England and Wales High Court (Queen's Bench Division) Decisions

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

		Royal Courts of Justice The Strand London
		5th April. 2000

1. THE LORD CHIEF JUSTICE: Mr B appeals by case stated against a sex offender order made by the [location] Justices sitting at [location] on 21 October 1999 under section 2 of the Crime and Disorder Act 1998. The appeal raises issues concerning the standard of proof which the justices should have applied before making the order, the lawfulness of the order made having regard to its terms and scope, and the correction of the written form of the order on 28 October.
2. The appellant was born on 25 March 1966 and is now aged 34. His record shows that he has committed 13 overtly sexual offences since 1981. On 15 August 1997, in the [location] Crown Court, he was sentenced to 18 months' imprisonment for attempting to procure an act of gross indecency with another man, contrary to section 13 of the Sexual Offences Act 1956 and the Criminal Attempts Act 1981. He was released from that sentence. He was then convicted in the [location] Crown Court on 18 June 1998 of commission of an act outraging public decency, contrary to common law, for which he was again sentenced to 18 months' imprisonment. From that sentence he was released on conditional licence on 28 July 1999. Following his release from that sentence he committed further acts to which later reference will be made.
3. On 3 August 1999 the appellant was recalled to prison for breach of his licence.
4. On 5 October 1999 the Chief Constable of [location] Constabulary made application against the appellant under section 2 of the Crime and Disorder Act 1998. The application begins by reciting that the appellant is a sex offender by virtue of his August 1997 conviction in [location]. That assertion has never been challenged. A sex offender is defined in section 3(1)(a) of the 1998 Act to mean someone convicted of a sexual offence to which Part I of the Sex Offenders Act 1997 applies. The appellant's conviction under section 13 of the 1956 Act was such an offence: see section 1 of the 1997 Act and paragraphs 1(1)(a)(vi) and 5(1)(a) and (b) of Schedule 1 to the 1997 Act.
5. The Chief Constable's application alleges that the defendant between 28 July and 3 August 1999, at [location] and [location], acted in such a way as to give reasonable cause to believe that an order under section 2 of the 1998 Act was necessary to protect the public from serious harm from him and accordingly application was made for a sex offender order containing six prohibitions. Some of those prohibitions form part of the order as eventually made, subject to modifications. Some of those requested prohibitions were refused by the justices outright. But the justices added one new prohibition to the order which they made.
6. The application gave a brief account of the acts said to have been committed by the appellant numbered 1 to 12 in the application. Some of those allegations the justices found proved as alleged. One the justices found proved in a modified form. Some of the facts alleged were found not proved.
7. The application was heard by the justices on 19, 20 and 21 October 1999. It will be necessary to return in more detail to the procedure adopted when making the order which is relevant to one ground of appeal.
8. The justices recorded the effect of the order in an original written form of which a copy is before us. The justices found that the applicant was a sex offender. They adjudged that he had acted in a manner (particularised in a number of paragraphs) which gave reasonable cause to believe that the order was necessary to protect the public from serious harm from him. They then set out their findings of primary fact in nine numbered paragraphs as follows:

1. On 28 July 1999 the defendant approached a young woman at [location] and initiated a conversation of an indecent nature.

2. On 28 July 1999 in [location], the defendant was observed watching two young girls with his hand inside his trouser flies.

3. On 28 July 1999 in [location] at various times between 1939 hours and 2006 hours, the defendant was observed watching children and young females and loitering and hiding in their vicinity.

4. On 31 July 1999 in [location] the defendant was observed hiding in the vicinity of the [name] Garage in [location].

5. On 1 August 1999 near the [location], the defendant befriended a ten year old boy, and was in his company for approximately one and a half hours.

6. On 2 August 1999 the defendant was seen in [location] at various times watching young boys, hiding in bushes and near the canal watching two children with his hand on his groin.

7. On 2 August 1999 at [location], the defendant was seen to masturbate, then lick fluid from his hands.

8. On 3 August 1999 in [location], the defendant was seen to enter private premises, including a residential old people's home, without consent for a short time.

9. On 3 August 1999 at the [name] Shopping Centre in [location], the defendant was observed watching a female and young children.

The justices then made an order in these terms (which I read from the original written draft of the order):

"And it is ordered that the defendant is prohibited from

1. Not to seek contact or communication with a child or young person under the age of 16 years.

2. Not to associate or befriend a child or young person under the age of 16 years.

3. Not to reside in any private dwelling where a child or young person under the age of 16 years is present.

4. Not to undertake any activity (paid, voluntary or recreational) which by its nature is likely to bring you into contact with a child or young person under the age of 16 years."

