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

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/07/2013

Lord Justice McCombe:

(A) Introduction

1. This is an application by the claimant, Mr Paul Richards, for Judicial Review of the order of the First Defendant, Teesside Magistrates Court, of 15 October 2012 whereby the court varied a sexual offences prevention order ("SOPO") of 12 March 2012 made against the Claimant. The variation was made upon the application of the Second Defendant, the Chief Constable.
2. The SOPO as originally made contained a number of provisions which, the Chief Constable had successfully persuaded the court, were necessary for protecting the public from serious sexual harm from the claimant. The only provision of that order which it is necessary to quote is the prohibition, in paragraph (2), 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. By the variation of the order, now under challenge, the court added additional prohibitions as follows:

"(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 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. "

A "Location Monitoring Device" (or "LMD") is more commonly known as a "tag" and that expression is used where necessary in this judgment.

4. The claimant contends that these additional provisions are unlawful, as being outside the powers conferred by the relevant provisions of the Sexual Offences Act 2003 ("SOA 2003") and/or as infringements of his rights under Article 8 of the European Convention in Human Rights ("ECHR").

(B) Background Facts

5. The facts of the case can be shortly stated and are uncontroversial.
6. The claimant is 47 years old and has a long history of offending, including offences of violence, kidnapping, dishonesty, harassment and twelve sexual offences, and failures to comply with notification requirements under the sex offender registration provisions. His last sentence was imposed on 26 April 2012 for an offence of theft, in respect of which he received a community order with a residence requirement. He has been assessed, in various reports, as a very high risk offender and as presenting "a very high risk of causing serious harm to the Public and known adults": see paragraph 8 of the Sexual Offence Prevention Order Risk Assessment of 2 August 2012, prepared for the variation hearing by the Probation Service. Under the statutory arrangements for assessing risks presented by sex offenders, under the Criminal Justice Act 2003 ("CJA 2003") section 325 and following, the claimant has been registered as a "critical public protection case" by the Ministry of Justice on the basis of imminent risk of serious harm caused by potential re-offending.
7. It was the prospect of the expiry of the community order and of an earlier supervision requirement imposed in October 2011, and with that the lapse of residence requirements, that led to the variation application.
8. It can be added that the claimant is the subject of three separate individual restraining orders against him for the protection of specific adult women who have been the subject of harassment or violence by him. He is also a drug user.
9. The claimant has also been assessed as meeting the criteria for a diagnosis of antisocial and narcissistic personality disorder and of severe psychopathy, with a resultant very high risk of sexual recidivism. Other medical evidence indicates that the claimant displays high levels of deceit and manipulation, shows minimal empathy or remorse for his offending and seeks to justify it. The relevant witness concluded in her witness statement that the claimant "requires the highest levels of scrutiny and effort to prevent further sexual offending".
10. After a number of arrests for theft and a sentence of 12 weeks imprisonment for various offences imposed on 14 May 2012, the claimant discussed co-operatively with the police a potential tagging, but subsequently changed his mind and objected to it. As a result, the application was made to vary the SOPO. The Justices acceded to the application, rejecting the claimant's submissions as to the legality of the variation applied for and the contention that the variation would offend against Article 8 of the ECHR.
11. On 26 October 2012 the claimant was arrested for a suspected breach of the SOPO, alleged to have been committed when his presence is said to have been detected in an area known to be frequented by prostitutes. We were informed at the hearing that the claimant has now been charged with three offences of breaking the terms of the SOPO. By the order granting permission to bring the present application for judicial review the proceedings for breach were adjourned pending the outcome of this application.

(C) The Statutory Provisions

12. The statutory provisions governing the making of SOPOs are to be found in section 104 and following of the SOA 2003. Such orders may be made upon conviction for certain offences or (as in the present case) on the application of a chief officer of police. So far as material section 104 of the Act provides as follows:

"(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 claimant was, and is, a "qualifying offender" for these purposes.

13. Section 106 includes the following:

"(1) In this Part, "sexual offences prevention order" means an order under section 104….

"…."

(3) "Protecting the public or any particular members of the public from serious sexual harm from the defendant" 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."

Then section 107(1) and (2) state:

"(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."

It is provided by section 108 that the chief police officer of the offender's place of residence can apply for variations to a SOPO and section 108(5) provides that,

"(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)."

14. 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.

