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||Neutral Citation Number:  EWHC 2368 (Admin)
||Case No. CO/4359/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
London WC2A 2LL
||4 July 2012
B e f o r e :
LORD JUSTICE AIKENS
MR JUSTICE GLOBE
||COMMISSIONER OF POLICE OF THE METROPOLIS
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Mr P Taheri (instructed by Crown Prosecution Service) appeared on behalf of the Claimant
Mr F Brazell (instructed by Frank Brazell and Partners) appeared on behalf of the Defendant
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- LORD JUSTICE AIKENS: I will ask Globe J to give the first judgment.
- MR JUSTICE GLOBE: This is an appeal by way of case stated by the Commissioner of Police of the Metropolis against the decision on 15 November 2011 of District Judge Henderson, sitting at Highbury Corner Magistrates' Court, who held that in an application for a risk of sexual harm order ("RSHD") pursuant to section 123 of the Sexual Offences Act 2003, the correct standard of proof for the conduct required to be proven by section 123(4) is the criminal standard of proof.
- The questions for the opinion of the court are:
(a) Was it wrong in law to hold that the correct standard of proof for the conduct required to be proved by section 123(4)(a) of the Sexual Offences Act is to the criminal standard of proof?
(b) Should it have been held that the correct standard of proof for the purposes of section 123(4)(a) was that the acts in question were more likely than not to have been committed?
- RSHOs were created by the Sexual Offences Act as new preventative orders specifically designed to protect children under 16 against inappropriate sexual behaviour by adults, including grooming, irrespective of whether there has been a conviction for a criminal offence. The relevant provisions are sections 123 to 129 of the Act:
"(1)A chief officer of police may by complaint to a magistrates' court apply for an order under this section (a "risk of sexual harm order") in respect of a person aged 18 or over ("the defendant")... if it appears to the chief officer that—
(a) the defendant has on at least two occasions, whether before or after the commencement of this Part, done an act within subsection (3), and
(b) as a result of those acts, there is reasonable cause to believe that it is necessary for such an order to be made.
(3) The acts are—
(a) engaging in sexual activity involving a child or in the presence of a child;
(b) causing or inciting a child to watch a person engaging in sexual activity or to look at a moving or still image that is sexual;
(c) giving a child anything that relates to sexual activity or contains a reference to such activity;
(d) communicating with a child, where any part of the communication is sexual.
(4)On the application, the court may make a risk of sexual harm order if it is satisfied that—
(a) the defendant has on at least two occasions, whether before or after the commencement of this section, done an act within subsection (3); and
(b) it is necessary to make such an order, for the purpose of protecting children generally or any child from harm from the defendant.
(5)Such an order—
(a) prohibits the defendant from doing anything described in the order;
(b) has effect for a fixed period (not less than 2 years) specified in the order or until further order.
Section 124(2) is an interpretation section:
"(2)"Protecting children generally or any child from harm from the defendant" means protecting children generally or any child from physical or psychological harm, caused by the defendant doing acts within section 123(3)."
Section 125 deals with variations, renewals and discharges of an order.
Section 126 deals with interim risk of sexual harm orders.
Section 127 deals with appeals to the Crown Court from the making of such orders.
Section 128 deals with breaches:
"(1)A person commits an offence if, without reasonable excuse, he does anything which he is prohibited from doing by—
(a) a risk of sexual harm order; or
(b) an interim risk of sexual harm order.
2)A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years."
Section 129 deals with the effect of a conviction and specifically addresses notification issues.
- There is no direct authority from any case that either party has been able to find which specifically answers the questions posed of the court.
- The defendant submits that if there is any ambiguity or obscurity about the statute, then regard can be had to statements made in Parliament. Pepper v Hart  AC 593 and Westminster City Council v National Asylum Support Service  UKHL 38 are relied upon in support of the proposition. Our attention has been drawn to a memorandum on the sexual offences bill issued in March 2003. Within it the Home Office expressed the view that although proceedings for a RSHD would be civil, the standard of proof to be applied would be the criminal standard. It would be the same as for anti-social behaviour orders and football banning orders, which are civil proceedings requiring a criminal standard of proof. Reference was made to the case of McCann and Others v Manchester Crown Court  UKHL 39.
- The defendant submits that the document is a statement in Parliament, or an explanatory note. I am not satisfied it is either. It is a Home Office response to a letter to Lord Faulkner from the Chair of the Joint Committee on Human Rights, which posed a number of questions in relation to the sexual offences bill, including a question about the standard of proof. It is an interesting response, but for the reasons explained by Lord Steyn in the Westminster case it can only be of marginal relevance, if that. The wish and desires of the Government in respect of the meaning of clauses cannot be attributed to Parliament.