9. I pause to observe that the order as so drafted involves an obvious grammatical nonsense. The order is expressed to continue until 21 October 2004 and concludes by saying:

And, by virtue of section 2(5) of the Crime and Disorder Act 1998, while this Order has effect, Part I of the Sex Offenders Act 1997 shall have effect as if:

(a) the defendant was subject to the notification requirement of that Part: and

(b) in relation to the defendant, the relevant date (within the meaning of that Part) were the date of service of the Order."

10. The signature of the Chairman of the Bench follows and there is a note which adds:

If without reasonable excuse the defendant does anything which he is prohibited from doing by this Order, he shall be liable on conviction to a term of imprisonment not exceeding five years or to a fine or both."

11. The written order was served on the appellant at court. On 25 October 1999 he was released from prison. On 26 October, the following day, he was arrested for breach of the order. He appeared before [location] Justices on 27 October 1999 and was remanded in custody. On his behalf his solicitor applied for bail. By this time the solicitor had noticed the obvious error in the wording of the written order and submitted on the bail application that it was an abuse to proceed on an order which was a nullity. That submission was not accepted. The effect of making the submission, however, was that the defect in the wording of the written order was drawn to the attention of the police, who drew it to the attention of the justices, who corrected the written form of order on 28 October 1999 by deleting the words "prohibited from" from the language of the written order. On 29 October the corrected form of order was notified to the appellant's solicitor.
12. A request to the justices for the statement of a case was duly made, and a case was stated on 21 December 1999. In the case the justices summarised the effect of the Chief Constable's application and reproduce the findings of fact set out in the order in paragraph 2(a) to (i). These reproduce the findings numbered 1 to 9 in the order.
13. The justices then made an additional finding to the following effect:

j) On the Rapid Risk Assessment for Sexual Offence Recidivism, an actuarial risk scale for sexual offence recidivism devised by Dr Karl Hanson, Department of the Solicitor General of Canada, the Appellant scored a total of 5 points, which meant that he has a high likelihood of re- offending, some four times in excess of the expected base rate."

14. In paragraphs 2(k) and (l) the justices summarised the appellant's record, already referred to, and the justices continued to make these findings:

m) On the basis of the medical evidence of a consultant forensic psychiatrist, the Appellant has a history of drug and alcohol abuse and this, coupled with his impulsive behaviour, exacerbates the risk of reoffending on release back into the community, particularly with no support in terms of statutory supervision. The Appellant has failed to respond to any treatment intervention so far and continues to deny involvement in past offending or minimises his responsibilities for it. The public most at risk from his offending are young children.

n) The risk of reoffending was so high that it gave reasonable cause to believe that an Order was necessary to protect the public from serious harm from him. In this context the serious harm identified was the danger of the Appellant causing serious psychological injury, to one of the most vulnerable sections of the public, namely young school-age children.

o) The Appellant is a sex offender (within the meaning of section 3(1) of the Crime and Disorder Act 1998) by reason of his conviction for attempting to procure gross indecency and it was more probable than not that he has acted since the relevant date in such a way as to give reasonable cause to believe that an Order is necessary to protect the public from serious harm from him."

15. The justices then summarised the parties' respective contentions, some of which, on the part of the appellant, had been advanced since the conclusion of the hearing. In paragraph 6 the justices expressed their opinion in these terms:

The Justices were of the opinion that --

(a) These were civil proceedings, governed by the civil evidence rules, and the Appellant was not in immediate danger of losing his liberty if an Order was made. Most of the acts complained of, within the complaint, were not in themselves criminal in nature. The Justices therefore made the following pronouncement on the standard of proof: 'We noted from the beginning that these proceedings are preventative in nature, in order to protect the public. Parliament could have enacted that the criminal procedure should apply in these proceedings and decided against it. We do not accept that a criminal standard of proof has to apply. Having said that, the consequences of a breach of an Order, which in itself would have to be proved to a criminal standard, are severe. Therefore, we accept that the standard of proof should be higher than the minimum accepted in a civil case and nearer the criminal standard'.

The Justices applied this approach in making their findings of fact.

