DPP v Stephenson 2025
A District Judge made an NMO (non-molestation order) prohibiting S from being present at a road on which a named child's school was located during certain hours. The terms of the NMO were outlined at the court hearing and included in the written judgment, which was provided to S.
The NMO was personally served on S after he had engaged in the prohibited conduct. S was prosecuted for breaching the NMO contrary to section 42A of the Family Law Act 1996.
At trial, the Magistrates ruled there was no case to answer because S had not been served with the NMO as required by the Family Procedure Rules.
The prosecution argued that lack of service did not prevent the NMO from being legally effective for the purposes of the section 42A offence.
The defence contended that service was a prerequisite for the NMO to be effective and the section 42A offence could not be made out without proper service.
Held
Appeal allowed.
The court analysed the primary legislation, the Family Law Act 1996, and the relevant rules, particularly FPR 29.15 which states that an order takes effect from the day it is made unless a later date is specified. The court found that nothing in the Act or Rules suggests an NMO is not effective until service takes place. Further, Parliament clearly intended the NMO to become effective, in accordance with its terms, when made. However, criminal liability was subject to a specific unawareness shield (section 42A(2)) and a general “reasonable excuse” defence (section 42A(1)).
The court distinguished civil contempt proceedings, where service may be required for enforcement. The court concluded that the Magistrates was not entitled to find that there was no case to answer on the basis that the section 42A offence could not be made out.
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.
