of the Cookes. In August 2024 the CPS applied for witness summonses against them. It appears that the summonses were issued but not enforced. By the time of the hearing on 16 September 2024, as we understand it, Mr Cooke was willing to attend court, albeit reluctant to do so, but Mrs Cooke had declared herself unable to do so. The CPS did not propose to compel her attendance.[14]At the hearing on 16 September 2024, Mr McElduff, then as now appearing for the prosecution, informed the court that the prosecution proposed to offer no evidence, contingent on the appellant agreeing to a restraining order in the terms of a draft which had been uploaded to the DCS. Mr McElduff referred to a notice of intention to apply for that order – drafted, as we understand it, earlier that morning – which said:
"1. This is a notice drafted to comply with the requirements of Criminal Procedure Rule 31.3. The Crown propose a restraining order on acquittal. 2. The material facts and the evidence relied upon in support of such an order are as set out within the served evidence in the case. 3. The order sought is as follows: Neil Webb-Johnson is prohibited from contacting Simon and/or Vikki Cooke directly or indirectly, save via a practising solicitor instructed by him. 4. The Crown invite the court to make the order for a period of three years."
[15]The appellant was arraigned on the charge and pleaded not guilty. Mr McElduff confirmed that the prosecution intended to offer no evidence. He said that that decision had been made in consultation with the complainants, one of whom had indicated that she would not come to court and the other of whom was extremely reluctant. Mr McElduff continued:
"Ultimately, they wish simply for there to be something in place for a period of time to protect them, and given the indication that such an application for an order, should it be made, would not be opposed, if it followed the offering of no evidence, that is the course we take, in the public interest, and invite your Honour to enter a not guilty verdict, pursuant to section 17 of the Prosecution of Offences Act."
[16]The judge indicated his approval of that course, which he was satisfied had been decided upon after a proper review of the case. He stated, correctly, that he had to be satisfied to the civil standard of the facts which gave rise to the necessity for the making of the proposed restraining order. Mr McElduff confirmed that the prosecution relied on the written evidence of the Cookes and on their ongoing expression of the position at they saw it. Leading counsel who then represented the appellant commended the draft order and confirmed that "to the extent that it matters" it was agreed at the Bar. He pointed out that the appellant, then aged 71, was a man of previous good character.

The judge then gave a short ruling in which he said:

"I recognise that whether or not a restraining order should be imposed is a matter for me to determine alone. However, I do not overlook the careful, measured submissions of experienced counsel on both sides. Taking, in short, the matters relevant to my making a restraining order post acquittal in turn, I am satisfied, upon a careful review of the available material in this case, and the submissions of counsel, that it is necessary for such an order to be made. That reflects the written evidence of Simon Cooke and Vikki Cooke, together with the expressions, which I accept, of both of those individuals as to the residual fears that they hold in respect of contact from Mr Webb-Johnson. I am satisfied, for those reasons, that the necessity is established, and to repeat, no submission is made that that test is not satisfied, quite the contrary. I have had regard, as well as necessity, to whether or not the order is proportionate. I consider that it is. The order is in narrow terms readily understandable to Mr Webb-Johnson or any other interested party, and the duration sought is of three years, which I do consider to be proportionate, having regard to the fact that the allegations in this case stem back to the period 2017 to 2018, and many years have elapsed since the last allegation that formed part of the content of the indictment before the court. Drawing those threads together, I am satisfied that the order is both necessary and proportionate, and will impose it on the basis sought, for a period of three years."
[18]The appellant gave notice of appeal against the making of the restraining order. He put forward three grounds of appeal. The single judge gave leave only on a ground which referred to the decision of this court in R v Buckley [2023] EWCA Crim 84, and was in the following terms:
"The judge failed to consider whether there is a significant risk of harassment by the appellant in the future, having regard to the time which has elapsed since the appellant's alleged conduct and in the absence of further complaint."
[19]No application has been made to renew the grounds on which leave was refused by the single judge, and we need say nothing about them.[20]Section 5A(1) of the Protection from Harassment Act 1997 provides:
"A court before which a person … is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order."