(b) The prohibitions contained within the Order announced in Open Court on 21st October 1999 were sufficiently specific, understandable and enforceable and did not contain a double negative. In announcing the prohibitions referred to above, extracts from the written Order, signed by the Chairman, were read out to the Appellant. The written Order, but not what was read out, contained a double negative. The parties were given a written copy of the Order in Court, and the Appellant's counsel was given approximately 20 minutes in the court cells to go through the Order with him. Counsel and the Appellant returned to the court and the Appellant confirmed he understood it. The written Order was subsequently altered on 28 October 1999 to delete the words 'prohibited from' to avoid the double negative. This was to give effect to the Order announced in Court and was not amending or varying the Order in any way. The clerical error occurred due to the wording of the Order having been taken from the prescribed form contained within Schedule 3 of The Magistrates' Courts (Sex Offender and Anti-Social Behaviour Orders) Rules 1998, without the words 'prohibited from' being taken out before the prohibitions were inserted.

c) The Order made was not incompatible with the provisions or articles of the Human Rights Act 1998, notwithstanding that these were not raised by the Appellant during the hearing but have been subsequently referred to in the request to state a case. The reasons for the Justices' opinion are:-i)The provisions of the Human Rights Act 1998 are not yet in force;

ii)As the provisions are not in force the Court is not required to give effect to the Act when construing primary legislation;

iii)Had the Justices been required to give effect to the Act it is not accepted that article 5 is engaged;

iv)The articles which would need to be considered are 8 and 11, both of which are qualified rights, and in applying the structured approach i.e. is the interference prescribed by law, necessary in a democratic society, does it have a legitimate purpose and is it proportional, this Order is not incompatible and therefore does not breach the Appellant's human rights.

(d) Accordingly the Justices made the following Order:-...."

16. They then reproduced the four prohibitions which they imposed.
17. The justices posed the following questions for the opinion of the High Court:

a) Whether the Justices, in making findings of fact which will lead to the making of a Sex Offender Order, have to be satisfied so that they are sure [that] those matters which gave reasonable cause for the making of an Order occurred.

b) Whether the wording of the Order is satisfactory, meaningful, sufficiently specific, understandable and enforceable and whether the same is too wide as to be incompatible with article 5(1) and 11 of the European Convention on Human Rights.

c) Whether the Justices are entitled to amend a written Order in civil proceedings and if so from what date the Order as amended took effect and whether the effect was retrospective to the date of the original Order and whether in the case of a Sex Offender Order the only means of amendment is in accordance with the Magistrates' Courts (Sex Offender and Anti-Social Behaviour Orders) Rules 1998."

18. It is necessary to refer to the legislative framework. Part I of the 1998 Act is entitled "Prevention of Crime and Disorder". Section 2 provides:

(1) If it appears to a chief officer of police that the following conditions are fulfilled with respect to any person in his police area, namely --

(a) that the person is a sex offender; and

(b) that the person has acted, since the relevant date, in such a way as to give reasonable cause to believe that an order under this section is necessary to protect the public from serious harm from him,

the chief officer may apply for an order under this section to be made in respect of the person.

(2) Such an application shall be made by complaint to the magistrates' court whose commission area includes any place where it is alleged that the defendant acted in such a way as is mentioned in subsection (1)(b) above.

(3) If, on such an application, it is proved that the conditions mentioned in subsection (1) above are fulfilled, the magistrates' court may make an order under this section (a 'sex offender order') which prohibits the defendant from doing anything described in the order.

(4) The prohibitions that may be imposed by a sex offender order are those necessary for the purpose of protecting the public from serious harm from the defendant.

(5) A sex offender order shall have effect for a period (not less than five years) specified in the order or until further order; and while such an order has effect, Part I of the Sex Offenders Act 1997 shall have effect as if --

(a) the defendant were subject to the notification requirements of that Part; and

(b) in relation to the defendant, the relevant date (within the meaning of that Part) were the date of service of the order.

(6) Subject to subsection (7) below, the applicant or the defendant may apply by complaint to the court which made a sex offender order for it to be varied or discharged by a further order.

(7) Except with the consent of both parties, no sex offender order shall be discharged before the end of the period of five years beginning with the date of service of the order.

(8) If without reasonable excuse a person does anything which he is prohibited from doing by a sex offender order, he shall be liable --

(a) on a summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or

(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.

(9) Where a person is convicted of an offence under subsection (8) above, it shall not be open to the court by or before which he is so convicted to make an order under subsection (1)(b) (conditional discharge) of section 1A of the 1973 Act in respect of the offence."