- A RSHD was one of three civil preventative orders to be found in Part 2 of the Sexual Offences Act. The making of such an order could have a disastrous impact on the reputation of somebody, who may never have been convicted or even cautioned for a sexually related offence, or indeed any offence. Over all, it constitutes a significant interference with a person's Article 8 right to respect for private life. It sits alongside the other two civil preventative orders of a sexual offences prevention order and a foreign travel order, each of which carry identical potential serious consequences upon breach of the order of a sentence of up to five years' imprisonment.
- The case of McCann was concerned with applications for anti-social behaviour orders under the Crime and Disorder Act 1998. It was held that the proceedings were civil, but that effectively the standard of proof to be applied to a defendant's conduct was the criminal standard. The rational was that there were good reasons in the interests of fairness for applying that higher standard where allegations were made of criminal or quasi criminal conduct which, if proved, would have serious consequences for the person against whom they were made.
- It is submitted that in McCann Lord Steyn referred to a heightened civil standard of proof, which was indistinguishable from the criminal standard, and which characterisation of the concept "civil standard" has been rejected by the House of Lords in the cases of In re D [2008 UKHL 33 and In re B  UKHL 35, both of which cases state that there is only one civil standard of proof: the balance of probabilities.
- Whilst that is correct, it is important to put that conclusion into context. The cases were directly concerned with the standard of proof in different sets of circumstances. The case of In re D was concerned with the standard of proof to be adopted by Life Sentence Review Commissioners when considering the release of prisoners in Northern Ireland sentenced to imprisonment for life. The case of In re B was concerned with the standard of proof to be adopted in care proceedings. However, in the course of the speeches, reference was made to the standard of proof in a whole variety of cases.
- In In re D Lord Brown acknowledged that, where there were cases which might lead to serious adverse consequences of a decision, the standard of proof to be applied should be the criminal standard. He referred to a number of quasi criminal cases, which included sex offender orders, football banning orders and anti-social behaviour orders. At paragraph 48 he referred to the way the courts had described the standard of proof in each type of case. In relation to sex offender orders in B v Chief Constable of the Avon and Somerset Constabulary  1 WLR 340 at paragraph 30, Lord Bingham said it was:
"...for all practical purposes ... indistinguishable from the criminal standard."
- In relation to football banning orders in Gough v Chief Constable of the Derbyshire Constabulary  QB 1213 at paragraph 90, Lord Phillips had said it was:
"an exacting standard of proof... in practice ... hard to distinguish from the criminal standard."
In relation to anti-social behaviour orders in McCann, Lord Steyn, as echoed by Lord Hope, said it was "virtually indistinguishable" from the criminal standard so that "pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases ... apply the criminal standard". Lord Brown then said as follows:
"... I question whether it would not have been more logical and appropriate to have decided that the making of the various orders calls for the criminal standard of proof to be satisfied in the first place. Certainly, once it became established, as finally it was in In re H, that there is no such thing as an intermediate standard of proof, logic surely demanded that one standard or the other be applied and common sense dictates the rest."
- In In re B Lord Hoffman referred to a number of categories of case. His first category included the same set of cases where, although civil, because of the serious consequences of the proceedings, the criminal standard of proof, or something like it, should be applied. He cited what Lord Bingham had said in B and what Lord Steyn had said in McCann. In paragraph 13 he concluded by saying that there is only one civil standard of proof, namely the balance of probability. He then added:
"I do not intend to disapprove any of the cases in what I have called the first category, but I agree with the observation of Lord Steyn in McCann's case (at 812) that clarity would be greatly enhanced if the courts said simply that although the proceedings were civil, the nature of the particular issue involved made it appropriate to apply the criminal standard."
- Baroness Hale agreed. In paragraph 69 she stated:
"There are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof."
- It is clear, therefore, that upon a full reading of all of these judgments that there are a range of cases where the proceedings are civil, but because of the serious potential consequences of the proceedings the standard of proof should be the criminal standard. That is not by adoption of a different civil standard, but by the application of the criminal standard. The issue is whether a RSHO is one of those cases.
- It is submitted by the claimant that not all cases which have serious potential consequences arising from the proceedings should have the criminal standard applicable to them. The Proceeds of Crime Act is cited as an example where the civil standard is used. In both confiscation proceedings and civil recovery proceedings section 6 and section 241 of the Act respectively explicitly direct that the court must decide the issues on the balance of probabilities. These are express provisions in the Act. No such provisions are to be found in the Sexual Offences Act in relation to what standard is to be adopted for any of the three civil preventative orders. There lies a distinction between the two Acts. Further, if there was to be a different standard for any of the three civil preventative orders one would have expected there to have been an express statement to that effect in the Sexual Offences Act itself. The Act though is silent in relation to all three types of orders.
