R v Chief Constable of North Wales Police and Others, ex parte AB and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD WOOLF, MR
Judgment Date18 Mar 1998
Judgment citation (vLex)[1998] EWCA Civ J0318-9
Docket NumberFC3 98/5355 CMS4 FC3 98/5362 CMS4 QBCOF 97/1091 CMS4

[1998] EWCA Civ J0318-9

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION (DIVISIONAL COURT)

(LORD BINGHAM OF CORNHILL CJ)

Royal Courts of Justice

Strand

London WC2

Before:

The Master of the Rolls

(Lord Woolf)

Lord Justice Schiemann

Lord Justice Robert Walker

FC3 98/5355 CMS4 FC3 98/5362 CMS4 QBCOF 97/1091 CMS4

Regina
and
1. The Chief Constable for the North Wales Police Area
2. The Secretary of State for the Home Department
3. The National Association for the Care and Resettlement of Offenders
Ex Parte (1) AB and (2) CB

MR E FITZGERALD QC and MR T OWEN (Instructed by Mr M Purdon, Newcastle upon Tyne, NE1 1EW) appeared on behalf of the Appellants.

MISS P BAXENDALE QC and MR P SAINI (Instructed by Head of legal Services, North Wales Police, Colwyn Bay, 1129 8AW) appeared on behalf of the First Respondents.

MR J EADIE (Instructed by the Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Second Respondents.

MR M DOUGLAS QC (Instructed by Messrs Eversheds, Birmingham, B3 3LX) appeared on behalf of the Third Respondents.

LORD WOOLF, MR
1

This is the judgment of the court.

2

The issue involved

3

This appeal is concerned with the problem which arises when offenders who have committed serious sexual offences against children are released from prison after serving long prison sentences. When this happens, the public are naturally concerned that the offenders should not have the opportunity to commit again offences of the same nature. The police and other agencies who are involved in protecting children from offending of this nature obviously share this concern. Regrettably recent experience has confirmed that while some former sexual offenders' behaviour has changed after serving their sentence, other offenders retain the propensity to repeat their offending and, if given the opportunity to do so, commit further serious offences of the same or a similar nature. The police and the other agencies therefore have the very heavy responsibility of deciding on the steps which it is appropriate to take to provide protection for children who could in this way be at risk from former offenders.

4

In reaching their decisions the police and the other agencies cannot ignore the position of the offender. The offender has served his sentence and he may be determined, so far as possible, to re-establish himself as a law abiding member of society. His ability to do this will be made far more difficult if he is subject to the attention of the media or harassment by members of the community, who because of his past, do not want him to live amongst them. Sometimes a former sex offender can be at risk of physical attack from those who are outraged by his or her previous offending.

5

In addition to having to take into account the interests of the offender, it is also necessary to take into account the danger of driving those who have paedophile tendencies underground. When their whereabouts are known, it is simpler for those responsible to ensure that they are living and working in conditions which reduce the risk of repetition of their previous conduct. Most importantly steps may be able to be taken to ensure that they are subject to suitable supervision, that they receive appropriate treatment and support and are suitably housed. If, instead the former offender is driven underground by the conduct of the media or members of the community in which he is living, this may make it impossible to take steps which would otherwise be available to protect children living in the area.

6

The tension which is the result of these conflicting considerations makes the position of the police one of extreme difficulty and sensitivity. They can be criticised for taking no or inadequate action to protect children at risk. Where they take action they can be open to criticism, either because of its effect on the ability of the offender to live a normal life or because it causes the offender to conceal his whereabouts so that children are more at risk than they would have been if this had not happened.

7

The conflict between these competing interests was fully considered in the judgments of Lord Bingham CJ and Buxton J in the decision of the Divisional Court of 10 July 1997 which is the subject of this appeal. The judgments dismissed applications for judicial review of the decision of the police to reveal the identity of two former sex offenders. Because of the importance of the issues at stake they gave leave to appeal. On the appeal the arguments which the appellants advanced did not substantially challenge the reasons which were given in both judgments of the Divisional Court for dismissing the application for judicial review. Instead, the argument has primarily revolved around issues which were not canvassed before the Divisional Court. The parties are seeking the opinion of this court on the new issues against the background of fresh policy guidance which has been published by the Home Office since the hearing before the Divisional Court. Before dealing with those issues it is necessary to refer to the facts which gave rise to the application before the Divisional Court. It is possible to do this succinctly because those facts are already fully and clearly set out in the judgment of the Lord Chief Justice which is now reported in [1997] 3 WLR 724.

8

The Facts

9

The applicants, who we have agreed until the conclusion of this appeal should be known as AB and his wife CD so as to protect their identify, (the same device was used in the Divisional Court) were released from their respective prisons on 17 July 1996. They had been each serving a sentence totalling 11 years imprisonment. The sentences had been imposed in the case of AB for one offence of rape, one offence of indecent assault on a female child and three counts of gross indecency. CD had pleaded guilty to two offences of aiding and abetting rape, one offence of indecent assault on a female child and three offences of gross indecency with a child. The victims were the children of either AB or CD, apart from the victim of the rape offences who was a 17 year old girlfriend of one of the children. On their release a flat at a convenient location was available for them. They had to leave that accommodation for fear of reprisals from members of the local community. This was after articles about them had appeared in their local newspaper. They then slept for a time in their motor car. This was followed by bed and breakfast accommodation. They then moved to another flat where they voluntarily made contact with the probation service. Again however there was publicity in the local newspaper which resulted in an angry response from neighbours and again they moved. This time hurriedly. Once more they slept in their car for some days. Then they purchased a caravan and in early October they moved to a site at Ruabon near Wrexham. We draw attention to the number of moves which the applicants had to make because it illustrates the problems which people with their background face on release from prison.

10

On 14 January 1997, the local police force, North Wales Police ("NWP") received a copy of a report prepared by the Northumbria Police shortly before the release of AB and CD from prison. The report recorded views attributed to the probation service indicating that AB and CD were "extremely dangerous people who will pose a considerable risk to children and vulnerable adults in the community where they settle and they will target and procure such people for sexual abuse".

11

The report suggested that AB had been resistant to intervention by the probation service while in prison and had refused all attempts to engage in sex offending work. He was regarded as dangerous. CD was said to have been described by a therapist as the most devious sex offender the therapist had ever experienced. CD was said to have expressed the ability to kill. Probation Officers were said to believe that her behaviour, attitude and psychological disposition had remained unchanged since the commission of the offences.

12

Detective Sergeant Lewis of the NWP Child Protection Team was aware that the applicants were living at the caravan site. He also knew of their record and of the report by the Northumbria Police. He therefore convened on 28 January 1997 a meeting at which there attended, in addition to himself, the Child Protection Team Manager of the Social Services Department and two probation officers of the North Wales Probation Service. At the meeting Detective Sergeant Lewis reported on the contents of the report received from the Northumbria Police and drew attention to the statement that the applicants had resisted all forms of therapy intervention. One of the Probation Officers was aware that this was incorrect and pointed out that both applicants had asked to attend more courses than they had actually attended but had been turned down and said that CD had done a lot of "one to one work with Probation Officers". The Probation Officers however agreed that on the information available the applicants had to be regarded as being extremely high risk with a potential to re-offend which was regarded as limitless. It was agreed that for the time being it was preferable that all agencies knew where the applicants were living and were able to monitor their activity. Detective Sergeant Lewis stated that the applicants had told him that they would be willing to consider voluntary co-operation with the Probation Service or similar agencies and it was agreed that a probation officer should approach the applicants to ask if they would agree voluntarily to attend a forensic psychiatrist at the local hospital. It was also decided that...

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