19. It is unnecessary to make reference to the terms of section 3. Section 4 provides for appeal to the Crown Court against the making by justices of a sex offender order.
20. The details of the Sex Offenders Act 1997 are not immediately relevant, save to observe that it is a criminal offence for a person subject to the notification requirements of that Act to fail to comply. It is also unnecessary to make detailed reference to the Human Rights Act 1998, although it was referred to in argument before us.
21. Rule 2(3) of the Magistrates' Courts (Sex Offender and Anti- social Behaviour Orders) Rules 1998 (SI 1998/2682) provides that a sex offender order shall be in the form set out in Schedule 3 to the Rules or a form to the like effect. Schedule 3 sets out the form which the justices used when their order was first reduced to writing, including a sentence which begins "And it is ordered that the defendant is prohibited from ....".
22. By Rule 5 it is provided that any copy of an order required to be sent under the Rules to the defendant shall be either given to him in person or sent by first class post to his last known address and, if so given or sent, shall be deemed to have been received by him.
23. With that by way of lengthy preface, I turn to the first issue, which concerns the standard of proof. It is common ground between the parties that Parliament intended an application for a sex offender order in the magistrates' court to be a civil proceeding and intended the civil standard of proof to apply. But Miss Booth QC for the appellant submits: (1) that, whatever its intention, Parliament has failed to express in the statute as enacted any stipulation that the civil standard of proof shall apply; (2) that, as a matter of domestic law, an application for a sex offender order is to be regarded as a criminal proceeding; (3) that if it is not as a matter of domestic law to be regarded as a criminal proceeding, it is a civil proceeding of such a character that the criminal standard of proof should be applied; and (4) that, whatever the position in domestic law, this proceeding would for purposes of the European Convention be regarded as a criminal proceeding and so should attract the criminal standard of proof.
24. As to the first point Miss Booth is correct. Parliament has not expressly enacted what standard of proof shall be applied on an application for a sex offender order. In relation to her second point Miss Booth relies on the severe consequences which may follow for the defendant on the making of a sex offender order: the duty to notify under the 1997 Act on pain of criminal penalty; the restriction on a defendant's freedom of movement and activity; and the possible penalty of up to five years' imprisonment on proof that the order has been broken. These are all important and legitimate considerations, but they do not persuade me that, as a matter of English domestic law, this is to be regarded as a criminal proceeding. Under that law a criminal proceeding is one in which a prosecutor accuses a defendant of committing a specific crime, on conviction of which the defendant will be susceptible to punishment. Here the application is made by a chief officer of police, but he is not acting as a prosecutor. The defendant is not accused of committing any specific crime. If the outcome of the application is adverse to the defendant, he does not become susceptible to punishment. It is true that in section 18(1)(a) of the Supreme Court Act 1981 the expression "criminal cause or matter" has been interpreted more widely, so as to cover matters such as extradition. In my judgment, however, to assess the character of the present proceedings it is necessary to look more closely into the nature of the issue to be decided by the magistrates' court. Part I of the 1998 Act is concerned with the prevention of crime and disorder, not the trial and punishment of those convicted. Magistrates' court proceedings are initiated under the section by complaint, which is the initiating process for civil matters in the magistrates' court: see section 51 of the Magistrates' Courts Act 1980. The condition provided in section 2(1)(b) of the 1998 Act is in my judgment appropriate as a basis for administrative action, not criminal conviction. Furthermore, the problem to which section 2 is directed is not the detection, apprehension, trial and punishment of those who have committed crimes, but the restraint of those who have a proven record of sex offending and whose conduct founds a reasonable belief that a measure of restraint is necessary to protect members of the public against the risk of serious harm caused by further sex offending.
25. There is no room for doubt about the mischief against which this legislation is directed, which is the risk of re-offending by sex offenders who have offended in the past and have shown a continuing propensity to offend. Parliament might have decided to wait until, if at all, the offender did offend again and then appropriate charges could be laid on the basis of that further offending. Before 1998 there was effectively no choice but to act in that way. But the obvious disadvantage was that, by the time the offender had offended again, some victim had suffered. The rationale of section 2 was, by means of an injunctive order, to seek to avoid the contingency of any further suffering by any further victim. It would also of course be to the advantage of a defendant if he were to be saved from further offending. As in the case of a civil injunction, a breach of the court's order may attract a sanction. But, also as in the case of a civil injunction, the order, although restraining the defendant from doing that which is prohibited, imposes no penalty or disability upon him. I am accordingly satisfied that, as a matter of English domestic law, the application is a civil proceeding, as Parliament undoubtedly intended it to be.
26. In support of her point 3 Miss Booth submitted that the English courts had recognised some proceedings as civil but as nonetheless attracting the criminal standard of proof. She relied in particular on Percy v Director of Public Prosecutions [1995] 1 WLR 1382, in which justices exercised their power under section 115 of the Magistrates' Courts Act 1980 to require the defendant to enter into a recognisance to keep the peace. The defendant refused to consent to being bound over in this way and was committed to prison. The issue arose on the standard of proof required to establish that the natural consequence of the defendant's conduct was violence. In a reserved judgment of the court Collins J said at page 1395:

The justices were also addressed on the correct standard of proof. They decided that, as they were hearing a complaint, the civil rather than the criminal standard of proof was appropriate. We were told that there is no direct authority on this point. In our judgment, it is not necessary to categorise the proceedings in order to determine the standard of proof applicable. In In re Bramblevale Ltd [1970] Ch 128 the Court of Appeal decided that to establish a civil contempt of court proof beyond reasonable doubt was required. This was because imprisonment might result. Winn LJ stated, at p137G, that the proof must be 'consistent with such standard as the court .... regards as consistent with the gravity of the charge.' A failure to comply with the order to enter into a recognisance can result in imprisonment. The order is made to uphold the peace and so one is immediately in the realm of law enforcement in the public rather than a private interest. We note, too, that in Reg v Bolton Justices, Ex parte Graeme (1986) 150 JP 190 the Court of Appeal decided that an application relative to a complaint under section 115 of the Magistrates' Courts Act 1980 was prima facie in a criminal cause or matter and that in Everett v Ribbands [1952] 2 QB 198, 206 Denning LJ described the powers as bearing 'many of the characteristics of a criminal proceeding.' The fact that it is commenced by complaint rather than information is not conclusive: see Botross v Hammersmith and Fulham London Borough Council, The Times, 7 November 1994. Our attention has been drawn to Reg v Marlow Justices, Ex parte O'Sullivan [1984] QB 381, in which the court decided that the appropriate standard in determining whether a recognisance should be forfeited was the civil standard, at least where the only result of such forfeiture was an order to pay money. We must confess that we do not find that decision entirely satisfactory since it does not have regard to section 120(4) of he Magistrates' Courts Act 1980, which applies the enforcement powers (including imprisonment) relevant to a fine to the estreating of a recognisance and, in so far as it applies, Reg v Southampton Justices, Ex parte Green [1976] QB 11, it relies on reasoning which has subsequently been disapproved: see Carr v Atkins [1987] QB 963.

There are pointers either way to whether the proceedings should be labelled criminal or civil. We do not need to decide which is appropriate, although we would incline to criminal, largely for the reasons given in Reg v Bolton Justices, Ex parte Graeme (1986) 150 JP 190. In our judgment, the consequences and circumstances of the proceedings require proof to a high standard. Accordingly, whatever the nature of the proceedings, we consider that the proper standard to be applied is the criminal standard, namely proof beyond reasonable doubt."

27. In my judgment that authority does not carry the appellant far enough. In Percy the defendant had a choice between agreeing to be bound over and going to prison. Her refusal to agree to be bound over had an immediate and obvious penal consequence without any intervening stage. The threat of imprisonment was no doubt intended to be coercive but it was also punitive. In my judgment that is a crucial distinction between Percy and any injunctive procedure such as in play here.
28. In support of her point 4 Miss Booth submitted, rightly, that the European Court of Human Rights does not regard itself as bound by the classification of proceedings in domestic law. In deciding whether there is a criminal charge for purposes of Article 6 of the Convention the court has regard to the classification of proceedings in domestic law, but also to the nature of the offence itself and the severity of the penalty which may be imposed: see Lester and Pannick Human Rights Law and Practice (1999) paragraph 4.6.13. Here the proceedings are in my judgment classified as civil in domestic law. No offence is charged and the making of an order does not depend on proof of any offence. No penalty may be imposed. I am aware of no case in which the European Court has held a proceeding to be criminal even though an adverse outcome for the defendant cannot result in any penalty.
29. It is noteworthy that the appellant does not complain of any breach of Article 6, which would have been the relevant Article (assuming it were in force) if the procedure adopted at the trial was unfair. But the European Court jurisprudence does not even in criminal proceedings require member states to apply what we call the criminal standard of proof if the standard of proof is sufficiently strong in the eyes of the domestic law to establish what has to be established. I would not therefore accept Miss Booth's arguments on this point.
30. It should, however, be clearly recognised, as the justices did expressly recognise, that the civil standard of proof does not invariably mean a bare balance of probability, and does not so mean in the present case. The civil standard is a flexible standard to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters: Bater v Bater (1951) P 35, Hornal v Neuberger Products Ltd [1957] 1 QB 247, and Khawaja v Secretary of State for the Home Department [1984] AC 74.
31. In a serious case such as the present the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition in section 2(1)(a) is fulfilled, a magistrates' court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard. In deciding whether the condition in section 2(1)(b) is fulfilled the magistrates' court should apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them.
32. I turn to the second issue which concerns the lawfulness of the justices' order. Miss Booth accepted that section 2 of the 1998 Act provided adequate legal authority for making a sex offender order, but she submitted that, to satisfy the requirements of domestic law and the Convention (assuming that to be fully in force), an order had to be clear and readily intelligible in its terms, specific as to time and place, and no wider than was necessary to restrain the particular harm which it was feared the appellant might cause. This order, it was submitted, failed the tests of both domestic law and the Convention because it was too vague, too imprecise, and imposed a wholly disproportionate fetter on the appellant's personal freedom. In argument before us, reliance was not placed on Article 5 of the Convention, to which the magistrates were referred, but on Article 8 and Article 11.
33. With much of this submission I agree. If anyone is the subject of a prohibitory court order for breach of which he is liable to severe punishment, that person is entitled to know, clearly and unambiguously, what conduct he must avoid to comply with the order. Such clarity is essential for him. It is scarcely less essential for any authority responsible for policing compliance with the order and for any court called upon to decide whether the terms of the order have been broken. The order should be expressed in simple terms, easily understood even by those who, like the appellant, are not very bright. If the order is wider than is necessary for the purposes of protecting the public from serious harm from the defendant, the order will not meet the requirements of section 2(4) of the 1998 Act and will fall foul of the Convention requirement that the means employed, if restrictive of guaranteed rights, should be necessary and proportionate to the legitimate ends towards which they are directed. But I do not accept that the prohibitions in this case were in any way unclear or vague or unintelligible. They were as specific as the nature of the case permitted if the object of the order was to be effectively served. It would not in my view have been sensible to specify any place in which or times at which the prohibitions were to apply. Compliance with the order would be most unlikely to give rise to practical difficulty since it is positive action which is restrained. The analogy with matrimonial injunctions, which are directed to the protection of a specific person or persons, is not apt. When the terms of the prohibitions were communicated to the appellant's counsel, and when he explained their effect to the appellant at the time, no challenge was made or doubt expressed about their scope. On a reasonable reading it was clear what the appellant was not to do. Had he regarded the terms of the order as obscure or unduly restrictive it was open him to apply for a variation, and, if that application was unsuccessful, to appeal.
34. I turn to consider the Convention, making the assumption (but not holding) that Articles 8 and 11 are in force. The prohibitions plainly infringe the appellant's rights under Article 8. It is much more doubtful (and I do not find it necessary to decide) whether they infringe any guaranteed right under Article 11. I regard the prohibitions in this order as in accordance with the law or prescribed by law since they are in my judgment authorised by the plain terms of section 2 of the 1998 Act. They have the legitimate object of preventing crime, protecting health and morals and protecting the rights and freedoms of others. They are necessary because without these prohibitions the conduct prohibited cannot be prevented. They go no further than is strictly necessary to serve the end they are intended to serve. In my judgment this ground of challenge must fail. Ground 3 concerns the correction of the order. It is first necessary to rehearse the precise course of events at the end the hearing. When the evidence was concluded, submissions were made to the justices. They retired overnight from 20 to 21 October. On the morning of 21 October the justices announced which facts they found proved. The solicitor representing the Chief Constable then asked the justices to make prohibitory orders in the terms sought in the application. Counsel for the appellant made submissions on the width of the requested prohibitory orders, suggesting that they be curtailed. The justices retired again. In the absence of the appellant and the justices the clerk, after a period of retirement, informed the legal representatives of the parties of the terms of the prohibitory orders which the justices proposed to make. Neither representative made any comment. The clerk retired and had the order typed up. The justices and the appellant returned into court. The Chairman of the justices read out the order which the justices proposed to make. In reading the order she did not read the double negative in the order as typed. She said what the appellant was to be prohibited from doing, omitting (it would seem) the words "prohibited from" on the printed form and, as one would suppose, inserting the word "with" after "associate" in the second prohibition. The Chairman asked the appellant's counsel if he would ensure that the appellant was fully aware of the effect of the order. The justices then retired so that the appellant's counsel could explain the effect of the order to the appellant. When counsel returned into court the Chairman asked if he had explained the order and if the appellant had understood. There was then a discussion about the signing of the order by the appellant and the giving of notification. The Chairman signed a copy of the order and the history thereafter has already been summarised.
35. On this issue the submission of Miss Booth for the appellant is brief and robust: The order of the court was the document which the Chairman signed and of which the appellant received a copy. If these proceedings were civil the justices had no power to amend or vary the order: see Stone's Justices' Manual, paragraph 1-583 and the notes thereto. They had no power in civil proceedings as they would have had in criminal proceedings under section 142 of the Magistrates' Courts Act 1980 to rectify any error. The requirement in the Rules that the order shall be in the form set out in Schedule 3 or in a form to like effect indicates that it is the written order and not any spoken order which counts. In its original written form the order was nonsensical and therefore a nullity; it could not be given effect. This was accepted to be a very technical argument with no merit to support it, but if, as submitted, the argument was correct, it should prevail.
36. In my judgment the argument is not correct. The order of the court was, as I think, the order announced orally by the Chairman, which was to the same effect as the corrected written order and not the order as first reduced to writing. Had there been a period of delay after oral announcement of the order and before it was reduced to writing and signed and sent to the appellant, and had the appellant broken the order during that period, he could not have resisted prosecution on the ground that no order was in force. This approach, which every consideration of common sense appears to support, finds clear support also in the authorities.
37. In R v Lanyon (1872) 27 LT 355 the father of a natural child was ordered to pay maintenance at the rate of 2 shillings per week. The order was wrongly recorded as requiring him to pay 2s 6d per week. The matter came back before the justices who ordered that the order be correctly drawn up and signed, which it was, bearing the same date as the original order. In giving judgment it was stated:

