England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN LEEDS
The Rt. Hon. Lord Justice McCombe and the Hon. Mr Justice Stewart
[2013] EWHC 2208 (QB)

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/01/2015

Lord Justice Beatson :

I. Introduction

1. The question in this appeal is whether the powers conferred under the Sexual Offences Act 2003 ("the SOA 2003") enable a person who is subject to a Sexual Offences Prevention Order ("SOPO") to be required to wear a Location Monitoring Device, "a tag", when away from the premises at which he is residing or staying overnight. The tag uses a global positioning system ("GPS") to identify the location of the person wearing it.
2. On 12 March 2012 the Teesside Magistrates' Court made a SOPO against Paul Richards ("the appellant"). By the appellant's own admission, he poses a real danger to women and in particular to prostitutes. It is not in issue that he satisfies the requirements for the imposition of a SOPO. He does so by reason of an offence of indecent assault for which he was convicted in April 1983. Paragraph (1) of the March 2012 SOPO prohibited the appellant from "having … any friendship or sexual or physical relationship with any female without first notifying a Police risk management officer within the Public Protection Unit [of the area in which he resided] of that female's full details and where necessary that female be made aware of [his] convictions". Paragraph (2) prohibited him from "approaching, enticing or otherwise seeking to communicate with, or communicating with any female he knows or suspects to be involved in prostitution without reasonable cause".
3. On 13 August 2012, as a result of continuing concern about the appellant and the fact that a community order imposed on him with requirements of supervision and residence at approved premises was due to expire, the Chief Constable of the Cleveland Police applied to the Teesside Magistrates' Court to vary the SOPO principally by requiring him to wear a tag when away from his address or any other premises in which he was residing or staying overnight. On 15 October 2012, following a hearing at which the appellant was represented and it was submitted on his behalf that there was no power to require him to wear a tag, the Court granted the application and varied the SOPO. The police stated that the purpose of the tag was to enable them to determine whether the appellant has entered a "red light" area. It also enabled them to locate him wherever he was. These judicial review proceedings challenging the variation of the SOPO were filed on 15 January 2013. The claim was dismissed by a Divisional Court (McCombe LJ and Stewart J) on 30 July 2013 (see [2013] EWHC 2208 (QB)) and the appellant now appeals against the order made by that court.
4. The submissions made on behalf of the appellant to the Divisional Court and to us have three limbs:-

(1) Unlike other statutes which authorise tagging, there is no express provision authorising tagging in the SOA 2003, and, because requiring a person to wear a tag affects a fundamental right, the right to personal autonomy and privacy, it cannot be overridden by general or ambiguous statutory words. For this to be done, express language is required.

(2) There is no power under the SOA 2003 to require tagging because the effect of section 107(1) is that a SOPO must be negative in nature and not positive. The consequence is that a SOPO cannot provide that the person affected carry out positive acts, such as wearing a tag.

(3) The location monitoring enabled by the tag interfered with the appellant's right under Article 8 of the European Convention on Human Rights ("the ECHR") to private life and the imposition of this interference by making the order is not "in accordance with the law" because there is nothing specific in the SOA 2003 that authorises such monitoring. It is therefore very unclear what conditions could be imposed as part of a SOPO. Before the Divisional Court this point was confined to the legality of the initial imposition of a SOPO with a tagging requirement. Before this court Mr Southey QC raised a new point. It is that, in addition to the problem with the imposition of a tagging requirement in a SOPO, the absence of statutory rules governing the retention of the data obtained from the tag and the use of such data also meant the interference was "not in accordance with the law".

5. It was not in contention that the location monitoring enabled by the tag interfered with the appellant's Article 8 right to private life. It was also accepted below and before this court that, if the requirement to wear a tag is "in accordance with the law", in the light of the appellant's history and circumstances (which I summarise below), requiring him to do so cannot be said to be either unnecessary or a disproportionate interference with his right to private life.
6. I have been assisted by the written and oral submissions of Mr Southey on behalf of the appellant, and the written submissions of Mr Knowles QC and Ms Smith on behalf of the Chief Constable of the Cleveland Police ("the second respondent"). It was only necessary for the court to hear oral submissions from Mr Knowles on the ECHR points.
7. In sections II and III of this judgment I summarise the factual background to the making and varying of the SOPO against the appellant and set out the material provisions of the SOA 2003. Section IV summarises the reasoning of the Divisional Court, and section V contains my reasons for concluding that the Magistrates' Court was entitled to impose the tagging requirement on the appellant as part of his SOPO and that this appeal should be dismissed.

