BAIL VARIATION

The Defendant seeks variation of the present bail conditions so that they address the risks which the Court intends to control in clear and objectively ascertainable terms, while removing restrictions which are not necessary for that purpose.

In particular, the present order appears to record the protected persons in the form “Oliver BABBINGTON-WILSON, Heather AGATHER or SANCHEZ”. That wording is seriously ambiguous. “SANCHEZ” is understood by the Defendant to refer to Samuel (“Sam”) Cherny, and not to be an alternative surname or identity for Heather Agatha/Cherny. Any varied order should identify each protected person separately and by his or her correct full name.

The Defendant further seeks a precise definition of “direct” and “indirect” contact. This is particularly important because previous difficulties have arisen from uncertainty as to whether communication about a protected person, or communication with somebody associated with that person, amounts to “indirect contact”.

The proposed definition is intended to prohibit the thing which the no-contact condition is properly directed against: namely, the Defendant intentionally trying to make a protected person aware that the Defendant is saying, asking, requesting or otherwise communicating something to that protected person.

It is not intended to prohibit the Defendant from discussing a protected person with other people, publishing material concerning the proceedings, obtaining evidence, communicating with witnesses, or otherwise speaking about the subject matter of the case merely because the protected person may subsequently learn of what has been said.

The Defendant must not contact or attempt to contact the following persons, directly or indirectly:

1. Oliver Babington Wilson;
2. Heather Agatha, wife of Steven Cherny, mother of Samuel Cherny; and
3. Samuel (“Sam”) Cherny.

For the purposes of this condition, “contact” means intentionally causing, or intentionally attempting to cause, a protected person to become aware that the Defendant is communicating to that protected person any message, statement, question, request, information, signal or other communication.

“Direct contact” means the Defendant himself transmitting or attempting to transmit such a communication to a protected person, whether in person, by telephone, SMS, email, letter, social media, messaging service or otherwise.

“Indirect contact” means the Defendant intentionally asking, instructing, encouraging, arranging, procuring or causing another person or means to transmit or attempt to transmit a communication from the Defendant to a protected person.

“Attempted contact” includes taking a step intended to cause such a communication to reach a protected person whether or not the communication is in fact received, read, heard or otherwise perceived by that person.

For the avoidance of doubt, the following do not, without more, constitute direct or indirect contact:

1. speaking, writing or publishing about a protected person;
2. criticising a protected person or disputing that person’s account;
3. discussing these proceedings or the Defendant’s own factual account;
4. publishing records, correspondence or other material concerning a protected person, provided that the publication is not being used as a means of addressing a communication to that person;
5. communicating with another person merely because that person is a friend, relative, associate, witness or other person connected with a protected person;
6. asking another person to provide, preserve, identify, recover, verify or explain that person’s own evidence, information, recollection or opinion;
7. another person independently repeating, forwarding, showing or describing the Defendant’s words or publications to a protected person, where the Defendant did not ask, arrange, procure or intend that result as a means of communicating to the protected person;
8. publication to the public or to a group which a protected person may see or learn of, even where the Defendant knows or foresees that possibility, unless the Defendant intends thereby to communicate something to that protected person;
9. accidental or incidental presence in the same place as a protected person, provided that the Defendant does not intentionally approach or communicate with that person; or
10. communications properly made through solicitors, counsel, police, the court or another authorised professional for the proper conduct of these proceedings.

For the further avoidance of doubt:

1. “Tell Oliver that I love him” would constitute indirect contact;
2. “Tell Oliver that I want him to telephone me” would constitute indirect contact;
3. “Ask Oliver whether he deleted the messages, and tell him that I want an answer” would constitute indirect contact;
4. “What did Oliver say to you?” would not constitute contact with Oliver;
5. “Please give my solicitor your messages with Oliver” would not constitute contact with Oliver;
6. “Please tell my solicitor what Oliver told you” would not constitute contact with Oliver; and
7. criticism of Oliver communicated to Damien McMullen, the Cherny family, friends, the public or another third party would not constitute contact with Oliver merely because Oliver may ultimately become aware of it.

The distinction is therefore between communication to a protected person and communication about a protected person. Foreseeability that words may ultimately reach a protected person is not sufficient; the Defendant must intend the communicative result prohibited by paragraphs 7–10.

The Defendant’s own previous correspondence provides useful practical examples of the distinction.

An email addressed by the Defendant directly to Mr Babington-Wilson is plainly direct contact, whether or not Mr Babington-Wilson reads it. The Defendant accepts that the direct emails sent to Mr Babington-Wilson during 25–28 June fall within the conduct which a no-contact condition should prohibit.

By contrast, correspondence addressed to another person which discusses Mr Babington-Wilson, criticises him, sets out the Defendant’s account or seeks evidence concerning him is not thereby contact with Mr Babington-Wilson.

A request to Damien McMullen to recover his own communications with Mr Babington-Wilson and provide them to the defence would not constitute contact with Mr Babington-Wilson.

Nor would asking a third party what Mr Babington-Wilson had said, or asking that person to give an account to the Defendant’s solicitor.

Conversely, asking a third party to “tell Oliver that Sam says X” would constitute indirect contact, because the object is to cause Mr Babington-Wilson to become aware of a communication from the Defendant to him.

