Mr M. S. Parnell
Date 29th November 2010
Dear Mr Simon E Morton
Re: instructions for application to discharge s5 PHA 1997
Following procedures in court I feel that it is required that I forward my concerns and give you my instructions by the way of this letter and in quoting the laws, regulations and guidance, which in being given and to my understanding as to why I wish to follow in the interest of justice, that in to my justice to be heard and be given chance to a full account of the facts.
Section 5(4) of the PHA 1997 permits the prosecutor, defendant or any other person mentioned in the section 5 or 5A orders to apply to the original court for the order to be varied or discharged. Section 12(4) of the DVCVA 2004 inserts a new section 5(7) into the PHA 1997, which permits the court to vary or discharge the section 5 order when it deals with a person for the offence of breach of the order.
My instructions to you are, that you act at my request and apply to the court with an application to discharge the Restraining Order pursuant to Section 5 Protection from Harassment Act 1997, being that in my understanding the section 5 restraining order was wrongly imposed, a section 5 is different from a section 5A in that one is on conviction and the other is following acquittal and in all the guidance available for my viewing these two sections following amendment by section 12 DVCVA 2004 are separate in that there are questions of conviction or acquittal, Section 12 of the DVCVA 2004 amends section 5 of the PHA 1997 to allow the court to make a restraining order following a conviction now for any criminal offence, where the conviction occurs after 30 September 2009 (Schedule 12, paragraph 5 of the DVCVA 2004 provides that section 12 amends the section 5 and also adds a new section 5A and applies to conviction or acquittal that occurs after the commencement date.) It follows that the section 5 or 5A restraining orders can be made when the date upon which the offence was committed is prior to 30 September 2009, this is an appeal after that date appealing conviction before commencement date and overturns the judgement of 10thJuly 2009, appeal conviction and acquitted when is start date.
What does this mean for me, my now overturned conviction of the 10th July 2009 to the alleged common assault on the 22nd October 2008 with the submitted appeal July 2009 is prior to the 30th September 2009 and in allowing the successful appeal on the 15th January 2010 of the alleged offence, therefore could not carry a section 5 PHA 1997 restraining order which are imposed on conviction, If on conviction 10th July 2009 I did not receive the s2 or s4 PHA order, then why is it that on the 15th January 2010 following the successful appeal could a section 5 PHA 1997 on conviction be imposed, technically only a Section 5A(1) Protection from Harassment Act 1997 as inserted by section 12(5) Domestic Violence, Crime and Victims Act 2004 could be, and that is only after the commencement date if the court finds it necessary to do so.
Why is it that I am requesting an application to discharge a section 5 PHA 1997, it is being sort so that I will correctly be dealt with, in accordance to set procedures and correct sections that are set out within the current laws.
Laws are made to protect and if they are not enforced in the correct way then they only serve to destroy their own purpose, I wish to uphold the law and respect everyone’s views of their judgements to the facts they are given, a charge of a breach of an order that has not been correctly imposed must not be allowed because it is wrong in law, something that is wrong in law should not pursue a course of justice just for conclusion it can only serve to damage common law of what is right or wrong.
My belief is that I have not breached the order just because I thought it was wrong, if I did breach any order it was by reasonable excuse, and if the order was enforced in the correct way then the order and arrest would have been made to a section 5A(1) PHA 1997 as amended by section 12(5) DVCVA 2004 and the charge would have been under those laws and the correct sections, the charge in court for breach of the section 5 is incorrect, the CPS have never produced the restraining order, I should only be prosecuted as to the correct law and section.
Section 12 DVCVA 2004 introduced a new section 5A into the PHA 1997, which will allow the court to make a restraining order after acquitting a defendant of any offence if the court considers it necessary to do so to protect a person from harassment by the defendant. Unlike restraining orders on conviction, there is no power to protect a person from fear of violence that falls short of harassment where the defendant has been acquitted.