- It is submitted by the claimant that by applying the higher criminal standard to a RSHO the court is failing to provide effective deterrence or prevention of sexual abuse of children, and is also failing to exercise its positive obligations to respect private and family life. As such, it is submitted that the court is acting unlawfully under section 6(1) of the Human Rights Act by acting in a way which is incompatible with children's human rights. The claimant's contention cannot be accepted. The whole essence of the Act is designed to provide such deterrence and prevention. There are numerous new provisions which target offences against children and provide protection from offences against them. The civil preventative orders supplement the offence provisions. The very existence of the power to make a RSHO arose from the work done by the Home Office Task Force on Child Protection on the Internet, which Task Force identified a gap in the law concerning the grooming of children by paedophiles. The standard of proof prior to the making of such an order needs to be considered in the context of the Act as a whole, and that requires an understanding of what behaviour underpins the making of such an order.
- The claimant submits that if the standard of proof is the criminal standard, then a RSHO would become virtually redundant because it would be tantamount to having to prove a criminal offence. That submission misunderstands the concept of RSHOs. A RSHO is not a substitute for a punishment having proved the criminal offence. It applies in circumstances where the behaviour of the adult gives reason to believe that the child is at risk from the defendant's conduct or communication, and intervention at this early stage is necessary to protect the child. It may be that the adult intends to continue to communicate with the child in a sexual way and has no plan to meet them to commit a sexual offence against them. Alternatively the adult may be planning to met the child for this purpose, but has not yet arranged to do so. Examples could include a defendant phoning the child and talking about sexual acts he wants to engage in with the child. It could involve a defendant sending pornographic images of adults engaging in sexual activities with a child through the post, or sending a child a sex toy or condoms. Whatever the case, the behaviour triggering the application for a RSHO does not depend upon a meeting being either intended or arranged. In circumstances where such a meeting has been arranged, and the adult has meet the child or travelled to the meeting, the police will wish to consider bringing criminal proceedings under section 15 of the Act, which is an offence of meeting a child following sexual grooming. Because the consequences of a breach of any order are potentially so serious, it is understandable why the requisite standard of proof in such circumstances should be the same standard as for establishing an offence under the Act such as a section 15 offence. Having such a standard in existence would not make applications for such orders virtually redundant.
- Although, as explained, the conduct required to be proved for a RSHO is not necessarily behaviour which amounts to any of the criminal offences set out in the Act, the distinction could easily be blurred. Some of the activities described in section 123 are not easy to distinguish from some of the offences in the Act. Indeed, the activities in section 123(3)(a) and (b) could amount to conduct which might justify prosecutions under sections 9, 11 or 12 of the Act. Section 9 is an offence of sex activity with a child. Section 11 is engaging in sexual activity in the presence of a child. Section 12 is causing a child to watch a sexual act. Whether they might or might not will depend on the precise circumstances. However, if the standard of proof were to be a lesser standard than the criminal standard, one can envisage there being many applications made for a RSHO in circumstances where a prosecution for an offence under the Act might fail. That would lead to a defendant being subject to restrictions, and liable upon breach to serious consequences, which realistically would not otherwise have been possible if he had been unsuccessfully prosecuted for an offence.
- It is submitted by the claimant that the serious consequences that may flow from the breach of a RSHO do not flow from the finding as to the conduct in question, but from the separate finding that it is necessary to make the order to protect a child from harm from the defendant. If that were right, then the same argument could be deployed in relation to the other two civil preventative orders in the Act: a sexual offences prevention order and foreign travel order, as well as those under other legislation, such as a football banning order and an anti-social behaviour order. In each case there is a separate and additional test to be fulfilled in addition to the establishment of a conduct justifying the order.
- It is also submitted by the claimant that if the civil standard is applied there are sufficient safeguards in place to limit interference with a defendant's human rights. Even if the qualifying conduct is proven to the civil standard, no prohibitions or restrictions and no order can be made unless it is necessary. It may be restricted to last no more than two years and there are provisions enabling a variation or discharge if there is a change of circumstances. Such matters are all factually correct. However, none of these safeguards affect the proposition that if a RSHO is made such restrictions and prohibitions may follow, and a breach of the order puts the offender at risk of very serious consequences.
