Police Authority Judicial Review Success
Trinity barrister, Joan Smith appeared at the Administrative Court in Leeds on the 12th July 2013 instructed by the Chief Constable of Cleveland Police in a Judicial Review hearing involving the variation of a Sexual Offences Prevention Order (SOPO) to impose a Location Monitoring Device, R (on the application of Paul Richards)-v-(1) Teesside Magistrates Court (2) Chief Constable of Cleveland  EWHC 2208 (QB).
Joan was involved in advising on the variation of the order before the application was made to Teesside Magistrates’ Court and advised on the drafting of the terms of the variation. The contested application at Teesside Magistrates was one of the first of its kind in the country, and the first for Cleveland Police, the Magistrates Court hearing was heard prior to the Grimsby case before HHJ Buckingham.
The Magistrates’ granted the variation of the SOPO after a full day of legal argument and evidence. The terms of the variation which were 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. "
In broad terms the Claimant contended that these additional provisions were unlawful firstly as being outside the powers conferred by the relevant provisions of the Sexual Offences Act 2003 and/or secondly as infringements of his rights under Article 8 of the European Convention in Human Rights. It was argued by the Claimant that the terms sought were positive acts and in any event, section 107 (1) SOA only provides that a SOPO "…prohibits the defendant from doing anything described in the order…"; it cannot, therefore, provide for the subject to carry out positive acts.
Lord Justice McCombe and Mr Justice Stewart rejected the Claimants grounds and dismissed the application for Judicial Review:
"In my judgment, sections 107 and 108 of the SOA 2003 do confer sufficient power to impose prohibitions such as those contained in paragraphs (7), (8) and (9) of this order. It seems to me that those provisions of the order, seen on their own, are properly to be seen as prohibitions and not as mandatory requirements of action by the claimant. Apart from being phrased as prohibitions as a matter of language, I consider that they are substantially, and not just formally, prohibitory.
I am not troubled in this respect by the absence of specific provision in the Act for the making of restrictions on movement in the absence of tagging. The Act permits, quite generally, the imposition prohibitions which are necessary for the protection of the public from serious sexual harm. It is not necessary to say a great deal more.
The "necessity" test is essentially the same for these purposes as the proportionality requirement in Article 8.2 itself and, in any individual case, the necessity of a restriction such as a tag would have to be examined very carefully. In this case, no argument in respect of "necessity" or proportionality arises. We are concerned only with the narrower question of whether the restriction is "in accordance with the law" and I find that it is."
Joan was led in the Administrative Court by Julian Knowles QC instructed by Chief Constable of Cleveland Police.
Joan and the barristers at Trinity will be only too happy to advise and assist Police Authorities or anyone who may find themselves affected by the ruling or wishing to discuss terms of SOPO’s generally. Please contact the Trinity Chambers clerking team on 0191 232 1927.
Joan Smith is member of Trinity Barristers Chambers' Judicial Review, Chancery, Personal Injury, Licensing and Regulatory practice groups. Joan has a nationwide practice base and delivers seminars in England and Scotland.