II. The Factual Background

8. My summary of the factual background to the making and varying of the SOPO against the appellant is primarily taken from the clear account given by McCombe LJ at [5] – [11] of his judgment.
9. The appellant is now aged 48. He has a long history of offending with convictions for offences of violence, kidnapping, dishonesty, harassment, possession of drugs, and for twelve sexual offences. He also has convictions for failures to comply with notification requirements under the Sex Offender Registration provisions and is the subject of restraining orders for the protection of three specific adult women who have been the subject of harassment or violence by him.
10. The appellant's most recent conviction for a sexual assault was for offences of kidnapping and sexual assault in 1995. His most recent convictions are for theft by shoplifting at the Teesside Magistrates' Court on 26 April 2012 and, at the same court, on 14 May 2012 for three further offences of shoplifting, for possession of class B and class C drugs, and for handling stolen goods. He has been assessed as meeting the criteria for a diagnosis of Anti-Social and Narcissistic Personality Disorder and Severe Psychopathy, with a resulting high risk of sexual recidivism. The medical evidence also indicated that he manifests high levels of deceit and manipulation and shows minimal empathy or remorse for his offending. He was registered as a "critical public protection case" pursuant to the arrangements in section 325 of the Criminal Justice Act 2003, on the basis that he poses an imminent risk of serious harm from potential re-offending.
11. After the SOPO was made on 12 March 2012, as a result of observations by the police officers from the Public Protection Unit who saw him regularly to monitor him, and the events surrounding the recent offences to which I have referred, the police remained concerned about the risk he posed. There was also greater concern because the community order imposed on him in October 2011 with requirements of supervision and residence at approved premises was due to expire on 25 October 2012. At monitoring meetings on 27 June and 11 July 2012, the appellant stated to an officer from the Public Protection Unit that he would agree to wear an electronic Location Monitoring Device if that would meet the concerns of professionals regarding his re-offending. It is said that he made this proposal because he was concerned that details of his previous sexual convictions were being disclosed and he wished to avoid that happening by being co-operative. On 26 July he told an officer that he wanted to have a tag fitted as it would help him set boundaries, and that he was concerned he could not control himself and might wander into a "red light" district and speak to a prostitute and therefore commit an offence. At some stage, however, he changed his mind about the tag.
12. The Chief Constable's application to vary the SOPO was supported by a report prepared by Mr Whitehead, a probation officer involved with the appellant, and input from Mr Carey, a forensic community psychiatric nurse. Mr Carey's assessment was that the appellant was one of the most worrying and dangerous individuals he had come across. In his July 2012 report, Mr Carey stated that to a degree the appellant responded to boundary setting and the requirement to reside at the specified location where his movements were monitored. He considered that the boundary setting would be enhanced by the use of a tag, as the appellant would be aware that his location would be known at any time.
13. Before the Teesside Magistrates' Court the submissions later made to the Divisional Court and to this Court (see above) were made and were rejected. The magistrates varied the SOPO by adding the following prohibitions:

"(7) Leaving and/or being away from your registered address or any other premises at which you may be residing or staying overnight without wearing a fully functioning and charged Location Monitoring Device issued to you by the Police.

(8) Tampering, damaging and/or removing the Location Monitoring Device without the prior permission of the Public Protection Unit (or the equivalent department) of the Police Force area in which you reside.

(9) Failing to make the Location Monitoring Device and associated equipment available on request for inspection by a Police Officer."

It is common ground that it is not possible for the appellant to remove the tag when he is at home, and that, because of his need to leave his home to comply with his reporting requirements, there was no way he could avoid wearing it.

14. Shortly after the variation of the order, on 26 October 2012, the appellant was arrested for a suspected breach of the SOPO. It was alleged that the breach was committed when his presence was detected in an area known to be frequented by prostitutes. The appellant has been in custody since. He was sentenced to a term of imprisonment for three breaches of the SOPO on 15 November 2013.

III. The statutory framework

15. The material provisions of the SOA 2003 are sections 104, 106, 107, 108 and 113. Sections 104 and 106 make provision for chief constables to make applications to a magistrates' court for a SOPO and specify the grounds upon which such orders can be made and their purpose. The material parts of section 104 provide:

"(1) A court may make an order under this section in respect of a person ("the defendant") where any of subsections (2) to (4) applies to the defendant and-

(a) where subsection (4) applies, it is satisfied that the defendant's behaviour since the appropriate date makes it necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant;

(b) In any other case, it is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant.

……....

(4) This subsection applies to the defendant where-

(a) an application under subsection (5) has been made to the court in respect of him, and

(b) on the application, it is proved that he is a qualifying offender.

(5) A chief officer of police may by complaint to a magistrates' court apply for an order under this section in respect of a person who resides in his police area or who the chief officer believes is in, or is intending to come to, his police area if it appears to the chief officer that-

(a) the person is a qualifying offender, and

(b) the person has since the appropriate date acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made."

