England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		10th July 2007

1. LORD JUSTICE HUGHES: By this application for judicial review the Commissioner of Metropolitan Police seeks to challenge the decision of the Crown Court sitting at Croydon, on appeal from the magistrates' court, not to uphold a sexual offences prevention order which had been made against Mr Burrell.
2. Mr Burrell is 48. He has been ill for some time with some level of schizophrenia. So far as we can tell it has not involved hospitalisation, or at least not for some years, if it has at all. But it has been a recurrent condition. On 9th September 2005 he was convicted at the magistrates' court of an offence of sexual assault. What he had done was to sit next to a woman on a train. He had slid his hand along the back of the seat behind and underneath her, to touch her on the bottom from underneath, and that he had done twice.
3. For the offence on plea of guilty Mr Burrell was put on probation. To put that in exact and correct language, a community rehabilitation order was made for two years with conditions (1) of supervision, and (2) to receive psychiatric treatment under the direction of a consultant psychiatrist.
4. The application for a sexual offences prevention order was not made to the sentencing court, but, as it can be, shortly afterwards as a free-standing application. The court had power to make such an order under section 104(1) of the Sexual Offences Act 2003, if, first, the man was a qualifying offender (and he was) and, secondly, if the court was satisfied that it was necessary to make the order for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant. The concept of "serious sexual harm" there referred to is further defined by section 106(3) of the Act to mean:

"... serious physical or psychological harm, caused by the defendant committing one or more [of a number of scheduled sexual offences]."

5. The present application was based, first, on the recent conviction of September 2005. It was, however, also based on a longer history, spreading over something like 30 years, and an interview which the police officer charged with the case had had with the defendant recently.
6. Over that period of 30 years, the defendant had been convicted of very similar offences on a total of five occasions, including the most recent one to which I have already referred. The first had been in 1978. There had been two in 1986. There was another in 1995 and, finally, there had been the recent one in 2005. On all five occasions the defendant (as it is convenient to refer to him) had touched a woman on the bottom, on one occasion on the thigh and on one occasion in the groin area. They were all brief touchings done in public places, over the clothing. They were, however, touchings in very private areas and they no doubt caused a mixture of reactions which will undoubtedly have included anger, offence and in some cases anxiety.
7. In interview with the police officer after the most recent conviction, the defendant had admitted that he sometimes got an urge to touch a woman and in effect he said that he did not on occasion resist it. He also disclosed that he had a habit of watching adult pornographic material and he revealed a degree of sexual frustration, since his girlfriend, who suffered from mental disability herself, had had to be admitted to hospital.
8. The sexual offences prevention order which was sought was an order prohibiting the defendant from: (1) entering any railway station, save in the circumstances set out in paragraph 2; and (2) from travelling or attempting to travel by train or any public railway, save in an emergency or, alternatively, with the oral or written authorisation of the Metropolitan Police Public Protection Unit.
9. The defendant lives in south London. He is unable at present to work because of his illness, but he has got a voluntary job for the Continuing Education and Training Service based at Croydon and some of what they ask him to do involves couriering documents to other parts of London. It appears that that is what he had been doing on the occasion when he committed the most recent offence. Of the five offences that he has committed, three of them were committed on trains and a fourth at a railway station. The fifth was in a launderette.
10. The judge and a justice, sitting together at Croydon Crown Court, gave careful consideration, it is plain, to whether this sexual offences prevention order should stand. Rather than deal with it in any summary manner, the judge delivered a meticulous judgment. The critical part of it, which comes after some eight and a half pages reviewing the evidence and the law, was as follows:

"So, these are undoubtedly offences which cause a great deal of distress to adult women who experience them. As observed by the prosecution, almost certainly women will move away from the appellant before any intimate touching occurs, but, nevertheless, it is a very upsetting and disturbing experience for them.