[21]In R v McCarren [2023] EWCA Crim 1233 , at [25], Stuart-Smith LJ referred to earlier case law, including the leading cases of R v Major [2010] EWCA Crim 3016 and R v Baldwin [2021] EWCA Crim 703 , and gave the following helpful summary of the principles to be applied when considering the exercising of the power to make an order under section 5A:
"The principles to be applied are clear and well established by consistent decisions of this court [decisions listed]. It is not necessary to embark on a comprehensive re-statement of these principles as that has been done more than once before. The leading cases are Major and Baldwin , which should be familiar to anyone involved with a prospective restraining order after acquittal. For present purposes, it is sufficient to re-state the following: (1) The first and most important criterion for making an order under section 5A(1) is that the court must consider it to be necessary to do so to protect a person from harassment by the defendant. [our emphasis] (2) Section 5A addresses a future risk. The evidential basis for such an assessment is the conduct of the defendant: see Major at [16]. (3) The prosecutor seeking a section 5A order must serve a notice of intention to apply which summarises the relevant facts, identifies the evidence on which the prosecutor relies in support, attaches any written statement that the prosecutor has not already served, and specifies the order that the prosecutor wishes the court to make: see Criminal Procedure Rules 31(3) and Baldwin at [32]. (4) The factual basis for making an order does not have to be uncontested. In the event of dispute, the civil burden of proof applies: see Major at [15]. (5) If the prosecutor intends to rely on hearsay, the prosecutor should serve hearsay notices: see Baldwin at [36]. (6) A judge is required to identify the factual basis for imposing an order. That includes identifying in the judgment the evidence justifying the necessity for making the order and means giving reasons with sufficient clarity to identify the factual basis upon which the judge is acting: see Major at [17] to [20] and Baldwin at [40] and [44]. This last principle is not obviated by the existence of consent, although the court may rely upon the consent as part of its consideration of the case in hand."
[22]Mr Skinner KC, now representing the appellant, submits that the judge fell into error by not fully applying the test of necessity. In summary his arguments are:(a) The notice of intention to apply did not identify the factual basis of the order, the relevant evidence or the reasons for imposing it;(b) Although Mr McElduff informed the judge that the Cookes wanted a restraining order, there was no witness statement from either complainant to that effect and no hearsay notice had been served;(c) On the issue of necessity, the prosecution merely said that the Cookes wanted a restraining order because of "residual fears". No submission was made about the fact that the last allegation against the appellant related to the letter sent in July 2018, more than six years earlier, and no submission was made as to why the proposed order was necessary. The judge was therefore not assisted, and he fell into error in failing to address those matters; and(d) In any event, even if the judge had been given more information, the test of necessity could not be satisfied. The last allegation was more than six years ago. "Residual fear" could not be a proper basis for making an order, even if there had been any evidence of it, and a proper analysis by the judge would have required consideration of the appellant's age, his mental health issues, his good character and his continuing denial of all the allegations made against him.[23]For the respondent, Mr McElduff submits that the judge correctly applied the test of necessity and gave reasons which, although brief, sufficiently identified the factual basis for making the order. He tells us today – and of course we accept from him – that the brief notice of application was drafted in that form after discussion with leading counsel then representing the appellant. Mr McElduff relies on R v Dennis [2014] EWCA Crim 2331, at [17], as showing that where the making of an order in the proposed terms is not opposed and the judge is satisfied on the evidence that an order in those terms is necessary, then detailed findings are not necessary:
"In these circumstances an acknowledgement that, on the facts disclosed either during the trial or on the served papers and with the consent of the defendant, who has been afforded the opportunity to call evidence or make representations and does not seek to challenge a finding that a restraining order in the agreed terms is necessary, is sufficient."