It is common ground that the appellant was, and is, a "qualifying offender" for these purposes.

16. Section 106(3) provides that "[p]rotecting the public or any particular members of the public from serious sexual harm from the defendant" in section 104(1)(a) means:

" … protecting the public in the United Kingdom or any particular members of that public from serious physical or psychological harm, caused by the defendant committing one or more offences listed in Schedule 3."

17. The material parts of sections 107 and 108 provide:

"107 SOPOs: effect

(1) A sexual offences prevention order-

(a) prohibits the defendant from doing anything described in the order, and

(b) has effect for a fixed period (not less that 5 years) specified in the order or until further order.

(2) The only prohibitions that may be included in the order are those necessary for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant.

…."

108 SOPOs: variations, renewals and discharges

…

(5) An order may be renewed, or varied so as to impose additional prohibitions on the defendant, only if it is necessary to do so for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant (and any renewed or varied order may contain only such prohibitions as are necessary for this purpose)."

18. Under section 113 of the Act it is an offence to break the terms of a SOPO and the offence is punishable with up to 5 years imprisonment.

IV. The decision of the Divisional Court

19. The arguments before the Divisional Court were substantially the same as those before this court. I summarised them at the beginning of this judgment. McCombe LJ, with whom Stewart J agreed, rejected the appellant's case for the following reasons:

(1) Sections 107 and 108 of the SOA 2003 confer sufficient power to impose prohibitions such as those in paragraphs (7), (8) and (9) of the SOPO. The Act permits, quite generally, the imposition of prohibitions which are necessary for the protection of the public from serious sexual harm: see judgment, [27]. The absence of specific provision in it for the making of restrictions on movement in the absence of tagging does not mean that such restrictions are outwith the power conferred. The specific provisions for tagging in other Acts of Parliament in other areas are not of assistance because those Acts are dealing with other matters. For example, section 3(3) of the Bail Act 1976, specifically enacts that only requirements specified in section 3 of the Act may be imposed as conditions of bail. see judgment, [28] and [29].

(2) The requirements in paragraphs (7), (8) and (9) of the order against the appellant are properly to be seen as prohibitions and not as mandatory requirements of action by him.

(a) Apart from being phrased as prohibitions as "a matter of language", "they are substantially, and not just formally, prohibitory": see judgment, [27]. This was because (see judgment, [33]) "the essence of the restriction … is to prevent the [appellant's] movements in public places without measures in place to ensure that intervention is possible where the potential for serious criminal offending is likely". McCombe LJ considered that was "a negative requirement".

(b) The judgment of the Court of Appeal Criminal Division in Smith and others (see [23] below), given by Hughes LJ (as he then was), shows that the courts have continually developed and adapted orders to meet what Hughes LJ described (at [4]) as the twin requirements of "necessity and clarity". For these purposes, "the SOPO offers a flexibility in drafting which is in one sense welcome because it enables the order to be tailored to the exact requirements of the case": see judgment, [30] and [32].

(c) In the light of the decisions in R (Lonergan) v Lewes Crown Court [2005] EWHC 457 (Admin), [2005] 1 WLR 2570 and Thomson [2009] EWCA Crim 3258 at [16], the restrictions in paragraph (7) of the order and the other provisions constitute:

"… a restriction upon the manner in which the [appellant] must conduct himself when away from his residence. One can envisage circumstances in which a restriction might be formulated preventing particular movements by an offender without notification to the authorities. It seems hard to see why such a restriction would be different in its true nature from the present; it would impose to some extent a positive, precedent requirement of notification before certain activity is conducted, but in substance it would still be a prohibition." (judgment, [32]).

(d) The restriction in paragraph (8) of the order preventing "tampering, damaging and/or removing" the tag without prior permission is one that is "quite obviously negative in nature": judgment, [35].

(e) The requirement in paragraph (9) to make the tag and associated equipment available on request for inspection by a police officer was ancillary to that in paragraph (7) and no more objectionable than the provision considered in Thompson [2009] EWCA Crim 3258.

(3) The conclusions summarised at (1) and (2) above meant that it was not necessary to determine the submission on behalf of the Chief Constable that the three paragraphs were merely ancillary to the undoubted prohibition in paragraph (2) on "approaching…or otherwise seeking to communicate with…any female he knows or suspects to be involved in prostitution without reasonable cause": judgment, [36]).

