Smith, R (on the application of) v Derbyshire County Council [2008] EWHC 84 (Admin)

Case No CO/9223/2008[2009] EWHC 84 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 19th November 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CRANSTON
Between
THE QUEEN ON THE APPLICATION OF SMITHClaimantv
Between
DERBYSHIRE COUNTY COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr S Cragg (instructed by Kieran Clarke Green) appeared for ClaimantMiss K Scott (instructed by Derbyshire County Council) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE CRANSTON: This is an application where the claimant seeks permission to challenge a decision of the Derbyshire County Council to require him to be accompanied at all times when he is not at his home address, and in particular to refuse him permission to travel unaccompanied to visit his mother in Blackpool. They purport to do this under a Sexual Offences Prevention Order. In my judgment this gives them no authority to restrict the liberties of the claimant in this way. Munby J made an order on 6th October that the permission hearing and the full hearing should be heard as a matter of urgency. Earlier I ordered that there should be no reporting restrictions on this judgment, except that the address of the claimant should not be revealed other than that he lives in Derbyshire. In my view, while it is necessary that the interests of the claimant and public order should be taken into account, these are trumped in this case by the interests of open justice and accountability, including my own accountability for what may be an unpopular decision. Background[2]The claimant is a man with mild learning disabilities. He is subject to a Sexual Offences Prevention Order ("SOPO"). The SOPO has a number of prohibitions and the claimant has no objection to these. However, Derbyshire County Council ("the Council") has implemented the SOPO in a manner so that the claimant is not permitted to leave his residence unless accompanied. When persons are not available to accompany him, he is effectively incarcerated at his home. The matter has come to a head because he sought permission to travel unaccompanied to Blackpool to visit his mother, who is ill. In a letter dated 11th July 2008 the Council refused permission and reiterated its view of the ambit of the SOPO.[3]The background to the SOPO is that the claimant was convicted of sexual offences in 1998 against underage girls. The original order, made in 2003, was extended in January 2008 and is due to run until January 2013. It was made on the application of the Chief Constable of Derbyshire ("the Chief Constable"). The current order reads as follows:
"It is adjudged that the offender has acted in a manner which gives reasonable cause to believe that an order is necessary to protect the public from serious harm from him. It is ordered that the defendant is prohibited from -- (a) approaching children under the age of 16; (b) going to swimming pools unless accompanied by a responsible member of staff from a statutory agency (eg, NHS or Social Enable Housing or Derbyshire Community Housing Society); (c) going within 100 metres of a school or playground; (d) being in the company of anyone under the age of 16 unless accompanied by a responsible member of staff from a statutory agency (eg, NHS or Social Services) or a contracted independent care provider (eg, Enable Housing or Derbyshire Community Housing Society); (e) residing at any address except that at which he has been directed to reside by Derbyshire County Council Social Services."
In addition there is this paragraph:
"None of the above prohibitions will operate to prohibit contact with children or young persons under the age of 16 years that is inadvertent and unavoidable, in the course of the defendant's lawful daily activities."
[4]In February 2008 there was a care plan review and the police stipulated that if visits to Blackpool were to take place in the school holidays, the claimant should always be accompanied by two support workers. They also stipulated that visits out of the county should be avoided and that none should take place in school term times. In April of this year, the claimant's solicitors queried the legal authority for those restrictions. Having not received a response, they wrote a pre-action protocol letter asking that the claimant be given permission to undertake unaccompanied travel outside his accommodation any time if he so wished, and pointing out that the restrictions were not covered by the SOPO. There was a response on 18th June 2008 which stated that authority for the restrictions derived from a multi-disciplinary team and the police, and that the Council was working within the guidelines of the SOPO.[5]On 11th July 2008 the Council responsed to the pre-action protocol letter. They reiterated their contention that the supervision restrictions were authorised by the SOPO and that the imposition of a ban on the claimant leaving his accommodation unaccompanied was something which was covered by the SOPO. The claimant's request for permission to travel away from his residence was not one to which they could accede. The letter suggested that the claimant or the police should apply to the Magistrates' Court for clarification of the SOPO.[6]On 10th October 2008 the solicitor to the Chief Constable wrote that the supervision of the claimant was a voluntary arrangement and that therefore "the allegation that the SOPO was used to enforce 24-hour supervision of [the claimant] is factually incorrect". The letter went on to state that constant supervision of the claimant is "clearly not authorised by the order". The letter concluded as follows:
"Any application to add a condition to the order to, effectively, authorise such supervision would, in my view, stand no prospect of success for a number of reasons: firstly, this would be a positive requirement when the order must be expressed to be prohibitive. Secondly, the order already contains the necessary and proportionate prohibitions to protect the public from serious sexual harm. The supervision is expressed in your letter to be necessary to prevent [the claimant] from breaching the order. It could not be considered appropriate to have a prohibition in the order simply to prevent such a breach."
The Legal Framework[7]The original sex offender order involving the claimant was made under section 2 of the Crime and Disorder Act 1998. Its renewal was under the Sexual Offences Act 2003. Section 104(1) of that Act authorises the court to make a SOPO:
"(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."
Thus the court is required to be satisfied of the necessity to protect the public from serious sexual harm from a defendant. Section 107 sets out the ambit of a SOPO:
"(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 than 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."
Section 108 contains powers for the variation and renewal of a SOPO, including provisions for the renewal of an order made under the previous legislation. Section 113 contains the criminal penalties which obtain in the case of a breach of an order.[8]In addition to the statutory provisions, the Home Office has issued guidance. The guidance contains a number of provisions, including a reminder that the protection of the public is the key aspect. Paragraph 5 of the guidance reads:
"It must be remembered that the only prohibitions which can be imposed by a sexual offences prevention order are those necessary for the purpose of protecting the public from serious sexual harm from the defendant. These can, however, be wide ranging. An order may, for example, prohibit someone from undertaking certain forms of employment such as acting as a home tutor to children. It may also prohibit the offender from engaging in particular activities such as visiting chat rooms on the Internet. The behaviour prohibited by the order might well be considered unproblematic if exhibited by another member of the public -- it is the offender's previous offending behaviour and subsequent demonstration that he may pose a risk of further such behaviour, which will make him eligible for an order."
In addition, paragraph 18 of the guidance contains a warning regarding whether or not reporting restrictions should be imposed when a SOPO is being considered:
"It is a basic principle of the justice system in this country that justice is dispensed in public and restrictions should only be imposed where it is in the interests of justice to do so. However concerns have been expressed about the likelihood of an application for an order provided for in Part 2 of the Sexual Offences Act 2003 calling attention to the presence of sex offenders in the community.These concerns can be magnified in light of an application for one of the orders that can only be made in respect of convicted sex offenders, which, by their application, demonstrates that the police have concerns about the immediate risk they pose to the community. Such concerns are understandable but misplaced, since the police and the courts are, in fact, acting together to secure improved protection of the public. Any increase in public disorder not only diverts police resources but could encourage and allow the defendant to abscond from the arrangements the public protection agencies have put in place to manage the risks he poses."
Preliminary Issues[9]In this application, there are two preliminary issues. The first concerns the capacity of the claimant to bring the case. As indicated, he suffers from mild learning disabilities. Earlier in these proceedings this was raised, but Miss Scott for the Council has conceded that for the purposes of this hearing he should be regarded as having capacity. Therefore there is no need for me to address that issue.[10]The other preliminary matter concerns anonymity. The guidance indicates that there may well be concerns among the local community about someone subject to a SOPO. In some cases community concerns, while understandable, may be misplaced and ultimately lead to public disorder which can divert police resources and also have an effect on the person who is subject to the order. Those features favour anonymity.[11]It seems to me, however, that the key consideration with anonymity is that contained in the first part of paragraph 18 of the guidance that it is a basic principle of justice that it is dispensed in public. In this case the criminal proceedings seem to be in the public domain. Further, it would appear that there are a number of individuals who may have been abused by this claimant. They have an interest, at the least, in knowing about the supervision arrangements in place regarding him. If an anonymity order would prevent the County Council from sharing information with other agencies, that would certainly tell against it. In my view, the principles of open justice have priority in this case. I decline to make an anonymity order except in relation to the place of residence of the claimant. Ambit of the SOPO[12]Let me turn to the main issue, which is the ambit of the order. There is no doubt that this claimant is a risk to members of the community. The psychology report of October 2006 observed that the claimant did not acknowledge that he presents a risk and was unable to understand why others should think that, although he did acknowledge that he needed support. In a further psychological report of September 2008, the report writer, Miss Moss remarks:
"Tim continues to present a high risk of re-offending against young female girls. This is supported by his self-disclosed sexual interest in children, his distorted view of relationships between adults and children, and the presence of other cognitive distortion surrounding sexual offending."
[13]There is a witness statement of Miss Jennifer Downs, who is employed by the County Council as the care manager dealing with provision of services to the claimant. She has known the claimant for some eight years. She confirms that the County Council had received the assessment by Miss Moss and had taken the view that there is a significant risk to the community from the claimant. One can well see why the court granted the SOPO. In fact no question is raised about the appropriateness of the order. The claimant himself acknowledges that the prohibitions are appropriate and has said that he wishes to abide by them. However, the issue is the ambit of the order.[14]On behalf of the County Council, Miss Scott submitted that the decision of the 11th July 2008 was based on the fact that, at the time the Magistrates' Court made the orders, there was an understanding that the supervision arrangements would subject the claimant's movements away from his residence to restrictions, such as the requirement that he always be accompanied. That applied because he had a limited capacity to adhere to the terms of the SOPO without constant supervision. In her submission, the court made the SOPO against this background. These supervision restrictions were envisaged by the court when it made the order and are implicit in its terms.[15]It seems to me that when the liberty of the subject is at issue, a court order which imposes restrictions must be taken at face value. Unless the order contains the explicit restrictions to which the person is said to be subject, it is my very firm judgment impossible for them to be imposed. There is no need to invoke the support of the European Convention on Human Rights on the matter. This approach to the liberty of the subject has been long enshrined in the common law. Restrictions on liberty have to be clearly justified by law. In this case the operation of the order does not extend to these requirements which the County Council would seek, and so far has been able, to apply.[16]Has the claimant consented to the restrictions hitherto imposed? It is said on behalf of the County Council that the claimant has, in the past, indicated a willingness to subject himself to the supervision arrangements which have operated. Miss Scott concedes that, at best, the willingness of the claimant to agree to these restrictions is ambiguous. She points out that in his witness statement the claimant contends that his consent was predicated on what he was told about the ambit of the SOPO. On the other hand, he has always indicated to the County Council that he understands the need for the supervision arrangements to keep himself safe. Importantly, Miss Scott observes, the claimant continued to report this as his view, which is said to be reflected in instructions to his solicitors. On the other hand, there is the clear indication that the claimant wanted to travel to Blackpool to visit his mother, and that the County Council refused this unless he could be accompanied.[17]In my view, Miss Scott is right to acknowledge that this matter is unclear. It certainly appears to be the case that in the past the claimant has consented to the restrictions in his own interest, notwithstanding that in more recent times he has indicated -- certainly in relation to the visit to see his mother -- that he is no longer content with them. The most appropriate course, in my view, is that this matter of consent, and any remedies which might flow from its absence, should be dealt with in a separate hearing before the local County Court. It can hear the evidence and decide the issue.[18]The result is that I grant permission, quash the decision of the 11th July 2008 and order that the other matters be tried before the County Court in Derbyshire.[19]MR CRAGG: My Lord, because we are in a rolled up hearing then at some point there will be a transcript.

MR JUSTICE CRANSTON: I grant permission and --

[21]MISS SCOTT: My Lord, you mentioned earlier the possibility of suspending the order for a couple of weeks to see if an agreement can be obtained between the claimant and the defendant. My instructions are to make that application.

MR JUSTICE CRANSTON: Mr Cragg, what do you say?

[23]MR CRAGG: My Lord, I do not think we would object to that. We are not here to achieve anything.

MR JUSTICE CRANSTON: Is a fortnight sufficient?

[25]MISS SCOTT: Yes.

MR JUSTICE CRANSTON: Fine.

[27]MR CRAGG: My Lord, the only other application is for the claimant's costs of this matter and detailed assessment for public funding purposes.[28]MISS SCOTT: My Lord, I do not think I can resist that.[29]MR JUSTICE CRANSTON: Yes. Thank you very much to the two of you. As I said earlier, the case was presented excellently and it makes it so much easier.