Jersey Unreported Judgments

Hearing (Criminal) - application for a restraining order by consent.

[2016]JRC193

Royal Court

(Samedi)

24 October 2016

The Attorney General

-v-

D

J. C. Gollop, Esq., Crown Advocate.

Advocate J. C. Turnbull for the Defendant.

JUDGMENT

THE BAILIFF:

1.        On 5^th June, 2015, the defendant was sentenced by the Inferior Number of the Royal Court following guilty pleas to two counts of indecent assault and one count of procuring an act of gross indecency.  The Court was faced at that time with an application for a restraining order from the Crown and the matter was adjourned pending receipt of a report from JFCAS who were asked to make that report also available to the Crown and to the defence so that a date could be fixed for the hearing of the application for restraining orders. 

2.        There have been several directions hearings since then and the Court has had the advantage of receiving reports not only from JFCAS but also from Mr Tucker and Dr Briggs and a report from Ms Carraghan, a trainee forensic psychologist at HM Prison at La Moye.  We are faced today with making a restraining order by consent and attached to it but not forming part of it, is an undertaking from the defendant's wife in relation to work which she and the family will do with Mr Tucker if the consent restraining order is made. 

3.        Clearly the work contained in the undertaking is important work which needs to be done and we think that wife is very sensible to give this undertaking and she and the family should all cooperate with Mr Tucker in doing this work because the purpose of these restraining orders, as the Crown has said, and as Dr Briggs has said, is to achieve a position which minimises risk for the future.  So it in is everyone's interest that this work is done but we make it plain that the undertaking does not form part of the restraining order in the sense that any breach of it cannot possibly lead to a criminal offence being committed by the defendant; that does not detract from the position that it really is quite important that the work is done. 

4.        As far as the restraining order itself is concerned, the agreed order is as follows:-

(i)        That the defendant is prohibited from being alone with any child under the age of 16 years, aside from such contact which is inadvertent and/or unavoidable.  He will be considered alone if there is not a parent, guardian or responsible adult present who is over the age of 21 years and aware of the defendant's convictions and does not have a relevant conviction under Article 2 of the Sex Offenders (Jersey) Law 2010. 

(ii)       That where the defendant finds himself in contact with a child under the age of 16 years when he is alone or when there is no adult present who is aware of his convictions, he has a positive duty to remove himself from that situation as soon as reasonably practicable. 

(iii)      The prohibition at (i) and (ii) above does not include the defendant's own children. 

(iv)      The exclusion at (iii) above applies subject to the defendant's undertaking and participating in the motivational counselling and educational work outlined in the report of Dr Briggs dated 18^th October, 2016, (at paragraphs 2.17a and b), and that counselling and educational work should be completed prior to his release from custody which is expected to be not before 5^th May, 2017. 

The work will be carried out supervised by Dr Carraghan at HMP. 

5.        These orders are to be effective for a period of 5 years as from today, 24^th October, 2016. 

6.        D you have heard us say that these restraining orders are imposed for your benefit as well as to protect your children.  Everyone is really aiming in the same direction and it has been of concern to the Court that in May this year Ms Carraghan was saying that you did not appear to be engaging with her as she would have wished.  I think the Court is worried that you may still feel that and Dr Briggs' evidence before us which was quite important suggests that you probably will still feel that.  The work that you are about to do now, the importance of it, is that even though you may still feel that is it not applicable to you, intellectually your mind should engage with it because it is important you realise what the risk factors are and that motivationally you must be in a place where you realise what could go wrong and what you can do to stop it going wrong in the future.  And actually, at the end of the day, most of it is going to be down to what you are prepared to do.  You probably will have read or been told that Dr Briggs' concern has shown in the report that you may think you have won today and this is not a case of winning or losing today, it is a case of protecting your children.  They too are part of that protection, they must protect themselves and you must respect that as well.  So that is what the motivational work is there for and the Crown has confirmed that as far as the Crown is concerned it is not going to be a criminal offence if you do not engage in this counselling and educational work; that does not mean that you must, but what it does mean is that the Crown reserves the right to come back to Court and ask the Court to ensure that the restraining order applies to your own children as well if you do not.  So there is, as it were, a sword of Damocles over you, a sting in the tail, you have got to engage with Ms Carraghan and do it properly even though you may yourself feel that it is not necessary.  You have to engage.  I hope you understand that. 

7.        Otherwise I must warn you that the conditions (i) and (ii), that is the general prohibitions about other children, those apply and if you breach those that itself will be a criminal offence and you are liable to be prosecuted for them so if you find yourself in contact with anybody where they are alone under the age of 16 you have the duty to get yourself out of that position straightaway.  If your children bring friends back to the home that is your duty. You are alright as long as your wife is there but if she is not there then you have got to make yourself scarce. 

8.        Very well those orders are made. 

Authorities

Sex Offenders (Jersey) Law 2010.