(4) As to the ECHR points, after considering R (Gillan) v Commissioner of Police [2006] 2 AC 322 at [1] and [34] and Sunday Times v United Kingdom (No 1) (1979-1980) 2 EHRR 245 at [49] the court decided that the lawful authority for the SOPO was contained in the SOA 2003 itself: judgment, [40]. The Strasbourg jurisprudence did not require every detail of a legal power to be spelled out. What the requirement of "in accordance with the law" is aimed at is to require the exercise of public power to be governed by clear and publicly accessible rules of law, to be free from arbitrariness, and to be adequately accessible and sufficiently clear to enable people to regulate their conduct by being able to foresee the consequences of their actions. In the case of a SOPO, "the subject can be taken to be aware that sexual offending is contrary to law, and he can discover that, if he engages in it, he is liable to severe penalties and may be made subject to an order regulating his future conduct to prevent further offending". Where he has offended, and a SOPO is made, "the law requires the order to be sufficiently clear to define what he may not do" and be limited "to what is necessary to protect the public": judgment, [41].

V Discussion

20. I first summarise the approach in the authorities. I then discuss the grounds upon which it is submitted the Divisional Court fell into error.

(i) The approach in the authorities:

21. The SOA 2003 "requires the order to be substantially and not just formally prohibitory: R (Lonergan) v Lewes Crown Court [2005] EWHC 457 (Admin), reported at [2005] 1 WLR 2570 at [7] per Maurice Kay LJ. In assessing what nature of an order is, the court does not adopt a technical approach but is concerned with the substance of the order. As part of its concern with substance, the court will determine whether provisions which on their face appear mandatory, are in substance prohibitory when seen in context because, for instance, they are exceptions or conditions to a prohibition elsewhere in the order. This is seen from the approach in decisions of the Court of Appeal Criminal Division concerning SOPO conditions, described as a "continuing search warrant", requiring the subjects of the order who had been convicted of offences of child pornography to provide access by the police to their home addresses to enable their computer equipment to be interrogated.
22. In Thompson [2009] EWCA Crim 3258 the court in fact found that this requirement was not justified in the particular circumstances of the case. But, what is of significance is that the court, stated (at [16]) that, although the requirement to provide access was not in substance a prohibition on the appellant in that case, and was also a general permission to the police to act in the way specified, "the power of the court to impose prohibitions, it seems to us, must include the power to impose prohibitions subject to exceptions or conditions".^[1]
23. In Smith and others [2011] EWCA Crim 1772, reported at [2012] 1 WLR 1316 and [2012] Cr App R (S) 82, the court, in a judgment given by Hughes LJ (as he then was) dealt with a number of questions about the use of SOPOs, including computer use and internet access. The Divisional Court in the present case (see [19(2)(b)] above) relied on [4] of the judgment in Smith's case where the court stated:

"The SOPO offers a flexibility in drafting which is in one sense welcome because it enables the order to be tailored to the exact requirements of the case. That flexibility, however, must not lead draftsmen to an inventiveness which stores up trouble for the future. It will do this if it creates a provision which is, or will become, unworkable. That may be because it is too vague or because it potentially conflicts with other rules applicable to the defendant, or simply because it imposes an impermissible level of restriction on the ordinary activities of life. The SOPO must meet the twin tests of necessity and clarity. The test of necessity brings with it the subtest of proportionality."

24. That paragraph and the remainder of the court's judgment in Smith's case did not directly address the question of how to determine whether a requirement is prohibitory or mandatory. The court did not refer to the decisions in Lonergan's case or Thompson's case. There are, however, two significant elements in its decision about Internet access, which are of assistance in answering the question before us. In my judgment, they show that the approach taken in Smith's case to that question is substantially identical to that taken in Lonergan's case and Thompson's case.
25. The first of those elements is the court's statement (at [18]) that "a blanket prohibition on computer use or internet access is impermissible" and "is disproportionate because it restricts the defendant in the use of what is an essential part of everyday living for a large proportion of the public, as well as a requirement of much employment". The second element is the court's statement (at [20(v)]) that "there is no need for the SOPO to invest the police with powers of forcible entry into private premises beyond the statutory ones which they already have. It is sufficient to prohibit use of the internet without submitting to inspection on request. If the defendant were to deny the officers sight of his computer, either in his home or by surrendering it to them, he would be in breach." The orders of three of those before the court in Smith's case were varied to prohibit the possession or use of any device capable of accessing the internet unless it is made available on request for inspection by a police officer. These two elements involve looking at the substance of a restriction and recognising that a provision which appears mandatory is in substance prohibitory if (like the requirement to permit access to a computer) it is an exception to a prohibition.
26. I turn to the appellant's critique of the Divisional Court's approach.

(ii) Does the absence of express words in the SOA 2003 permitting electronic monitoring of a SOPO preclude a court from imposing a requirement relating to the wearing of a tag: .