[24]Mr McElduff submits that the brevity of the hearing in this case reflects the reality of this criminal litigation, and that it was unnecessary for the judge to provide more detailed reasoning when the order was agreed.[25]As to the passage of time since the last alleged act of stalking, Mr McElduff submits that the overall history of issues between the Cookes and the appellant shows that the appellant ceased from offending activity when subject to bail, but resumed such conduct after the first set of proceedings had been concluded and before the second set of proceedings had begun. Mr McElduff submits that the judge was therefore entitled to conclude that a restraining order was necessary because of the risk posed by the appellant when he was no longer subject to the deterrent effect of being on bail. In support of his argument, Mr McElduff invites the court's attention to a statement dated 30 April 2025 by the officer in the case, DC Coomer, in which he said that the Cookes had expressed to him the view that their experience of being harassed had only stopped because the appellant was on bail, and would start again when he was no longer prohibited from contacting them.[26]Mr Skinner for his part opposes any reliance by this court on that witness statement, which was not before the judge below and in respect of which no hearsay notice has been served.[27]We are grateful to both counsel for their admirably focused submissions. Reflecting on those submissions, we have reached the following conclusions.[28]The issue which lies at the heart of this appeal can be stated briefly. Was there evidence which the judge could properly accept as establishing to the civil standard the necessity for making a restraining order?[29]To that question there is a short answer: No.[30]We say that for the following reasons.[31]First, we accept the respondent's submission that considerable weight should be given to the fact that the appellant, advised and represented by leading counsel, agreed to the making of the order in the brief and clear terms proposed. Nevertheless, as the judge rightly recognised, it was for him to decide whether it was proper to make that order. The agreement of a defendant cannot of itself provide evidence of necessity which is otherwise absent.[32]Secondly, we also accept the respondent's submission based on the principle which we have quoted from R v Dennis . We are very conscious of the pressures on judges and practitioners in the Crown Court, and we agree that time should not be spent unnecessarily in making a detailed examination and giving a detailed analysis of matters which are not in dispute. It must however be remembered that a restraining order does involve a significant curtailment of the liberty of the person subject to it. It must also be remembered that, by section 5A(2D) and (2E) of the 1997 Act, it is an offence punishable on indictment with a maximum of five years' imprisonment for a person subject to a restraining order to do, without reasonable excuse, anything which the order prohibits him from doing. It is therefore important that a judge who is asked to make a restraining order following acquittal is able to identify the evidence which shows such an order to be necessary.[33]Thirdly, it is also important to emphasise that the evidence relied on must be sufficient to show necessity, and not merely to show that the order is desirable from the complainant's point of view, or is seen by both sides as a convenient solution to disputed issues. In this case the notice of application was couched in broad terms which did not assist the judge to identify the relevant evidence. The judge, with respect to him, did not identify what were the "residual fears" of the Cookes, and so did not explain why those fears were sufficient to show necessity when there had been no allegation of offending conduct by the appellant for more than six years.[34]Fourthly, and critically, there was no evidence of any reason why a restraining order was said to be necessary. No evidence had been put before the judge to explain why, notwithstanding that no relevant conduct was alleged at any time in the last six years, the appellant could be expected to engage in offending conduct when no longer subject to bail. We reject the submission of the respondent that the necessity could be inferred from the overall history of the allegations made by the Cookes, even when combined with the appellant's agreement to the making of the order.[35]Given the passage of so many years without incident, and given that no previous statement by either of the Cookes had expressed any need for a restraining order, it was incumbent on the respondent either to obtain written statements from one or both of them as to why they said it as necessary in September 2024, or at the very least to adduce hearsay evidence in proper form of oral statements to that effect.[36]Lastly, the recent witness statement of DC Coomer clearly cannot assist the respondent. This is an appeal against the order made by the judge on the basis of the evidence before him, not an application to this court based on new evidence.[37]We therefore conclude, with respect to the judge, that the necessary evidential foundation for the making of an order had not been provided by the respondent and that the judge fell into error in making the order, notwithstanding that it was agreed by the appellant.[38]For those reasons we allow this appeal and we quash the restraining order.

Cited in 1 later judgment