(D) The Arguments

15. For the claimant, Mr Southey QC takes two short points. First, he submits that there is no power conferred by the Act to require tagging, and secondly, and in any event, tagging amounts to a breach of the rights of the claimant under Article 8.
16. Mr Southey submits that other statutes which authorise tagging make express provision to that effect: see e.g. section 3AB of the Bail Act 1976 (permitting tagging as a condition of bail), section 62 of the Criminal Justice and Court Services Act 2000 (permitting tagging of offenders released from custody on licence) and section 2 of and paragraph 12 of Schedule 1 to the Terrorism Prevention and Investigation Measures Act 2011 (permitting the tagging of persons subject to measures imposed under that Act). The short consequential submission is that where Parliament intends to authorise tagging it says so expressly. It is supplemented by reference to the principle that fundamental rights cannot be overridden by general or ambiguous words used in an Act. He cites Lord Hoffmann's speech on the House of Lords in R v Secretary of State, ex p. Simms [2000] 2 AC 115, 131 F-G as follows:

"Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."

The fundamental right in question here, says Mr Southey, is the right to personal liberty. He adds a quotation from the very beginning of the speech of Lord Bingham in their Lordships' House in R (Gillan) v Commissioner of Police [2006] 2 AC 307, 332 at [1]:

"It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land".

17. Over and above the submission that there is no specific power to tag provided by the SOA 2003, Mr Southey argues that in any event, section 107 (1) SOA only provides that a SOPO "…prohibits the defendant from doing anything described in the order…"; it cannot, therefore, provide for the subject to carry out positive acts; the order must be negative in nature and not positive. The argument is that the provisions of paragraphs (7), (8) and (9) require the claimant to do positive acts: viz. to wear the tag, to charge it and to present it for inspection when required. Mr Southey refers to R (M) v Sheffield Magistrates Court [2005] LGR 126 and to R (Lonergan) v The Crown Court at Lewes [2005] 1 WLR 2570, to the latter of which I will return. He also contrasted the provision in section 107(1) of the CJA 2003 with the wording of the power to make injunctions in the case of gang activity which can,

"…require the respondent to do anything described in the injunction" (section 34(4)(b) of the Policing and Crime Act 2009).

18. Turning to Article 8 of the ECHR, as is well known, this provides:

"1. Every one has the right to respect for his private…life…

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety…for the prevention of disorder or crime, or for the protection of the rights and freedoms of others."

19. Mr Southey submits that Article 8 is engaged by the tagging order and the interference with the claimant's rights in this respect is not "in accordance with the law", because there is nothing specific in the legislation that authorises the imposition of monitoring by tag. An individual considering the Act, therefore, would be led to believe that tagging could not be imposed as part of a SOPO.
20. The challenge to the order in this case is based solely upon the legality of the "tagging" aspects of the order, as being outside the powers conferred by SOA 2003 and as infringing the requirement under Article 8 that inferences with the relevant convention rights must be "in accordance with the law". It is accepted that if the order is unobjectionable in these respects there is no argument that the relevant orders were not "necessary" for the defined statutory purpose or that the interference could not be justified under the second paragraph of Article 8, if otherwise "in accordance with the law".
21. Mr Knowles QC, with whom Miss Joan Smith appeared, for the Second Defendant submits that the power to tag is implicit, even if not explicit in the legislation. It is argued that the wording of section 107 is designed deliberately to be wide and flexible so as to enable SOPOs to be properly tailored to the circumstances of the individual case. In this case, Mr Knowles submits that the order under challenge is prohibitive in form and is substantially prohibitive in nature: it forbids the claimant from leaving the stated address without a functioning tag. There is no requirement upon the claimant to leave the identified location, but he must not do so without the tag.
22. Mr Knowles, like Mr Southey, also relied upon the Lonergan case in which an anti-social behaviour order contained a provision prohibiting the subject from leaving or travelling between two identified premises between particular times. The provision was criticised as being a positive requirement on the subject to be at the specified places at those times and was not, therefore, prohibitive in nature. That argument was rejected by this court. Maurice Kay LJ (with whom Moses J, as he then was, agreed) said:

"7 Mr Newman submits that the test of whether the relevant part of an ASBO is prohibitory, as section 1(4) requires it to be, is one of substance rather than form. Thus, he says, the mere fact that the disputed part of the order states that the claimant "is prohibited from ….. being in any place other than" the proscribed addresses is not conclusive. Whatever words are used, the essence of a curfew is a positive obligation to remain in a certain place for a specified time. The positive or mandatory substance of the obligation cannot be circumvented by expressing it in a superficially negative formulation. I do not accept the underlying premise of this submission. Nor do I consider that it would be helpful or appropriate to import into this context the kind of semantic analysis which once characterised the classification of covenants relating to land. I find no artificiality in the language of prohibition deployed in the disputed part of the order. Whilst I accept that the statute requires the order to be substantially and not just formally prohibitory, I am satisfied that a restraint upon leaving or travelling between specified premises between particular times meets that test."