27. The appellant's case is that as there is no express provision in the SOA 2003 authorising tagging, and as requiring a person to wear a tag represented a very substantial interference with a fundamental right, the right to personal autonomy and privacy, the SOA 2003 did not authorise tagging. The appellant has no choice but to wear the tag which gave the police the ability to gain substantial data about his activities and meant that he was unable to undertake lawful activities about which he did not want the police to know. In R v. Secretary of State for the Home Department, ex p. Simms [2000] AC 115 Lord Hoffmann stated (at 131) that "fundamental rights cannot be overridden by general or ambiguous words … and … [i]n the absence of express language or necessary implication to the contrary, the courts … presume that even the most general words were intended to be subject to the basic rights of the individual". I reject this submission. I do not consider this to be a case in which the Simms principle is engaged, and I do not consider that the express provisions authorising tagging in other Acts of Parliament in other areas assist.
28. I can deal with the argument based on other statutes briefly. Mr Southey's written submissions refer to three statutes which expressly state that electronic monitoring is permitted: Bail Act 1976, section 3AB (as inserted by paragraph 4 of Schedule 11 to the Criminal Justice and Immigration Act 2008, as amended by section 6(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012), Criminal Justice and Court Services Act 2000, section 62, and Terrorism Prevention and Investigation Measures Act 2011, Paragraph 12 of Schedule 1. He did not, however, take us to any of them to show why their context means that the silence of the SOA 2003 on tagging is significant, for example because there is a significant similarity in the statutory purposes served. In the light of his continued reliance on the Bail Act 1976, as amended, it was surprising that he did not offer a suggestion as to why we should consider that McCombe LJ erred when stating that the Bail Act 1976 was not in pari materia because section 3(3) specifically enacts that only requirements specified in section 3 of the Act may be imposed as conditions of bail. The exercise we were invited to undertake on the basis of what were, apart from pointing to the express references to electronic monitoring in the other statutes, entirely unparticularised submissions, was in my judgment an illegitimate approach to statutory construction.
29. I turn to the Simms principle. My principal reason for concluding that this is not a case in which it is engaged is that paragraph (7) of the order in the present case has been imposed pursuant to a specific power in the SOA 2003 to impose prohibitions on a person who has committed a qualifying sexual offence. Many standard features of SOPOs may affect the fundamental rights of the persons subject to them. The rights that are often so affected include the freedoms of association, expression and movement, and the right to family and private life. The only restrictions in the SOA 2003 as to what may be included in a SOPO are those in section 107(2) and section 108(5). They provide that it must be "necessary" to impose the prohibition in order to protect "the public or particular members of the public from serious sexual harm from the defendant". Apart from these requirements, Parliament did not restrict or limit the prohibitions which may be included in a SOPO. Given the myriad ways in which such harm may be caused, the absence of a list of permitted prohibitions is understandable.
30. Secondly, Mr Southey's emphasis on the need for express words ignored or underplayed Lord Hoffmann's reference to "necessary implication". The fact that so many standard prohibitions are likely to affect the fundamental rights of the person who is subject to the order means that I consider that Parliament has, by "necessary implication" authorised requirements which affect those rights. This is, of course, subject to the requirements of clarity and proportionality stated by the Criminal Division of this court in Smith's case, in the passage I have set out at [23] above. The result is, as was also stated in Smith's case, that the statutory provisions enable flexibility in the drafting of a SOPO which enables the order to be tailored to the exact requirements of the case.
31. Thirdly, if accepted as a general proposition for restrictions which affect fundamental rights, Mr Southey's submission would fundamentally undermine the efficacy of SOPOs. The consequences of his submission can be illustrated by the way he dealt with a question the Master of the Rolls asked during the hearing about paragraph (1) of the order. Paragraph (1) prevents the appellant having "any friendship … with any female …" without notifying the police. It clearly affects the appellant's right to private and family life. Asked about the fact that there is no express provision in the SOA 2003 for interference with this right, Mr Southey did not seek to argue that paragraph (1) of the order is therefore unauthorised. He sought to distinguish paragraph (1) from paragraph (7), but his explanation of why what he said about fundamental rights in relation to paragraph (7) did not apply to paragraph (1) was unconvincing. Significantly, his explanation had nothing to do with the impact the requirements in both paragraphs have on fundamental rights. It was that the requirement in paragraph (1) is a prohibitory one which is relaxed by a notification requirement, whereas the requirement in paragraph (7) is a mandatory requirement which cannot be seen as a relaxation of a stricter prohibitory one because it would not have been permissible to prohibit the appellant from leaving his home at all.

(iii) Is an order requiring a person subject to a SOPO to wear a tag while away from his or her home address substantively a prohibitive order?