- The future of serious consequences is one which is common to all of the quasi criminal cases referred to by Lord Brown in the case of In re D. It is the feature referred to by Lord Hoffman in the case of In re B. It is what was eluded to by Lord Steyn and Lord Hope in McCann. It was the foundation of what Lord Bingham was explaining in B v the Chief Constable of the Avon and Somerset Constabulary. It underpins the reason for adopting a criminal standard of proof. In my view none of the arguments advanced by the claimant convince me that it should be any lesser standard, and there was therefore no error made by the District Judge. The answers to both questions posed are therefore no.
- LORD JUSTICE AIKENS: I agree with the judgment of my Lord. I only add a few comments because of the important nature of the issue that is before us today. In order to start proceedings for a risk of sexual harm order, or a "RSHO", as I shall call it, it has to appear to a Chief Officer of Police that the defendant has, on at least two occasions, done acts within the definition set out in section 123(3) paragraphs (a) to (b) of the Sexual Offences Act 2003. If it does "appear" to him that that is the case, then the Chief Officer of Police can make the application to the Magistrates' Court. On that application the court has to be "satisfied" that the defendant has, on at least two occasions, done an act within section 123(3) of the Sexual Offences Act.
- The issue arises in this case because Parliament has not expressly enacted what the standard of proof should be in order that a court is "satisfied" that the defendant has, on at least two occasions, "done" one or more of the acts set out in section 123(3). It is accepted that proceedings for a RHSO are in the nature of civil proceedings. This means, amongst other things, that hearsay evidence could be adduced in support of an application to a Magistrates' Court for a RHSO. Such evidence could be adduced in support of a claim that the defendant has "done" acts within section 123(3)(a) to (d).
- It follows from the fact that proceedings to obtain a RHSO are in the nature of civil proceedings, that in principle the standard of proof ordinarily applicable in civil proceedings should apply. That is the starting point that was adopted in relation to ASBOs by Lord Steyn in the McCann case: see paragraph 37 of his speech. However, it is clear from the statement of Baroness Hale in the case of In re B at paragraph 69 that there are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof.
- It is now quite clear that there is a distinction between the civil standard of proof and the criminal standard of proof. The first standard is a balance of probabilities and the second standard is "beyond reasonable doubt". That clear distinction was reaffirmed in the decision of the House of Lords in In re B  UKHL 35. So the key question in this case is whether or not it is established that this is one of those cases within the class of case identified by Baroness Hale in In re B.
- In my judgment it is clear that the criminal standard of proof is applicable in relation to proof of the "doing" of acts within section 123(3). I do not intend, in identifying a number of factors that lend me to that conclusion, to detract in any way from those that have been already identified by my Lord. The first factor is that in application for a RHSO there is no need for there to have been any prior conviction (compare SOPOs: see section 106 subsections (5) to (7) of the Sexual Offences Act). The second is that the nature of the acts referred to in section 123(3) can be very serious in nature. That is to say, a serious allegation will have been made against the person against whom a RHSO is being sought. The third factor is that a finding that such acts, as are identified or defined in section 123(3), have been on at least two occasions "done" by the person concerned, will lead to a RHSO being ordered if the court is also satisfied that it is necessary to make such an order.
- However, it is important to note that questions of necessity do not involve any issue of a criminal or other standard, as was made clear by Lord Steyn in the McCann case. Moreover, as he put it, it is not a question of a standard of proof, it is an exercise of judgment or evaluation. Moreover, the threshold for satisfying the "necessity" test in relation to RHSOs is strikingly lower than that in the case of SOPOs: compare the provisions of section 123(4)(b) and section 124(2) in the case of RHSOs with the provisions of section 104(1)(b) in the case of SOPOs.
- Lastly, as my Lord has already pointed out, the nature of the order of a RHSO is obviously of the utmost seriousness and so are the consequences of breach. Breach, if proved, is a criminal offence. The maximum sentence upon proof and conviction of breach is one of five years' imprisonment. Breach and conviction of the offence of breach triggers the notification procedure under Part 2 of the Sexual Offences Act.
- All these particular factors, together with the others that my Lord has identified, have led me to the clear conclusion that the District Judge was correct in his determination. Therefore I too would dismiss this appeal.
- LORD JUSTICE AIKENS: Is there anything else?
- MR BRAZELL: The defendant is publicly funded, I think. Is it necessary to ask for a formal detailed assessment of his costs? I am not sure whether it is necessary in this case. It is a criminal one.
- LORD JUSTICE AIKENS: If in doubt ask.
- MR BRAZELL: Could I ask and if it is required could we have detailed assessment?
- LORD JUSTICE AIKENS: Yes. Thank you very much for your helpful submissions.
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