23. Mr Knowles argued that paragraphs (7), (8) and (9) of the order are indeed truly prohibitory in nature, even when looked at on their own. He also argued, however, that those paragraphs should not be construed in isolation. They should be read together with paragraph (2), the prohibition upon consorting with prostitutes. It is argued that the provisions to which objection is taken are no more than ancillary to that primary prohibition; they are measures necessary to the policing of paragraph (2), just as the requirements to afford access to computers are ancillary to prohibitions upon certain types of internet use.
24. Further, with regard to the provisions in paragraphs (8) and (9) of the order, Mr Knowles submits that these are themselves conditions ancillary to the provision in paragraph (7), if that is to be seen as a primary prohibition, and are no more than necessary to render operative the prohibitive requirements in (7). He argues that those provisions are similar to the requirements in two other cases, requiring an offender not to refuse access to his premises so as to enable inspection of computer equipment: see Thompson [2009] EWCA Crim 3258 and Smith [2009] EWCA Crim 785. In those cases, the "continuing search warrant" effect of the provisions were considered excessive on the facts, but the court each case, while having the argument before it as to whether the order was properly prohibitive in nature and alluding to that argument, did not strike down the order on that ground. In Thompson, Lloyd Jones J (as he then was) said this,

"It has occurred to this court that Clause 6, if considered in isolation, although expressed in terms of the prohibition, is not in substance a prohibition on the conduct of the applicant but is mandatory. It is also a general permission to the police to act in the way specified. However, the power of the court to impose prohibitions, it seems to us, must include the power to impose prohibitions subject to exceptions or conditions. Examples are provided by Clauses 1 and 2 of this order. In the same way it seems to us that the statutory provisions are wide enough to include, in an appropriate case, a prohibition or restriction on the use of the Internet, subject to conditions in relation to the monitoring of the non-prohibited use. That is the substance of the provision to which objection is made in the present case. The provision in question therefore has to be considered in the context of the restriction on the use of the Internet imposed by the order."

25. With regard to Mr Southey's Article 8 argument, Mr Knowles accepts that Article 8 is engaged by the order. However, he submits that the provisions of the SOA 2003 are amply sufficient to meet the "in accordance with the law" criterion of Article 8. Further, he relied upon a passage in the judgment of the European Court in Sunday Times v UK (No.1) (1979-1980) 2 EHRR 245, at [49] as follows:

"49. In the Court's opinion, the following are two of the requirements that flow from the expression "prescribed by law". First the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."

Mr Knowles points out that the courts have consistently upheld detailed orders made under this Act, containing features such as restrictions on computer use and the like, without each specific power having been spelled out in the Act, and without any suggestion that Article 8 was infringed.

26. Mr Knowles observes that it is not suggested by the claimant that the order is an otherwise disproportionate interference with his Article 8 rights.

(E) My assessment of the case

27. In my judgment, sections 107 and 108 of the SOA 2003 do confer sufficient power to impose prohibitions such as those contained in paragraphs (7), (8) and (9) of this order. It seems to me that those provisions of the order, seen on their own, are properly to be seen as prohibitions and not as mandatory requirements of action by the claimant. Apart from being phrased as prohibitions as a matter of language, I consider that they are substantially, and not just formally, prohibitory.
28. I am not troubled in this respect by the absence of specific provision in the Act for the making of restrictions on movement in the absence of tagging. The Act permits, quite generally, the imposition prohibitions which are necessary for the protection of the public from serious sexual harm. It is not necessary to say a great deal more.
29. I do not think that assistance is to be found in the specific provisions of other Acts of Parliament in other areas. These Acts are dealing with other matters and, for example, the Bail Act 1976, specifically enacts that only requirements specified in section 3 of the Act may be imposed as conditions of bail: see section 3(3).
30. It is also clear that in this field the courts have continually developed and adapted orders to meet, what Hughes LJ (as he then was) in Smith [2012] 1 WLR 1316 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". There is no express permission, for example, to impose restrictions on computer use or to impose a curfew, but there can be no doubt that these are permissible.
31. I should perhaps quote the full passage in the judgment of Hughes LJ in Smith, to which we were referred:

"4 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."

Mr Southey was inclined to submit that the orders here inclined to the undesirable "inventiveness" against which Hughes LJ warned. However, the concern there expressed was as to whether the order would be workable and sufficiently clear. There was also the question whether too severe a restriction might be imposed by virtue of such inventiveness. However, there is no complaint here as to workability or clarity. Nor is it said that the order, on the facts, goes beyond what is necessary, within the meaning of the Act, on the facts of this case.