32. The appellant's case is that because section 107(1) requires that a SOPO must be negative in nature, a SOPO cannot provide that the person affected carry out positive acts, such as wearing a tag. At the core of this part of the case is the submission that the decisions in the cases of Lonergan and Thompson are distinguishable because in those cases the positive obligation could be regarded as a relaxation of a prohibition which could lawfully be imposed by a SOPO. It was argued that paragraph (2) of the order in this case cannot be so regarded because it would have been unlawful to impose a condition totally prohibiting the appellant from leaving his residence. A positive obligation cannot, it was argued, be regarded as a relaxation of a prohibition, where the prohibition is itself unlawful.
33. The short answer to the suggested distinction between the disputed parts of the SOPO and the orders in the cases of Lonergan and Thompson is provided by the decision and the reasoning of the Court of Appeal Criminal Division in Smith's case. At [25] above I summarised the two elements in Smith's case which I consider to be of assistance in this case. If those two elements are put together, they create an insuperable obstacle to the appellant's case. In Smith's case the court recognised that an apparently mandatory requirement (submitting a computer to inspection on request by the police) can fall within the scheme of the SOA 2003 even where the absolute prohibition which it qualifies (a blanket prohibition on computer use or internet access) is one which is impermissible. That, in my view, is fatal to establishing a material distinction between the present case and Lonergan and Thompson.
34. It is true that it would have been unlawful to impose a condition totally prohibiting the appellant from leaving his residence because it would amount to a deprivation of liberty, but it is clear since Smith's case that total prohibition of computer use or internet access is also impermissible. Accordingly the positive obligation qualifying such a blanket prohibition would also be qualifying an impermissible restriction. The positive obligation qualifying an impermissible restriction was nevertheless held in Smith's case to be an obligation that was authorised by the provisions of the SOA 2003. When the distinction suggested is fully analysed, it may also be seen to elide objections to paragraph (2) based on the nature of the tagging requirement in it, and objections based on the necessity and disproportionality of the underlying prohibitory requirement if that requirement is considered to be absolute.
35. McCombe LJ (at [32]) stated that the relevant provisions of the SOPO in this case "constitute a restriction upon the manner in which the [appellant] must conduct himself when away from his residence". He considered that a restriction which is formulated so as to prevent particular movements by an offender without notification to the police would not be different in its true nature from the provisions in present case. He stated that, although it would impose to some extent a positive, precedent requirement of notification before certain activity is conducted, in substance it would still be a prohibition. I respectfully agree.
36. Although there was no Respondent's Notice in this case Mr Knowles relied on an alternative basis for upholding the SOPO in this case. He submitted that paragraphs (7), (8) and (9) are merely ancillary to the prohibition in paragraph (2). He stated that the reason those paragraphs were included in the SOPO was in order for that paragraph (2) to be monitored, and that paragraph (7) was directed to monitor whether the appellant entered a "red light" area. McCombe LJ did not (see [36]) decide whether this argument was correct but stated that Mr Southey's submission that paragraphs (7), (8) and (9) cannot be ancillary to the prohibition in paragraph (2) because the prohibition in paragraph (7) went beyond the mere policing of whether the appellant entered a "red light" area, and thus beyond the purpose to which it was said to be directed, had "some attraction". It is also not necessary for me to decide this point. I observe only that I share McCombe LJ's view and consider that the argument that paragraphs (7) – (9) are ancillary to the prohibition in paragraph (2) faces other difficulties in the light of the way it is drafted. I have referred to the fact that paragraph (2) does not in fact prohibit the appellant from entering "red light" areas, let alone defining which areas fall within that category. It would have been easy to have included such a prohibition, but (perhaps surprisingly) it was not done even though it was stated on behalf of the Chief Constable that the tag was required to enable paragraph (2) to be monitored. It thus enabled the monitoring of something that was not prohibited. Moreover, the tag would not detect whether the appellant was in breach of what was prohibited by paragraph (2); i.e. approaching or seeking to communicate with any female he suspects to be involved in prostitution.

(iv) The Appellant's Article 8 case:

37. It is common ground that monitoring by a tag interferes with a person's right to private life under Article 8. It is accepted on behalf of the appellant^[2] that, in the light of his history, if they are otherwise lawful, the disputed parts of the SOPO are "necessary" for the defined statutory purpose and justified under the second paragraph of Article 8 as a proportionate interference with his rights. The sole question therefore is whether the imposition of the disputed parts of the SOPO was "in accordance with the law".
38. The appellant's Article 8 case has two limbs. The first, which was rejected by the Divisional Court, is that the absence of explicit authorisation of tagging in the SOA 2003 means its imposition is not authorised by the law. The second was not put to the Divisional Court. It is now submitted that an additional and free-standing reason that the disputed parts of the SOPO are not "in accordance with the law" is that neither the SOA 2003 nor any guidance provides any safeguards about the retention of data obtained about the appellant's movements and the use to which data may be put.