The same distinction applies to public publication. Publication of the proposition “Mr Babington-Wilson’s account is wrong for the following reasons” is communication about him. Publication of “Oliver, if you are reading this, please call me” is communication to him and would be prohibited.

A request such as “please make sure Oliver is all right” would depend upon its intended communicative result. If it is simply a request that a third party independently check Mr Babington-Wilson’s welfare, it is not contact. If it means “please tell Oliver that I am worried about him and want him to know that”, it is indirect contact.

This definition is intended to permit the Defendant to know in advance whether proposed conduct is lawful, rather than leaving arrest or alleged breach to depend upon whether information later happens to circulate through persons over whom the Defendant has no control.

The Defendant accordingly seeks the following variation of bail.

The Defendant shall reside and sleep each night at Osterode, Church Road, Chelmsford, CM3 3EJ.

The Defendant shall not directly or indirectly contact or attempt to contact the persons identified in paragraph 6, with “contact”, “direct contact”, “indirect contact” and “attempted contact” having the meanings set out above.

The Defendant shall not enter Upper Mall, London W6.

The Defendant may possess and use mobile telephones, computers and other internet-enabled devices and may access the internet, email, social media and messaging services without supervision, subject always to the no-contact condition.

The existing prohibitions upon possession of an internet-enabled device, unsupervised internet use, social-media access and email communication with persons merely “associated” with the complainant shall be discharged.

The present reporting requirement at Chelmsford Police Station shall continue.

The present GPS monitoring requirement may continue insofar as the Court considers it necessary for enforcement of the geographical exclusion condition.

If the trial listed for 21 October 2026 is adjourned, particularly if the adjournment results from prosecution non-compliance or late disclosure rather than any failure by the defence to prepare, the Defendant seeks the following further relaxation of bail.

The Defendant may reside and sleep at his own home address at [ADDRESS].

Subject to the no-contact condition concerning the three expressly named protected persons, the Defendant may communicate with any other person, including any friend, relative, associate, witness, potential witness or other person associated with the complainant or these proceedings.

Nothing in paragraph 33 permits the Defendant:

1. to use another person as an intermediary for prohibited contact;
2. to intimidate, threaten or improperly influence any witness;
3. to ask any person to give false evidence or suppress or alter evidence; or
4. otherwise to interfere improperly with the administration of justice.

For avoidance of doubt, asking a person to preserve, identify, obtain, verify, explain or provide evidence relevant to these proceedings is permitted and does not become indirect contact merely because that person has dealings with a protected person, provided that no communication from the Defendant to the protected person is conveyed.

The Defendant may possess and use mobile telephones, computers and internet-enabled devices and may use the internet, email, messaging services and social media without supervision, subject only to the no-contact condition and the ordinary law.

The Defendant shall not enter Upper Mall, London W6.

The Defendant invites the Court to discharge or materially reduce the reporting requirement and to discharge GPS electronic monitoring if the trial is adjourned for a substantial further period.

The Defendant respectfully submits that a bail condition carrying the possibility of arrest should be capable of being understood prospectively. A person should be able to determine, before acting, whether the proposed conduct falls inside or outside the prohibition.

The phrase “directly or indirectly” should therefore not be treated as meaning that any statement concerning a protected person becomes prohibited merely because it ultimately reaches that person.

The proposed definition instead supplies a single practical question:

If yes, the conduct is prohibited. If no, subsequent independent circulation of the Defendant’s words does not retrospectively convert them into contact.

Any dispute as to whether conduct falls within the foregoing definition should, so far as practicable, be determined by a magistrate possessing hair.

Before ruling, the magistrate should count slowly from 1 to 100, inserting the word “Mississippi” between each successive pair of numbers, thereby ensuring an adequate interval for consideration and guarding against the danger of an over-hasty conclusion that any communication concerning Mr Babington-Wilson necessarily constitutes communication to Mr Babington-Wilson.

For the avoidance of doubt, baldness acquired after commencement of the hearing shall not invalidate a ruling already made.

The Defendant also finds it useful, as a drafting stress-test, to translate propositions from an Indo-European language into a structurally different language. Bambara is useful for this purpose because forcing the proposition into a different grammatical system tends to expose ambiguities concealed by familiar English phrasing. No juridical significance is suggested.

The intended proposition in Bambara, using the ordinary Latin orthography, is approximately:

Bambara may also be written in N’Ko, a right-to-left script devised for Manding languages. An illustrative N’Ko rendering of the same Bambara sentence is:

The intended English sense is:

The linguistic exercise is included only to make the intended distinction conspicuous: the prohibition is upon a communication from Sam to Oli, not upon speech about Oli which may later reach him independently.

The Defendant accordingly invites the Court to replace the present internet, social-media and broadly expressed indirect-contact conditions with the precisely defined conditions above.

The Defendant’s primary position is not that the named protected persons should cease to be protected from contact. It is that the prohibited act should be stated with sufficient precision that the Defendant, the police and the Court can all identify the same boundary.

If the October trial is maintained, the Defendant seeks the primary variation at paragraphs 23–30.

If the trial is adjourned for a substantial further period, the Defendant seeks the additional variation at paragraphs 31–38.