The applicant in this case had a right to have the order made in her favour correctly drawn up. The order first drawn up did not embody correctly the terms of the order made, and in fact no such order as that first drawn up was ever really made by the justices, their signatures having been appended by mistake to a wrong order. It is an error, therefore, to allege that a second order was made. The only order made was the oral order of the 30th Jan. and an incorrect record of that order having ben delivered to the applicant I think that she was entitled to apply to the same justices and to request that a correct record of their order should be delivered to her. This is all she did, and as there was in fact no second order made it follows that no fresh summons and fresh hearing were necessary."

38. A similar conclusion was reached in Jolliffe v Jolliffe [1965] P 6. A non-cohabitation clause formed no part of the order orally made in that case, although it was included in the written order. It formed no part of the order of the court. In due course the written order was rectified and it was held that the justices were bound to correct the incorrect record of their order.
39. A similar conclusion was reached in Walsh v Barlow [1985] 1 WLR 90 where a defendant was alleged to have broken a community service order. It was contended that there was no breach because no written order had been served on the defendant as required by the statute. The ruling was that the order was effective as soon as the court gave judgment and spoke the order.
40. It is not suggested here that the appellant was in any way misled by the error in the written order. Had he been, and had he broken the terms of the order as a result of such misunderstanding, he would no doubt have had a reasonable excuse for his breach. But that is not this case. The order was that which the justices announced and which counsel was at pains to explain to the appellant. I would in summary give the following answers to what I take to be the substantial questions raised by the justices for the opinion of this court:
41. (a) In deciding whether it is proved that the conditions mentioned in section 2(1) of the Crime and Disorder Act 1998 are fulfilled, the magistrates' court is not obliged to apply the criminal standard of proof. In relation to the condition in section 2(1)(a) it should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard. In relation to the condition in section 2(1)(b) it should apply the civil standard with the strictness appropriate to the seriousness and implications of the matters to be proved.
42. (b) The wording of the order announced orally by the justices and in its amended written form was sufficiently clear, meaningful, specific, intelligible and enforceable to satisfy the requirements of domestic law and the European Convention on Human Rights and meets the requirements of Article 11(2) of the Convention (if that Article is applicable). Article 5 is accepted to be inapplicable.
43. (c) The justices were entitled to amend the written version of their order so that it expressed the order made and announced in open court on 21 October 1999, which was itself the order of the court and took effect from the date and time of its announcement, save in relation to the requirement to notify, which is governed by section 2(5) of the 1998 Act.
44. I would so answer and dismiss the appeal.
45. MR JUSTICE ASTILL: I agree.
46. MISS DIXON: My Lords, I am asked to seek an order for costs, not to be enforced without the leave of the court. It may be a theoretical order.
47. THE LORD CHIEF JUSTICE: I see no point whatever in making such an order.
48. MISS DIXON: Very well, my Lord.
49. MISS BOOTH: I am sure it is entirely theoretical. My Lord, the question of anonymity arises.
50. THE LORD CHIEF JUSTICE: Yes. I do not know whether you have been able to agree a form of words?
51. MISS BOOTH: We have agreed a form of words. May I hand it up to your Lordships? (Same handed)
52. THE LORD CHIEF JUSTICE: Thank you. Is this agreed between you both?
53. MISS BOOTH: This is agreed between both. We have mentioned it to the Times Law reporter.
54. THE LORD CHIEF JUSTICE: Yes. Have the representatives of the press seen this order?
55. REPRESENTATIVE OF THE PRESS: I have not.
56. THE LORD CHIEF JUSTICE: Let the representative of the press see it. (Same handed) I do not know if there is anything you wish to say about the form of the order?
57. REPRESENTATIVE OF THE PRESS: No, it is understood.
58. MISS BOOTH: My Lord, I should say that Mr Galloway has given his telephone number to The Times' law reporter. He is going to be doing the plea and directions hearing. My Lord, the Crown Court trial should be on in weeks rather than in months and the order should be limited to that extent.
59. THE LORD CHIEF JUSTICE: I had some little doubt about paragraph 1 of the order. It prohibits a press report saying "Mr B has appealed against a sex offender order unsuccessfully". I do not myself see why that should not be published.
60. MISS BOOTH: My Lord, what we are concerned with is that if he is referred to as "Mr B", he cannot be linked to the Crown Court proceedings.
61. THE LORD CHIEF JUSTICE: Let us drop "Mr B", why should it not be published that "Mr B has appealed unsuccessfully against the making of a sex offender order"? How does that prejudice him? That is the first thing the jury will -- they will not be told he has appealed but they will be told that he is the subject of an order because he is going to be prosecuted for breach of it.
62. MISS BOOTH: Our concern is what was said in your Lordship's judgment about Mr B --there are things that may not come out in the Crown Court proceedings. The less easy it is to link him --
63. THE LORD CHIEF JUSTICE: About his previous record you mean? Yes, I do see that. You say it is only a very short time?
64. MISS BOOTH: Yes. It is only going to be a matter of weeks.
65. THE LORD CHIEF JUSTICE: Very well. We will make the order in those terms. Do you need an order for legal aid taxation?
66. MISS BOOTH: I think I do.
67. THE LORD CHIEF JUSTICE: We shall make that order.
68. MISS BOOTH: My Lord, there is no other avenue of appeal open to me. This is a civil case and the decision of this court is final.
69. THE LORD CHIEF JUSTICE: That is right, is it?
70. MISS BOOTH: Yes. My Lord, it is section 111 -- appeal by case stated. In a criminal matter there is a right of appeal, but only if the court certifies a point of law of general public importance, to the House of Lords. In a civil case it is section 28A(4) of the Supreme Court Act 1981. The decision of the Divisional Court is final.
71. THE LORD CHIEF JUSTICE: Yes. I am sorry about that. Of course you could have had two rights of appeal if you had gone to the Crown Court first. Thank you both very much indeed. We are very grateful for the help we have received.

(The following order was made relating to the reporting of the appeal)

72. It is ordered, pursuant to sections 11 and 4(2) of the Contempt of Court Act 1981, that until the conclusion of the criminal proceedings before Exeter Crown Court in Case Number T2000006, the following are prohibited:
73. 1.The publication of the Applicant's name (or any other material calculated to identify him) in connection with these proceedings.
74. 2.The publication of any of the findings of fact made by the Justices in these proceedings (which findings are set out at paragraph 2 subparagraphs (a) to (o) of the Case Stated dated 21 December 1999).