Trinity barrister, Joan Smith appeared at the Court of Appeal in December 2014 instructed by the Chief Constable of Cleveland Police in an appeal involving the variation of a Sexual Offences Prevention Order (SOPO) to impose a Location Monitoring Device (GPS tag). The matter was heard before The Master of the Rolls, Lord Justice Beatson and Lord Justice Fulford. The Court of Appeal judgment was handed down on the Friday 16th January 2015.
The Administrative court decision can be found at R (on the application of Paul Richards)-v-(1) Teesside Magistrates Court (2) Chief Constable of Cleveland Police [2013] EWHC 2208 (QB).
Joan has been involved in the case from the outset, providing initial advice on potential legal issues and the drafting of the terms for the application, appearing at Teesside Magistrates’ Court. The application to vary the SOPO to include a GPS device was one of the first of its kind in the country, and the first for Cleveland Police.
The Magistrates’ granted the variation of the SOPO, the terms of the variation granted and subject to challenge were:
"(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."
This decision has been upheld by the Administrative Court and the Court of Appeal.The submissions made on behalf of the Appellant to the Divisional Court and to the Court of Appeal had three limbs:-
- 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.
- 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.
- 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. An additional new point was raised before the Court of Appeal 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".
[51] I would therefore dismiss this appeal. My reasons for concluding that the Magistrates' Court was empowered to impose the additional requirements it did when varying the SOPO are set out at [27] – [42] above. They are broadly the same as those given by McCombe LJ in the Divisional Court. My reasons for rejecting the point not raised below and first raised in this Court are set out at [43] – [50] above.
Joan was led in the Court of Appeal by Julian Knowles Q.C. instructed by the Chief Constable of Cleveland Police.
Joan Smith is member of Trinity Chambers' Judicial Review, Chancery, Licensing and Regulatory practice groups. Joan has a nationwide practice base and regularly advises on points of policy, law and challengers by way of judicial review. Joan regularly delivers seminars covering all aspects of licensing including firearms, taxis, alcohol as well as Coroners Inquests, Fitness to Practise Hearings (Nursing and Midwifery Council) and Sexual Offences Prevention Orders (SOPO's).
Joan is a member of the panel of Specialist Regulatory Advocates in Health and Safety and Environmental Law and has been appointed by the Department of Energy and Climate Change to hear Carbon Reduction Commitment Energy Efficiency Scheme (CRC) Appeals.
Joan is regularly recognised in the leading directories:- "Acts for both applicants and objectors on taxi, firearms, liquor and gambling licensing before licensing committees and the magistrates' court. She is highly regarded for her taxi licensing practice, which includes advising statutory bodies on matters of policy. "She is very approachable, thorough in her research and strong in her presentations in court."" Chambers UK 2015."She regularly represents police officers and police forces in misconduct and coronial proceedings" Legal 500 2014.