The Queen (on the application of Paul Richards) v Teesside Magistrates Court and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Mr Justice Stewart |
| Judgment Date | 30 July 2013 |
| Neutral Citation | [2013] EWHC 2208 (QB) |
| Date | 30 July 2013 |
| Court | Queen's Bench Division |
| Docket Number | Case No: CO/398/2013 |
[2013] EWHC 2208 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
LEEDS DISTRICT REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
and
Mr Justice Stewart
Case No: CO/398/2013
Hugh Southey QC (instructed by Kyles Legal Practice Limited) for the Claimant
Julian B. Knowles QC and E. Joan Smith (instructed by Force Solicitor, Cleveland Police) for the Second Defendant
The First Defendant did not appear and was not represented
Hearing date: 12 July 2013. (at Leeds Combined Court Centre)
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
(A) Introduction
This is an application by the claimant, Mr Paul Richards, for Judicial Review of the order of the First Defendant, Teesside Magistrates Court, of 15 October 2012 whereby the court varied a sexual offences prevention order ("SOPO") of 12 March 2012 made against the Claimant. The variation was made upon the application of the Second Defendant, the Chief Constable.
The SOPO as originally made contained a number of provisions which, the Chief Constable had successfully persuaded the court, were necessary for protecting the public from serious sexual harm from the claimant. The only provision of that order which it is necessary to quote is the prohibition, in paragraph (2), 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".
By the variation of the order, now under challenge, the court added additional prohibitions as follows:
"(7) Leaving and/or being away from your registered address or any other premises at which you may be residing or staying overnight without wearing a fully functioning and charged Location Monitoring Device issued to you by the Police.
(8) Tampering, damaging and/or removing the Location Monitoring Device without the prior permission of the Public Protection Unit (or equivalent department) of the Police Force area in which you reside.
(9) Failing to make the Location Monitoring Device and associated equipment available on request for inspection by a Police Officer. "
A "Location Monitoring Device" (or "LMD") is more commonly known as a "tag" and that expression is used where necessary in this judgment.
The claimant contends that these additional provisions are unlawful, as being outside the powers conferred by the relevant provisions of the Sexual Offences Act 2003 ("SOA 2003") and/or as infringements of his rights under Article 8 of the European Convention in Human Rights ("ECHR").
(B) Background Facts
The facts of the case can be shortly stated and are uncontroversial.
The claimant is 47 years old and has a long history of offending, including offences of violence, kidnapping, dishonesty, harassment and twelve sexual offences, and failures to comply with notification requirements under the sex offender registration provisions. His last sentence was imposed on 26 April 2012 for an offence of theft, in respect of which he received a community order with a residence requirement. He has been assessed, in various reports, as a very high risk offender and as presenting "a very high risk of causing serious harm to the Public and known adults": see paragraph 8 of the Sexual Offence Prevention Order Risk Assessment of 2 August 2012, prepared for the variation hearing by the Probation Service. Under the statutory arrangements for assessing risks presented by sex offenders, under the Criminal Justice Act 2003 (" CJA 2003") section 325 and following, the claimant has been registered as a "critical public protection case" by the Ministry of Justice on the basis of imminent risk of serious harm caused by potential re-offending.
It was the prospect of the expiry of the community order and of an earlier supervision requirement imposed in October 2011, and with that the lapse of residence requirements, that led to the variation application.
It can be added that the claimant is the subject of three separate individual restraining orders against him for the protection of specific adult women who have been the subject of harassment or violence by him. He is also a drug user.
The claimant has also been assessed as meeting the criteria for a diagnosis of antisocial and narcissistic personality disorder and of severe psychopathy, with a resultant very high risk of sexual recidivism. Other medical evidence indicates that the claimant displays high levels of deceit and manipulation, shows minimal empathy or remorse for his offending and seeks to justify it. The relevant witness concluded in her witness statement that the claimant "requires the highest levels of scrutiny and effort to prevent further sexual offending".
After a number of arrests for theft and a sentence of 12 weeks imprisonment for various offences imposed on 14 May 2012, the claimant discussed co-operatively with the police a potential tagging, but subsequently changed his mind and objected to it. As a result, the application was made to vary the SOPO. The Justices acceded to the application, rejecting the claimant's submissions as to the legality of the variation applied for and the contention that the variation would offend against Article 8 of the ECHR.
On 26 October 2012 the claimant was arrested for a suspected breach of the SOPO, alleged to have been committed when his presence is said to have been detected in an area known to be frequented by prostitutes. We were informed at the hearing that the claimant has now been charged with three offences of breaking the terms of the SOPO. By the order granting permission to bring the present application for judicial review the proceedings for breach were adjourned pending the outcome of this application.
(C) The Statutory Provisions
The statutory provisions governing the making of SOPOs are to be found in section 104 and following of the SOA 2003. Such orders may be made upon conviction for certain offences or (as in the present case) on the application of a chief officer of police. So far as material section 104 of the Act provides as follows:
"(1) 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.
……….
(4) 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.
(5) 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."
It is common ground that the claimant was, and is, a "qualifying offender" for these purposes.
Section 106 includes the following:
"(1) In this Part, "sexual offences prevention order" means an order under section 104….
"…."
(3) "Protecting the public or any particular members of the public from serious sexual harm from the defendant" means protecting the public in the United Kingdom or any particular members of that public from serious physical or psychological harm, caused by the defendant committing one or more offences listed in Schedule 3."
Then section 107(1) and (2) state:
"(1) A sexual offences prevention order—
(a) prohibits the defendant from doing anything described in the order, and
(b) has effect for a fixed period (not less that 5 years) specified in the order or until further order.
(2) The only prohibitions that may be included in the order are those necessary for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant."
It is provided by section 108 that the chief police officer of the offender's place of residence can apply for variations to a SOPO and section 108(5) provides that,
"(5) An order may be renewed, or varied so as to impose additional prohibitions on the defendant, only if it is necessary to do so for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant (and any renewed or varied order may contain only such prohibitions as are necessary for this purpose)."
Under section 113 of the Act it is an offence to break the terms of a SOPO and the offence is punishable with up to 5 years imprisonment.
(D) The Arguments
For the claimant, Mr Southey QC takes two short points. First, he submits that there is no power conferred by the Act to require tagging, and secondly, and in any event, tagging amounts to a breach of the rights of the claimant under Article 8.
Mr Southey submits that other statutes which authorise tagging make express provision to that...
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