R (on the application of Richards) v Teesside Magistrates Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lord Justice Fulford,The Master of the Rolls |
| Judgment Date | 16 January 2015 |
| Neutral Citation | [2015] EWCA Civ 7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2013/2715 |
| Date | 16 January 2015 |
[2015] EWCA Civ 7
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN LEEDS
The Rt. Hon. Lord Justice McCombe and the Hon. Mr Justice Stewart
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Lord Justice Beatson
and
Lord Justice Fulford
Case No: C1/2013/2715
Hugh Southey QC (instructed by Kyles Legal Practice) for the Appellant
The First Respondent did not appear and was not represented
Julian Knowles QC and Joan Smith (instructed by Cleveland Police Headquarters) for the Second Respondent
Hearing date: 3 December 2014
I. Introduction
The question in this appeal is whether the powers conferred under the Sexual Offences Act 2003 ("the SOA 2003") enable a person who is subject to a Sexual Offences Prevention Order ("SOPO") to be required to wear a Location Monitoring Device, "a tag", when away from the premises at which he is residing or staying overnight. The tag uses a global positioning system ("GPS") to identify the location of the person wearing it.
On 12 March 2012 the Teesside Magistrates' Court made a SOPO against Paul Richards ("the appellant"). By the appellant's own admission, he poses a real danger to women and in particular to prostitutes. It is not in issue that he satisfies the requirements for the imposition of a SOPO. He does so by reason of an offence of indecent assault for which he was convicted in April 1983. Paragraph (1) of the March 2012 SOPO prohibited the appellant from "having … any friendship or sexual or physical relationship with any female without first notifying a Police risk management officer within the Public Protection Unit [of the area in which he resided] of that female's full details and where necessary that female be made aware of [his] convictions". Paragraph (2) prohibited him 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".
On 13 August 2012, as a result of continuing concern about the appellant and the fact that a community order imposed on him with requirements of supervision and residence at approved premises was due to expire, the Chief Constable of the Cleveland Police applied to the Teesside Magistrates' Court to vary the SOPO principally by requiring him to wear a tag when away from his address or any other premises in which he was residing or staying overnight. On 15 October 2012, following a hearing at which the appellant was represented and it was submitted on his behalf that there was no power to require him to wear a tag, the Court granted the application and varied the SOPO. The police stated that the purpose of the tag was to enable them to determine whether the appellant has entered a "red light" area. It also enabled them to locate him wherever he was. These judicial review proceedings challenging the variation of the SOPO were filed on 15 January 2013. The claim was dismissed by a Divisional Court (McCombe LJ and Stewart J) on 30 July 2013 (see [2013] EWHC 2208 (QB)) and the appellant now appeals against the order made by that court.
The submissions made on behalf of the appellant to the Divisional Court and to us have three limbs:-
(1) Unlike other statutes which authorise tagging, there is no express provision authorising tagging in the SOA 2003, and, because requiring a person to wear a tag affects a fundamental right, the right to personal autonomy and privacy, it cannot be overridden by general or ambiguous statutory words. For this to be done, express language is required.
(2) There is no power under the SOA 2003 to require tagging because the effect of section 107(1) is that a SOPO must be negative in nature and not positive. The consequence is that a SOPO cannot provide that the person affected carry out positive acts, such as wearing a tag.
(3) The location monitoring enabled by the tag interfered with the appellant's right under Article 8 of the European Convention on Human Rights ("the ECHR") to private life and the imposition of this interference by making the order is not "in accordance with the law" because there is nothing specific in the SOA 2003 that authorises such monitoring. It is therefore very unclear what conditions could be imposed as part of a SOPO. Before the Divisional Court this point was confined to the legality of the initial imposition of a SOPO with a tagging requirement. Before this court Mr Southey QC raised a new point. It is that, in addition to the problem with the imposition of a tagging requirement in a SOPO, the absence of statutory rules governing the retention of the data obtained from the tag and the use of such data also meant the interference was "not in accordance with the law".
It was not in contention that the location monitoring enabled by the tag interfered with the appellant's Article 8 right to private life. It was also accepted below and before this court that, if the requirement to wear a tag is "in accordance with the law", in the light of the appellant's history and circumstances (which I summarise below), requiring him to do so cannot be said to be either unnecessary or a disproportionate interference with his right to private life.
I have been assisted by the written and oral submissions of Mr Southey on behalf of the appellant, and the written submissions of Mr Knowles QC and Ms Smith on behalf of the Chief Constable of the Cleveland Police ("the second respondent"). It was only necessary for the court to hear oral submissions from Mr Knowles on the ECHR points.
In sections II and III of this judgment I summarise the factual background to the making and varying of the SOPO against the appellant and set out the material provisions of the SOA 2003. Section IV summarises the reasoning of the Divisional Court, and section V contains my reasons for concluding that the Magistrates' Court was entitled to impose the tagging requirement on the appellant as part of his SOPO and that this appeal should be dismissed.
II. The Factual Background
My summary of the factual background to the making and varying of the SOPO against the appellant is primarily taken from the clear account given by McCombe LJ at [5] – [11] of his judgment.
The appellant is now aged 48. He has a long history of offending with convictions for offences of violence, kidnapping, dishonesty, harassment, possession of drugs, and for twelve sexual offences. He also has convictions for failures to comply with notification requirements under the Sex Offender Registration provisions and is the subject of restraining orders for the protection of three specific adult women who have been the subject of harassment or violence by him.
The appellant's most recent conviction for a sexual assault was for offences of kidnapping and sexual assault in 1995. His most recent convictions are for theft by shoplifting at the Teesside Magistrates' Court on 26 April 2012 and, at the same court, on 14 May 2012 for three further offences of shoplifting, for possession of class B and class C drugs, and for handling stolen goods. He has been assessed as meeting the criteria for a diagnosis of Anti-Social and Narcissistic Personality Disorder and Severe Psychopathy, with a resulting high risk of sexual recidivism. The medical evidence also indicated that he manifests high levels of deceit and manipulation and shows minimal empathy or remorse for his offending. He was registered as a "critical public protection case" pursuant to the arrangements in section 325 of the Criminal Justice Act 2003 (" CJA 2003"), on the basis that he poses an imminent risk of serious harm from potential re-offending.
After the SOPO was made on 12 March 2012, as a result of observations by the police officers from the Public Protection Unit who saw him regularly to monitor him, and the events surrounding the recent offences to which I have referred, the police remained concerned about the risk he posed. There was also greater concern because the community order imposed on him in October 2011 with requirements of supervision and residence at approved premises was due to expire on 25 October 2012. At monitoring meetings on 27 June and 11 July 2012, the appellant stated to an officer from the Public Protection Unit that he would agree to wear an electronic Location Monitoring Device if that would meet the concerns of professionals regarding his re-offending. It is said that he made this proposal because he was concerned that details of his previous sexual convictions were being disclosed and he wished to avoid that happening by being co-operative. On 26 July he told an officer that he wanted to have a tag fitted as it would help him set boundaries, and that he was concerned he could not control himself and might wander into a "red light" district and speak to a prostitute and therefore commit an offence. At some stage, however, he changed his mind about the tag.
The Chief Constable's application to vary the SOPO was supported by a report prepared by Mr Whitehead, a probation officer involved with the appellant, and input from Mr Carey, a forensic community psychiatric nurse. Mr Carey's assessment was that the appellant was one of the most worrying and dangerous individuals he had come across. In his July 2012 report, Mr Carey stated that to a degree the appellant responded to boundary setting and...
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