But when we go back to the test set out in the Act and ask whether we are satisfied that it is necessary in the particular circumstances of this case to make a Sexual Offences Prevention Order for the purpose of protecting adult women from serious sexual harm from the defendant, we are not satisfied, even on a civil standard, the balance of probabilities, that it is so necessary. The Act is concerned with serious sexual harm, which means serious psychological harm in the context of this case and on the basis of the evidence presented before us ... we cannot be so satisfied and for that reason we will allow the appeal."

11. On behalf of the Commissioner, Mr Buckett submits that the court misunderstood the nature of serious sexual harm in the test prescribed by the Act. It is certainly true that the court would not at the time of deciding this case have had the benefit of the decision of the Court of Appeal (Criminal Division) in R v Richards [2006] EWCA Crim 2519, [2007] 1 WLR 847. In that case Sir Igor Judge, P, made it clear that the relevant sections of the Sexual Offences Act (that is to say sections 104 and 106) are not to be a restrictively construed by reference to the different use of the expression "serious harm" where it appears in relation to dangerous offenders in the Criminal Justice Act 2003. There is, however, no sign at all that this Crown Court construed the Act in any way other than as ordinary, plain English words. In particular there is no hint of it having felt that the expression should be restricted in the manner disapproved subsequently in Richards.
12. Mr Buckett has submitted to us that there is a relevant distinction between harm and injury, and that the Act concentrates upon harm. Whether there is a useful distinction between those expressions which is of value in construing this section is a matter that it is quite unnecessary for us to decide. There is no suggestion that this court construed the Act as requiring that there be some lasting injury demonstrated. It is absolutely plain that a sexual offences prevention order is a preventive measure. That does not alter the fact that the critical word is "serious", and what is serious and what is not is for the evaluation in every case of the court before whom the question comes.
13. Mr Buckett supports his submission by suggesting that in summarising the facts of what had happened on the occasion of the last conviction, the learned judge, as he puts it, minimised what had happened. We have read and reread the relevant passage of what was undoubtedly an extempore judgment. We are unable to see any sign of the judge understating what had occurred, and in any event it is absolutely plain that the whole case in the court below was conducted on the basis that what this man did was, occasionally over many years, to accost a woman in a public place by putting his hand upon her, in the kind of places that we have indicated, over her clothes. That there was actual touching was fundamental to the whole case.
14. Next, the judge had the advantage of a number of assessments of risk which had been conducted using particular tools by probation officers. He rightly observed that some of them did not all that clearly distinguish between assessing the level of risk of a recurrence of the behaviour on the one hand and assessing the level of harm which might be caused on the other. But he rightly observed that the relevant passage of the relevant probation report, which appeared to be dealing with the latter of those two questions, namely the level of harm of which there was a risk, had assessed it as medium.
15. Mr Buckett rightly reminds us that the Act requires the court to assess the risk to the public and to "particular members of the public". Mr Buckett says there is some evidence that on the last occasion the defendant had selected this particular lady because he felt that she might be somebody who had personal problems as he himself had. That is based on something which the defendant had said to the probation officer. He had said that he felt that there might be some empathy (not his word, ours) between the two of them. Says Mr Buckett that is an illustration of the proposition that whilst many ladies touched in this manner could not begin to be said to suffer serious harm, there must be people who are more vulnerable than the average, perhaps a lot more vulnerable than the average, who will. And, says Mr Buckett, this last victim may have been one. She was certainly a lady who said in her statement that she had before this been prone to panic attacks, and as a result rarely went out alone. She had added that as a result of being touched on this occasion she felt as if she had been raped and did not want to go on a train alone. All that, as Mr Buckett rightly points out, is something that she had said on the day of the offence. There was not any evidence as to whether there was or was not any lasting effect upon her.
