R v Selvage 2025
S1 and S2 were married in August 2013, separated in March 2021, and subsequently divorced. They have two sons aged 8 and 10.
On 29 March 2023, Essex Magistrates' Court made a restraining order prohibiting S1 from contacting S2 "directly or indirectly" except "via solicitors, Social Services, or the Family Court in relation to child contact/the division of their matrimonial assets".
During the restraining order's duration, S1 sent several text messages to S2's phone regarding child contact and other matters.
S2 had changed her phone and only discovered the messages on 7 September 2024 when she switched on her old phone, after which she reported the matter to police.
In police interview, S1 admitted sending the messages and being aware of the restraining order's terms. S1 explained that he had been receiving regular phone calls from his sons until December 2023, when the calls stopped without explanation. S1 claimed he sent the messages out of concern for his children's welfare and to re-establish telephone contact with them.
S1 was charged with one count of breaching a restraining order contrary to section 363 of the Sentencing Act 2020, relating to messages sent in early September 2024.
At trial, S1 admitted being subject to the restraining order and sending the communications, but claimed he had a "reasonable excuse" due to his concern for his children.
On 17 February 2025, he was convicted in the Crown Court at Chelmsford.
The case came to the Court of Appeal on the ground that the trial judge misdirected the jury as to the burden and standard of proof applicable when the defence of reasonable excuse is raised. S1 contended that his conviction was unsafe as a result of this misdirection.
Held
Appeal allowed.
The Court of Appeal allowed the appeal and quashed the conviction. The Court found that the trial judge had misdirected the jury on the burden and standard of proof regarding the "reasonable excuse" defence. The judge erroneously instructed that S1 bore the burden of proving reasonable excuse on the balance of probabilities, whereas established case law requires the prosecution to prove beyond reasonable doubt that no reasonable excuse existed once S1 has raised the issue evidentially.
Despite the prosecution's argument that the conviction remained safe, the Court held that this legal error rendered the conviction unsafe and ordered a retrial on the single count of breach of a restraining order, directing that a fresh indictment be served within 28 days and that S1 be re-arraigned within 2 months. The venue for the retrial would be determined by the presiding judge for the South Eastern circuit. The Court imposed bail conditions mirroring the original restraining order terms, prohibiting S1 from contacting S2 directly but permitting indirect contact via solicitors, Social Services, or the Family Court regarding child contact or division of matrimonial assets.
Additionally, the Court remitted the case to the Crown Court to consider whether to make a restraining order on acquittal under section 5A of the Protection from Harassment Act 1997.
Reproduced with permission of Reed Elsevier (UK) Limited, trading as LexisNexis.
View the full case document here, with links to related legislation and similar cases.
