R (Chief Constable of Cleveland Police) v Haggas
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 20 November 2009 |
| Neutral Citation | [2009] EWHC 3231 (Admin) |
| Docket Number | CO/7932/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 November 2009 |
[2009] EWHC 3231 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Collins
CO/7932/2009
Miss R Smith (instructed by Cleveland Police) appeared on behalf of the Claimant
Mrs S Mallett (instructed by Paul Watson) appeared on behalf of the Defendant
: There is an appeal by way of case stated from the decision of the Teeside Crown Court comprising Miss Recorder Matthews QC and two lay Justices. They were hearing an appeal by the respondent against the decision of the Magistrates that he should be made the subject of a Sexual Offences Prevention Order pursuant to section 104 of the Sexual Offences Act 2003.
The relevant provisions which enable the court to make such an order, so far as material to this case, are contained in section 104(1) of the Act which provides:
“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.”
Subsection (4) provides:
“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.”
But the particularly material provisions for the purposes of this case are contained in subsection (5) which provides:
“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.”
“Qualifying offender” is defined in section 106. Suffice it to say, for the purposes of this case, that he is a person who has been convicted of an offence which is listed in Schedule 3 or in Schedule 5 to the Act, or has been found not guilty of such an offence by reason of insanity, or has been found to be under a disability and to have done the act charged against him in respect of such an offence, or has been cautioned in respect of such an offence.
The respondent was a qualifying offender; of that there was no doubt, and indeed it was not disputed. The qualifying offence in question was a conviction for inciting gross indecency with a child on 8th November 1996. That offence involved the respondent, while in a car, offering a boy the sum of £5 if he would masturbate him.
In 2001 complaint was made to the police by a step-daughter of the respondent, alleging that since 1993, when she was nine, he had repeatedly exposed his penis to her and to her sister, masturbated before them and asked her to rub his penis. He denied that he had committed any of these matters when interviewed. He was, in fact, not prosecuted for those offences, but, when the matter was before the Crown Court, no explanation was given as to why that prosecution had not taken place. I understand that unfortunately the relevant file had not been located at that time and therefore counsel then representing the chief constable was not in a position to explain why that had not occurred. It has subsequently been said that it was due to administrative error, but that, of course, is not a matter that can be taken into account because the court below can act only upon the material that was put before it, and it is not and cannot be an error of law not to have regard to evidence which is not before the court.
No further matters were raised against the respondent, but in October 2007 he was interviewed under caution following a complaint by his granddaughter, then aged 7, that “he had got his privates out”. He, when interviewed, denied that he had been guilty of those allegations. A prosecution did follow and there was a trial at the Crown Court in September 2008. The judge, the Recorder of Middlesborough, expressed concern about the poor quality and conflicting nature of the evidence of the complainant and, as a result of that, counsel for the Crown decided that no further evidence should be offered. The judge clearly agreed with that decision and directed the jury to acquit. That was the sum total of the material upon which the chief officer relied in order to justify the making of the order.
The order itself contains some very severe restrictions upon the ability of the respondent to live an ordinary life, because essentially he is forbidden to put himself in a position where he is able to be in contact with children unless either there is a representative from Social Services present, or no doubt there are sufficient adults to ensure that he is kept at a distance from the children; although to be fair the order as drafted does not make that limitation clear. It is obvious, quite independently of this case, that an order under section 104 is liable to contain serious restrictions on the ability of the individual to live an ordinary life, and if he does breach any of the conditions imposed upon him under the order, he is liable to go to prison if such a breach is established. It follows, as I say, that the effect of the order on him is serious.
It appears that what happened at the Crown Court, although this is not entirely clear from the form in which the case has been stated, was that since the only evidence before the court was that of the detective constable who reported what the nature of the complaints were, it was submitted that the chief constable relied only upon what amounted to hearsay evidence. As a matter of fact, the proper procedures had not been undertaken in respect of establishing the admissibility of that evidence, but that is not a point that is relied on by the respondent, and rightly so, because of course there is no question but that these are civil proceedings and therefore the strict rules in relation to the admissibility of hearsay evidence in criminal cases do not apply. Nonetheless, it is clearly desirable —and it should occur in all these cases —that the relevant notice is given so that there can be no argument about the admissibility of such evidence, nor indeed about what the nature of the evidence is if it is going to be relied on in order to justify the making of an order. That, perhaps, is more particularly the case before the Magistrates, because on appeal the evidence will have been deployed before the Magistrates' Court. But it is obviously desirable that the individual knows in advance, so far as that is possible, the case that he has to meet, whatever may be the obligations in relation to prior disclosure. I do not need to go into that in any detail. As I say, no point is taken about the admissibility of the hearsay evidence in the circumstances of this case.
Knowing what the material relied on was, the Recorder decided that she should approach the matter on what effectively amounted, it is said, to a preliminary issue; namely whether there was a case on the basis of that material. So she treated it as, in effect, an application that there was no case to answer but without hearing any evidence, merely relying on what had been put before the court in the form of hearsay. It has been suggested, in those circumstances, by Miss Smith, who has appeared on behalf of the appellant, the chief constable, that she ought to have enabled the police officer to be called to give evidence so that the reliability of the material which the chief constable relied on in order to justify the need to make such an order could be tested.
As will become apparent, the difficulty on Miss Smith's part is that it is impossible to see what, in the circumstances, the officer could have said and what evidence she could have given which could conceivably have made any difference and established in any way the additional reliability of the material beyond merely what she had set out in her statement. Her statement was before the Recorder.
The provisions of section 127 of the Magistrates' Court Act 1980 apply to the bringing of any complaint before the time limit expires. Section 127(1) provides:
“Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates' court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.”
There may well be arguments as to whether the words “matter of complaint arose” referred to the incidents or actions which are relied on to justify making the order, or whether they relate to the time when the chief constable was aware, because complaint was made to the police, of the allegations in question.
If I may take an example, X was convicted in 2005. Matters relied on after the conviction occurred in 2006, but complaint about those matters was not made until...
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