32. The relevant provisions of the order in this case constitute a restriction upon the manner in which the claimant 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. Taking another example, while I am far from saying that such a condition would in fact be acceptable in a case such as this, a restriction might be drafted preventing a subject leaving premises without wearing a particular item of distinctive clothing to aid recognition. Such a requirement might well be objectionable on other grounds, but the prohibition would still be negative in nature, even though it required the subject to don the item of clothing in question. Where then is the difference, in terms of the positive and the negative, in preventing certain movements without a tag? I see none.
33. In support of such an approach, I note the rejection by Maurice Kay LJ in Lonergan of any suggestion that the technical approach to the construction of covenants in land law, to ascertain whether negative or positive, should be adopted in this field. It seems to me too that such an approach would be inimical to the purpose of this statute which is designed to promote flexible arrangements for the safety of the public in the prevention of serious crime. In my judgment, to adopt the construction of this order urged on behalf of the claimant would import just such an over technical approach. The essence of the restriction here is to prevent the claimant's movements in public places without measures in place to ensure that intervention is possible where the potential for serious criminal offending is likely. That, to me, is a negative requirement.
34. I also derive support from the express statement of Keith J (giving judgment of the Court of Appeal in Smith (2009) (supra)) that the court was not to be taken as accepting the argument that the restriction in issue there was mandatory in nature. While it is not positive authority in support of Mr Knowles' argument, I consider that it is some indication that the argument of construction for the appellant did not find immediate favour with the court in that case.
35. It seems to me that the restriction in paragraph (8) of the order is quite obviously negative in nature and nothing more needs to be said about it. With regard to paragraph (9), I find that to be no more objectionable as an ancillary to paragraph (7) that the provision considered by the Court of Appeal in Thompson (supra). In that case the order provided that the offender should not refuse access to his place of abode to any police officer requiring examination of computer equipment. As mentioned above, the "continuing search warrant" effect of the provision was considered excessive, but the requirement did not fail because it was to be seen as imposing a positive obligation. It was ancillary to the restriction on internet use: see the passage from the judgment of Lloyd-Jones J cited above.
36. It is not necessary for me to determine whether or not Mr Knowles is correct in his further argument that paragraphs (7), (8) and (9) are merely ancillary to the prohibition in paragraph (2). However, I think that there is some attraction in the submission in reply by Mr Southey that the prohibition in paragraph (7) goes beyond the mere policing of whether the claimant enters a "red light" area, to which Mr Knowles submitted it was directed. Further, as Mr Southey points out, the restriction in paragraph (7) goes beyond a restriction upon entering certain areas where prostitutes are known to be present. It is sufficient, however, for me to say that I find the provisions of the order now in question are substantially prohibitory in nature and that Mr Knowles's fall back submission does not need to be taken further.
37. In my judgment, therefore, the provisions of the Magistrates Court's order challenged here do not fail for want of statutory power or because they impose positive rather than negative requirements.
38. I turn to the Article 8 point.
39. As already mentioned, Mr Southey's only point here is that the restriction imposed infringes the claimant's rights under the Convention and is not justified as being in accordance with the law, as required by Article 8.2.
40. For my part, I do not accept Mr Southey's argument, largely for the reasons advanced by Mr Knowles. The requirement of lawful authority is, it seems to me, fully covered by the provisions of the statute itself. The cases in the European Court have never required every detail of a legal power to spell out. The object of the lawfulness requirement is identified out by Lord Bingham in Gillan (supra) at [34] where he said:

"34.The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality. This is the test which any interference with any interference with or derogation from a Convention right must meet if a violation is to be avoided."

The law must also be adequately accessible and sufficient to enable the subject to regulate his conduct and to foresee the consequences of a given action: see the Sunday Times case (supra), in the passage cited by Mr Southey and Mr Knowles at paragraph [49].

41. 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. If he does offend and an order is made the law requires the order to be sufficiently clear to define what he may not do. The order must also be limited to what is necessary to protect the public. The offender is thereby protected against "personal whim, caprice predilection or purpose other than that for which the power was conferred". The "necessity" test is essentially the same for these purposes as the proportionality requirement in Article 8.2 itself and, in any individual case, the necessity of a restriction such as a tag would have to be examined very carefully. In this case, no argument in respect of "necessity" or proportionality arises. We are concerned only with the narrower question of whether the restriction is "in accordance with the law" and I find that it is.
42. I would add that I have considered the careful and helpful judgment of Judge Buckingham in the Grimsby Crown Court in the case of Chief Constable of South Yorkshire Police v Allen (2012) 8 December, reaching conclusions differing from my own on the present question. The arguments that convinced her were essentially similar to those of Mr Southey which I have rejected above for the reasons which I have endeavoured to state. I was grateful in particular, however, to Judge Buckingham for identifying a number of statutory "tagging" provisions which it has been useful to consider and compare with the provisions of the SOA 2003.

(F) Conclusion

43. For these reasons, I would dismiss this application for judicial review.

Mr Justice Stewart:

44. I agree.