B v Chief Constable of Avon and Somerset Constabulary
| Jurisdiction | England & Wales |
| Judgment Date | 05 April 2000 |
| Date | 05 April 2000 |
| Court | Divisional Court |
Court and Reference:Administrative Court , CO/5064/99
Lord Bingham CJ and Astill J
Appearances:C Booth QC and M Galloway (instructed by Messrs Allertons) for B; Lord Lester of Herne Hill QC and E Dixon (instructed by the solicitor to the Chief Constable of Avon & Somerset Constabulary) for the Chief Constable
Whether an application for a sex offender order was civil or criminal; the appropriate standard of proof; whether an order could be amended
B had committed 13 overtly sexual offences. In 1999 the Chief Constable made an application against him under s. 2 Crime and Disorder Act 1998 for a sex offender order. The justices announced their findings of fact, and they concluded that B was a sex offender and had acted in a manner which gave reasonable cause to believe that the order was necessary to protect the public from serious harm from him. Following representations from the parties as to the scope of the order, the justices retired again: the court clerk informed the advocates of the proposed terms of the order (prohibiting B from contacting, associating or residing with children or undertaking any activity which was likely to bring him into contact with children) and arranged for it to be typed up so that it could be explained to B before being served upon him. The written order mistakenly contained a double negative which meant that it was a grammatical nonsense: when it was read out to B, the chairman of the bench did not read out the double negative. B's representative was allowed to explain it to him before it was signed by the chairman of the bench and served on B.
B was arrested the next day for breach of the order. The error in the order was spotted and an application was made to stay the proceedings. The application was dismissed and the Justices corrected the original order. B appealed by way of case stated. The issues were the standard of proof to be applied, whether the wording of the Order was satisfactory and whether the Justices were entitled to amend the Order.
1. Mr B appeals by case stated against a sex offender order made by the Sedgemoor and Mendip Justices sitting at Bridgwater on 21 October 1999 under s. 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 Reading Crown Court, he was sentenced to 18 months' imprisonment for attempting to procure an act of gross indecency with another man, contrary to s. 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 Exeter 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 the Avon and Somerset Constabulary made application against the appellant under s. 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 Reading. That assertion has never been challenged. A sex offender is defined in s. 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 s. 13 of the 1956 Act was such an offence: see s. 1 of the 1997 Act and paras 1(1)(a)(vi) and 5(1)(a) and (b) of Sched 1 to the 1997 Act.
5. The Chief Constable's application alleges that the defendant between 28 July and 3 August 1999, at Exeter and Bridgwater, acted in such a way as to give reasonable cause to believe that an order under s. 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 6 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 9 numbered paragraphs as follows:
"1. On 28 July 1999 the defendant approached a young woman at Exeter Railway Station and initiated a conversation of an indecent nature. "
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2. On 28 July 1999 in Blake's Park in Bridgwater, the defendant was observed watching 2 young girls with his hand inside his trouser flies.
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3. On 28 July 1999 in Bridgwater 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.
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4. On 31 July 1999 in Bridgwater the defendant was observed hiding in the vicinity of the Esso Garage in Taunton Road.
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5. On 1 August 1999 near the Taunton and Bridgwater Canal in Bridgwater, the defendant befriended a 10 year old boy, and was in his company for approximately one and a half hours.
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6. On 2 August 1999 the defendant was seen in Bridgwater at various times watching young boys, hiding in bushes and near the canal watching 2 children with his hand on his groin.
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7. On 2 August 1999 at Blake's Park in Bridgwater, the defendant was seen to masturbate, then lick fluid from his hands.
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8. On 3 August 1999 in Bridgwater, the defendant was seen to enter private premises, including a residential old people's home, without consent for a short time.
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9. On 3 August 1999 at the Angel Place Shopping Centre in Bridgwater, 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 s. 2(5) of the Crime and Disorder Act 1998,while this Order has effect, Part I of the Sex Offenders Act 1997shall 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 5 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 Torbay 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 para 2(a) to (i). These...
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