(a) The absence of explicit authorisation of tagging means that the orders imposed by the disputed paragraphs are "not in accordance with the law":

39. Mr Southey relied in particular on the decision of the Strasbourg Court in Uzun v Germany (2011) 53 EHRR 852, a decision about covert surveillance using a GPS receiver in Mr Uzun's car. He submitted that the extent of the intrusion in this case, involving as it does systematic monitoring and sensitive information, meant that more guidance is required to enable the appellant to regulate his conduct and to know how to foresee the consequence of his actions and that it would have been easy to provide for tagging in the statute.
40. This submission is the ECHR version of the submission based on a common law construction of the SOA 2003 and the common law principle of legality which I considered and rejected at [29] – [31] above. I also reject the ECHR version of this submission. I do so largely for the reasons given by the Divisional Court which I have summarised at [19(4)] above. I add only that in Sunday Times v United Kingdom (1979) 2 EHRR 245 at [49] it was recognised that, in order to avoid excessive rigidity, many laws "are couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice". The Strasbourg Court has also recognised that courts can give clarity to open-textured statutory language, and that a penumbra of doubt in relation to borderline cases and circumstances is not problematic for ECHR purposes: see CG v Bulgaria (2008) 47 EHRR 51 at [40], and Application 17862/91, Cantoni v France (1996) ECHR. As to Uzun v Germany (2011) 53 EHRR 852, I consider that Uzun's case provides very limited support for the appellant's case. For instance, the court's statement (at [61]) that the GPS surveillance "measures must be based on a law that is particularly precise" was confined to secret surveillance. Indeed, for the reasons in the next two paragraphs, I consider it provides significant support for the Chief Constable's case.
41. First, in Uzun's case, the use of GPS surveillance was held to be "in accordance with the law" although the relevant provision, Article 100c(1) of the Code of Criminal Procedure, did not explicitly refer to it. The court found (at [68]) that the authorisation of "special technical means … of surveillance" covered methods which were neither visual nor acoustical. It also found that the German courts' finding that GPS surveillance was covered by Article 100c(1) "was a reasonably foreseeable development and clarification of the Code of Criminal Procedure by judicial interpretation".
42. Secondly, the SOPO and the variations to it which are challenged were imposed by the Teesside Magistrates' Court after an adversarial hearing at which the appellant was represented. In Uzun's case, the Strasbourg court regarded such prospective judicial control over arbitrariness sufficient to meet the ECHR requirements of legality, accessibility and foreseeability. In Germany (but only after the events which gave rise to Mr Uzun's case) the law only required prior authorisation by a judge if the systematic surveillance was to be for a period of over a month. It is particularly telling that, in the circumstance of Mr Uzun's case, the Strasbourg court regarded (see [71] – [72]) even the retrospective judicial control available to him "in the form of the court's power to review the legality of the surveillance and its discretion to exclude evidence obtained from an unlawful surveillance from a trial" as sufficient. Such control also exists in the case of a SOPO made by a District Judge or a magistrate. This is because the power to make the order must be exercised within the confines of the statutory purpose for which it is given, and for no other purpose, and because of the additional control on arbitrariness in the form of the duty not to act in a way that is "Wednesbury unreasonable" or "Diplock irrational"^[3] and the availability of judicial review of decisions of Magistrates' Courts.

(b) The absence of sufficient guidance on retention and use of data obtained from the tag means that the orders imposed by the disputed paragraphs are "not in accordance with the law":