16. But Mr Buckett accordingly submits that there must be some women about who would suffer serious psychological harm if offended against in this manner. Bearing in mind that this an application for judicial review and not a rehearing of the exercise of judgment, that involves the submission that in every case of this kind of harassing but relatively low-level sexual touching, a sexual offences prevention order must follow, on the grounds that someone somewhere may suffer serious harm if it is repeated. That is not the test in the Act. The test in the Act is whether it is necessary for the protection of the public or particular members of the public from serious sexual harm. That involves an assessment of the level of risk of recurrence, first, and of the level of risk of harm if recurrence there be, second. The second exercise involves assessing how much harm is likely to be done and whether it can properly be called serious or not, and if it were the case that only a small number of people would be likely to suffer such harm that would be a relevant factor in assessing the risk. The court below clearly applied itself to this question, because it addressed the nature of the reaction of the unfortunate lady who had been touched by this defendant on the last occasion.
17. Mr Buckett's third submission is that the learned judge misdirected himself on the question of whether an order was necessary. He suggests that the judge concluded that because a probation order had been made and the defendant would be seen regularly by a probation officer, that by itself meant that an order was not necessary. It is enough to say that on inspection of the judgment that is not what the judge said. He recorded a submission to that effect made on behalf of the defendant, but he nowhere endorsed it. There is no sign of any such misdirection. On the contrary, having decided the case on the basis of the absence of a sufficient risk of serious harm, the judge addressed the question of proportionality, which he would not have done if he had considered the issue of necessity resolved by the making of a probation order.
18. We observe in passing that necessity is a significant fence for applicants for orders of this kind to surmount. Desirable is not what the statute says: see R v Halloran [2004] 2 Cr App R (S) 301.
19. Lastly, Mr Buckett takes us to R v Rampley [2006] EWCA Crim 2203, in which as he rightly observes a sexual offences prevention order had been made on facts not dissimilar to these and was upheld in the Court of Appeal (Criminal Division). That simply underlines the proposition which is crucial to these cases: the assessment of whether a particular case calls for a sexual offences prevention order (in this case preventing the defendant using trains without permission) is a question which has to be addressed by the court on the ground in each case. It is a question to which there are likely to be, and were in this case, two legitimate answers: yes or no. Some courts might in this case have concluded that there was a sufficient risk of serious sexual harm. Others on the other hand could perfectly properly come to the conclusion that this judge did, that the risk here is of sexual harm certainly, but sexual harm which is less than serious. In the same way, some might conclude that an order keeping the defendant off all trains unless he makes a prior application for permission to travel is disproportionate, given that a train is only one type of public place in which he is certain to encounter women. Others might take the view that it is proportionate.
20. In this court the question is whether the judge has either misdirected himself or arrived at a conclusion which was outwith the band of judgment properly available to him. With great respect to Mr Buckett's attempts to demonstrate otherwise, the submissions that the judge has misdirected himself have not succeeded. Nor, I am quite satisfied, is it possible to say that he has arrived at a decision which is outside the proper ambit of judgment available to him.
21. In those circumstances, I would refuse this application for judicial review.
22. MR JUSTICE TREACY: I agree.
23. LORD JUSTICE HUGHES: The reference to Rampley is [2006] EWCA Crim 2203.
24. Yes, Mr Porter.
25. MR PORTER: My Lord, just one matter that of costs.
26. LORD JUSTICE HUGHES: What is the position? What application do you make?
27. MR PORTER: Mr Burrell is publicly funded with a small contribution, and I ask for an order for his costs from central funds.
28. LORD JUSTICE HUGHES: Rather than against the police?
29. MR PORTER: I believed it to be from central funds, but.... It is the police....
30. LORD JUSTICE HUGHES: I think you must make your mind up which application you make, Mr Porter. Central funds is what you want, is it?
31. MR PORTER: Would your Lordship give me one moment?
32. LORD JUSTICE HUGHES: You see they have made an application for judicial review, it may be all public purse but it sometimes rather matters which public purse.
33. MR PORTER: My Lord, it is not a matter of great moment to Mr Burrell.
34. LORD JUSTICE HUGHES: It may not be. But if you are legally aided, unless I have mistaken the position, the usual position is that you owe a duty to the Fund to make a different application.
35. MR PORTER: I apologise, then an order against the claimant.
36. LORD JUSTICE HUGHES: Can you resist it Mr Buckett?
37. MR BUCKETT: No.
38. LORD JUSTICE HUGHES: Refused with costs. Thank you very much indeed for your help both of you.
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