B v Chief Constable of Avon & Somerset Constabulary

HTML VERSION OF JUDGMENT

: 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.

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.

On 3 August 1999 the appellant was recalled to prison for breach of his licence.

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.

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.

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.

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.

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."

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."

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."

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.

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.

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."

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...