On 1st October 2013 Keith Brooks, the former Mayor of Cleethorpes, was acquitted of Outraging Public Decency at Grimbsy Crown Court. He was, however, given a Restraining Order that banned him from sunbathing naked in his garden for the next five years.
Why was he acquitted?
He was accused of ‘performing a sex act in front of children’ that was charged as an offence of Outraging Public Decency (we seem to covered that a lot recently – here, here and here). It seems that the prosecution had not put “evidence of any sex act having taken place” before the Court.
It is not clear whether this was at a pre-trial hearing or at a full trial. Either way, without any evidence of that, it is likely that a jury would not convict someone for merely being naked.
Unlike the quashing of an indictment (see this post from yesterday) this is a ‘full’ Not Guilty verdict. Whether it was given by a Judge or a Jury doesn’t matter – Mr Brooks cannot be tried for that offence again.
If he was innocent, why was a Restraining Order made?
This has (understandably) vexed some people. If he was found not guilty, and is therefore innocent, why should he have any ‘penalty’?
A Restraining Order is not a penalty (although breaching it is a criminal offence – an either way offence, so triable in either the Mags or the Crown Court – with a maximum sentence of 5 years). The power to make one is contained in s5A Protection from Harassment Act 1997 (actually slipped in by s12 Domestic Violence, Crime and Victims Act 2004).
This says that a Court “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.” Although it refers to a ‘person’ singular, it can be for a group of people (here, it may be ‘anyone who can see into Mr Brooks’ garden’ for example).
The CPS have guidance as to what sort of cases would be appropriate for an application on an acquittal, which is always worth reading (even if the CPS don’t always follow their own policy on these points).
The Court of Appeal have looked at this issue several times. It is important that a defendant has a proper opportunity to state why the order is not ‘necessary’ and that they have proper notice of an application and it’s not just sprung on them on the day (K  EWCA Crim 1843)
Interestingly, it would appear that an order can be made against a company. In R v Buxton and Others  EWCA Crim 2923 the court said ‘we have heard nothing to persuade us that a section 5 order cannot go against a company‘.
The ‘burden of proof’ is on the civil standard. This means that the prosecution (who apply for the order) have to show the Court that it was more likely than not that an order was necessary. Although this normally involves showing that the Defendant has in fact previously caused harassment to the ‘victims’, this is not necessary (Major  EWCA Crim 3016).
And when the law says ‘necessary’, it does actually mean necessary, not desirable or helpful. There has to be potential victim(s) identified that could be caused harassment (Smith  EWCA Crim 2566).
As to why the order was deemed to be necessary, we don’t have sufficient information to really assess whether we think it was correct or not, but on the face of it, it is hard to see how sunbathing naked, in a garden, would cause harassment to anyone (but there may be facts that we are unaware of).