43. The new part of the appellant's case based on Article 8 concerns the retention and use of the data obtained about the appellant's movements. It is submitted that the disputed parts of the SOPO are not "in accordance with the law" because neither the SOA 2003 nor any guidance provides any safeguards about retention of the data and the use to which it may be put. The foundation for this submission is the decision in MM v United Kingdom Application 24029/07 decided by the Strasbourg Court on 13 November 2013, after the decision of the Divisional Court in this case. In 2006 MM, who had agreed in 2000 to be cautioned for child abduction, was offered a job subject to vetting, but the offer was withdrawn when the caution was disclosed to the employer. The applicant then sought to challenge the retention of the record of her acceptance of the caution but the Northern Ireland Criminal Records Office stated that this could not be done. The Strasbourg Court held that the Northern Ireland regime for checking criminal records violated Article 8.
44. Mr Southey relied in particular on three paragraphs of the judgment in MM's case. The first is [187] where the Court stated that both the storing of information relating to private life and the release of such information come within the scope of Article 8. The second is [195] where it stated that it is "essential" in the context of the recording and communication of criminal record data and secret surveillance and covert intelligence-gathering "to have clear, detailed rules governing the scope and application of measures". The third is [199] where it stated that "the indiscriminate and open-ended retention of data was unlikely to comply with Article 8 in the absence of clear and detailed statutory regulations clarifying the safeguards applicable and setting out the rules governing, inter alia, the circumstances in which data can be collected, the duration of their storage, the use to which they can be put and the circumstances in which they may be destroyed".
45. The argument put was that, in the light of the sensitivity of the data obtained from the tag, the absence of clear and detailed statutory regulations meant that the regime for SOPOs did not meet the requirements of clarity, certainty, and foreseeability required in respect of the disputed parts of the order against the appellant. The disputed parts of the SOPO were therefore not made "in accordance with the law".
46. Mr Southey's skeleton argument did not refer to two documents which were included in the papers before the court. The first is the Code of Practice on the Management of Police Information, a statutory code issued by the Home Secretary in July 2005 under the Police Acts 1996 and 1997, hereafter "the Code". The second is the guidance issued under §3.3 of the Code on behalf of the Association of Chief Officers of Police by the National Centre for Policing Excellence. It is entitled Guidance on the Management of Police Information (2006),^[4] hereafter "the Guidance".
47. Although Mr Southey's oral submissions acknowledged the existence of these documents, he did not take the court to any particular part of them or give reasons why the guidance in them did not suffice to provide the necessary clarity and foreseeability required. It therefore appeared that the target of this ground of challenge was the SOA 2003 itself and that the complaint related to the absence of guidance in that statute or possibly (although there was no indication of this) the absence of guidance in secondary legislation. To that extent he appeared to be arguing that the guidance must be given in primary or secondary legislation, or was, as Mr Knowles observed, making a very wide attack on the Code and the Guidance.
48. I reject these submissions, largely for the reasons advanced by Mr Knowles. It is simply not the case that there is no guidance as to the retention and use of police information. The question is whether the Code and the Guidance provide the clarity and foreseeability required to prevent arbitrariness. If they do it will mean that the disputed parts of the SOPO are "in accordance with the law". Although, in Gillan's case the House of Lords and the Strasbourg Court reached different conclusions as to whether the stop and search powers under consideration were "in accordance with the law", in reaching their conclusions both courts had regard to the provisions of Code A, the statutory code issued under the Police and Criminal Evidence Act 1984.^[5] I also observe that although in MM's case the Strasbourg court concluded that the Northern Ireland versions of these documents did not cure the (different) problem in that case, the court did so only after analysing their contents.
49. In the present case the Code contains a chapter identifying the "key principles" concerning the police's duty to obtain, manage, retain and delete information (including personal information). It has sections on "sharing" information within and outside the UK police service, and the protection of sensitive police information. The principles address the procedures for reviewing the need to retain information and, where it is no longer needed, to destroy it: see §§ 1.1.5 and 4.6. §4.6 requires consideration to be given to retention or deletion or destruction on each occasion when information is reviewed in accordance with criteria set out in the Guidance. The Guidance provides detailed assistance on the "key principles", and for example includes sections on public protection and person records. The former refers (at §4.4.4) to those convicted of sexual offences who are the subject of extended supervision or registration arrangements. Part 7 deals with the review and retention of information held by police forces in the light of the legislative requirements in the Data Protection Act 1998, the Human Rights Act 1998, the Criminal Procedure and Investigations Act 1996, and the Freedom of Information Act 2000.
50. Accordingly, there are relevant policies in place governing the retention of data obtained through location monitoring. These require police forces to conduct reviews of data retained by them at regular intervals in order that they assess whether continued retention is justified. Those reviews must show that the retention is necessary for a policing purpose as defined in §2.2 of the Code, without which, the information cannot (see Guidance, §1.4) be held. They must (see Guidance, §7.7.2) comply with the eight data protection principles in the Data Protection Act. It is stated (see Guidance, §7.2.1) that the requirements of the Human Rights Act mean that "[t]he decision to retain personal records must be proportionate to the person's risk of offending, and the risk of harm they pose to others and the community". The Guidance also states that "the fact information is retained for a policing purpose does not mean that it can necessarily be shared outside the Police Service".
51. I would therefore dismiss this appeal. My reasons for concluding that the Magistrates' Court was empowered to impose the additional requirements it did when varying the SOPO are set out at [27] – [42] above. They are broadly the same as those given by McCombe LJ in the Divisional Court. My reasons for rejecting the point not raised below and first raised in this Court are set out at [43] – [50] above

Lord Justice Fulford:

52. I agree

The Master of the Rolls:

53. I also agree.

Note 1    A similar approach was taken in Smith [2009] EWCA Crim 785, reported at [2009] 2 Cr App R (S) 718.    [Back]

Note 2    Judgment at [20].    [Back]

Note 3    Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410G per Lord Diplock.    [Back]

Note 4    A second edition of the Guidance was published in 2010.    [Back]

Note 5    R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12 at [35], [53], [55] and [76] reported at [2006] 2 AC 307, and Gillan v United Kingdom (2010) 50 EHRR 45 (12 January 2010) at [79].    [Back]