The elements of the offence of harassment in section 2 PHA 1997 are:
- a course of conduct;
- which amounts to harassment of another;
- which the defendant knows, or ought to know, amounts to harassment.
Harassment is not defined in the PHA 1997, except that it includes causing a person alarm or distress.
Section 5A only applies where there has been an acquittal.
DVCVA 2004 section 12(5) inserts Section 5A(1) A court before which a person ( “the defendant”) is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant), how does this effect me with the serving of an restraining order, who needs protection, have they ever been put at risk and has any other person been caused any alarm or distress, I put it that the question is, one named person on the incorrect order as stated prior to the order being applied no longer works for the council the other named person then had other duties that keeps him away from stopford house, has any other person been caused alarm or distress, I put it no this has not ever been the question, how I have ever behaved, but just that I was there. The test to be applied by the court is whether the order is necessary to protect the persons named in it from harassment. This necessitates an evaluation by the court of the evidence before it. It will require the court to determine whether there is sufficient evidence in front of it to enable it to form a view that an order is necessary.
The 2004 Act does not specify the standard of proof to be applied by the courts. Nor is there any reference within the legislation to the defendants previous or future behaviour. Rather, the court is told to have in mind the question of whether the victim or person to be named in the order requires protection from harassment. Before making an order, the court will have to be satisfied that it is necessary to do so.
What do I want by the discharging of the section 5 PHA 1997 that the application of the correct order of a section 5A(1) PHA 1997 be applied for, and by following the correct procedure if it is shown to be required to do so for the protection of a person from harassment by a defendant, on application of the correct order, section 5A (2) as to subsection (3) to (7) of section 5 PHA 1997, and with applying subsection (4A) of said act, Any person mentioned in the order is entitled to be heard on the hearing of an application under subsection (4).
On conclusion what is it that I want you to do, and that this is made at my request with the full understanding that I take full responsibility of any outcome, my instructions are
I Michael Stewart Parnell do request to instruct you Mr Simon E Morton to make application to Manchester Crown Court at Minshull Street, to discharge the restraining order made 15th January 2010, section 5 PHA 1997 on the basis that I believe it was made on the grounds as to the wrong section and the correctness of the order and procedure had not been followed when it was made.
I also request that you inform the court that the section 5 PHA 1997 on conviction should technically be a section 5A PHA 1997 on acquittal and that an application for the correct order will be met with my defence is it necessary to do so, The purpose of a restraining orders are preventative, not punitive – it is a measure designed to protect someone from harassment. Before making an order the court will have to be satisfied that it is necessary to do so, this I believe requires evidence and Prosecutors should follow the rules of civil evidence in order to adduce further evidence to enable the court to determine whether to make a restraining order. The procedural rules for making applications are set out in Part 50 of the Criminal Procedure Rules 2005. These apply in both the magistrates court and Crown Court. These procedural rules are the same as those relied upon for applications for post-conviction.
And finally could you look at and advise me, of that which I believe is a technicality in law, how did I receive an order to the wrong section, how did that order produce an arrest and that following the police investigation still not showing to be wrong in law to the correct section, arrested on the day for breach of ASBO then two days later changed to a section 5 PHA 1997 and then prosecuted under a wrongly applied order as submitted by the police to the CPS and then presented to the court for prosecution, who professionally knows what they are doing, where is the CPS order and which section is it for, well on acquittal it should be section 5A(1) PHA 1997 and not an order made on conviction by amendment to section 5 PHA 1997 by Section 12 Domestic Violence, Crime and Victims Act 2004 (in force from 30 September 2009) Section 12 DVCVA 2004 introduced the new section 5A into the PHA 1997, this by my mind is I could not be given section 5 by conviction, only section 5A can be given on acquittal, which is it? “convicted innocent or guilty until proven”.
Yours sincerely ……………………………….M S Parnell esq.
Date ……………………………… 29th November 2010
