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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Richards, R (on the application of) v Teesside Magistrates Court & Anor [2013] EWHC 2208 (QB) (30 July 2013) URL: https://www.bailii.org/ew/cases/EWHC/QB/2013/2208.html Cite as: [2013] EWHC 2208 (QB), [2013] CN 1269 |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
LEEDS DISTRICT REGISTRY
Strand, London, WC2A 2LL |
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B e f o r e :
And
MR JUSTICE STEWART
____________________
THE QUEEN (on the application of ![]() ![]() |
Claimant |
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- and - |
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(1) TEESSIDE MAGISTRATES COURT (2) CHIEF CONSTABLE OF CLEVELAND |
Defendants |
____________________
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)
____________________
Crown Copyright ©
Lord Justice McCombe:
(A) Introduction
"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".
"(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.
(B) Background Facts
(C) The Statutory Provisions
"(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.
"(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)."
(D) The Arguments
"Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."
The fundamental right in question here, says Mr Southey, is the right to personal liberty. He adds a quotation from the very beginning of the speech of Lord Bingham in their Lordships' House in R (Gillan) v Commissioner of Police [2006] 2 AC 307, 332 at [1]:
"It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land".
"…require the respondent to do anything described in the injunction" (section 34(4)(b) of the Policing and Crime Act 2009).
"1. Every one has the right to respect for his private…life…
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety…for the prevention of disorder or crime, or for the protection of the rights and freedoms of others."
"7 Mr Newman submits that the test of whether the relevant part of an ASBO is prohibitory, as section 1(4) requires it to be, is one of substance rather than form. Thus, he says, the mere fact that the disputed part of the order states that the claimant "is prohibited from ….. being in any place other than" the proscribed addresses is not conclusive. Whatever words are used, the essence of a curfew is a positive obligation to remain in a certain place for a specified time. The positive or mandatory substance of the obligation cannot be circumvented by expressing it in a superficially negative formulation. I do not accept the underlying premise of this submission. Nor do I consider that it would be helpful or appropriate to import into this context the kind of semantic analysis which once characterised the classification of covenants relating to land. I find no artificiality in the language of prohibition deployed in the disputed part of the order. Whilst I accept that the statute requires the order to be substantially and not just formally prohibitory, I am satisfied that a restraint upon leaving or travelling between specified premises between particular times meets that test."
"It has occurred to this court that Clause 6, if considered in isolation, although expressed in terms of the prohibition, is not in substance a prohibition on the conduct of the applicant but is mandatory. It is also a general permission to the police to act in the way specified. However, the power of the court to impose prohibitions, it seems to us, must include the power to impose prohibitions subject to exceptions or conditions. Examples are provided by Clauses 1 and 2 of this order. In the same way it seems to us that the statutory provisions are wide enough to include, in an appropriate case, a prohibition or restriction on the use of the Internet, subject to conditions in relation to the monitoring of the non-prohibited use. That is the substance of the provision to which objection is made in the present case. The provision in question therefore has to be considered in the context of the restriction on the use of the Internet imposed by the order."
"49. In the Court's opinion, the following are two of the requirements that flow from the expression "prescribed by law". First the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."
Mr Knowles points out that the courts have consistently upheld detailed orders made under this Act, containing features such as restrictions on computer use and the like, without each specific power having been spelled out in the Act, and without any suggestion that Article 8 was infringed.
(E) My assessment of the case
"4 The SOPO offers a flexibility in drafting which is in one sense welcome because it enables the order to be tailored to the exact requirements of the case. That flexibility, however, must not lead draftsmen to an inventiveness which stores up trouble for the future. It will do this if it creates a provision which is, or will become, unworkable. That may be because it is too vague or because it potentially conflicts with other rules applicable to the defendant, or simply because it imposes an impermissible level of restriction on the ordinary activities of life. The SOPO must meet the twin tests of necessity and clarity. The test of necessity brings with it the subtest of proportionality."
Mr Southey was inclined to submit that the orders here inclined to the undesirable "inventiveness" against which Hughes LJ warned. However, the concern there expressed was as to whether the order would be workable and sufficiently clear. There was also the question whether too severe a restriction might be imposed by virtue of such inventiveness. However, there is no complaint here as to workability or clarity. Nor is it said that the order, on the facts, goes beyond what is necessary, within the meaning of the Act, on the facts of this case.
"34.The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality. This is the test which any interference with any interference with or derogation from a Convention right must meet if a violation is to be avoided."
The law must also be adequately accessible and sufficient to enable the subject to regulate his conduct and to foresee the consequences of a given action: see the Sunday Times case (supra), in the passage cited by Mr Southey and Mr Knowles at paragraph [49].
(F) Conclusion
Mr Justice Stewart: