Cleveland Police, R (on the application of) v H [2009] EWHC 3231 (Admin)

[2009] EWHC 3231 (Admin)Case No CO/7932/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 20th November 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF CLEVELAND POLICEClaimantv
Between
HDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Miss R Smith (instructed by Cleveland Police) appeared for ClaimantMrs S Mallett (instructed by Paul Watson) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: There is an appeal by way of case stated from the decision of the Teeside Crown Court comprising Miss Recorder Matthews QC and two lay Justices. They were hearing an appeal by the respondent against the decision of the Magistrates that he should be made the subject of a Sexual Offences Prevention Order pursuant to section 104 of the Sexual Offences Act 2003.[2]The relevant provisions which enable the court to make such an order, so far as material to this case, are contained in section 104(1) of the Act which provides:
"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."
Subsection (4) provides:
"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."
But the particularly material provisions for the purposes of this case are contained in subsection (5) which provides:
"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."
[3]"Qualifying offender" is defined in section 106. Suffice it to say, for the purposes of this case, that he is a person who has been convicted of an offence which is listed in Schedule 3 or in Schedule 5 to the Act, or has been found not guilty of such an offence by reason of insanity, or has been found to be under a disability and to have done the act charged against him in respect of such an offence, or has been cautioned in respect of such an offence.[4]The respondent was a qualifying offender; of that there was no doubt, and indeed it was not disputed. The qualifying offence in question was a conviction for inciting gross indecency with a child on 8th November 1996. That offence involved the respondent, while in a car, offering a boy the sum of £5 if he would masturbate him.[5]In 2001 complaint was made to the police by a step-daughter of the respondent, alleging that since 1993, when she was nine, he had repeatedly exposed his penis to her and to her sister, masturbated before them and asked her to rub his penis. He denied that he had committed any of these matters when interviewed. He was, in fact, not prosecuted for those offences, but, when the matter was before the Crown Court, no explanation was given as to why that prosecution had not taken place. I understand that unfortunately the relevant file had not been located at that time and therefore counsel then representing the chief constable was not in a position to explain why that had not occurred. It has subsequently been said that it was due to administrative error, but that, of course, is not a matter that can be taken into account because the court below can act only upon the material that was put before it, and it is not and cannot be an error of law not to have regard to evidence which is not before the court.[6]No further matters were raised against the respondent, but in October 2007 he was interviewed under caution following a complaint by his granddaughter, then aged 7, that "he had got his privates out". He, when interviewed, denied that he had been guilty of those allegations. A prosecution did follow and there was a trial at the Crown Court in September 2008. The judge, the Recorder of Middlesborough, expressed concern about the poor quality and conflicting nature of the evidence of the complainant and, as a result of that, counsel for the Crown decided that no further evidence should be offered. The judge clearly agreed with that decision and directed the jury to acquit. That was the sum total of the material upon which the chief officer relied in order to justify the making of the order.[7]The order itself contains some very severe restrictions upon the ability of the respondent to live an ordinary life, because essentially he is forbidden to put himself in a position where he is able to be in contact with children unless either there is a representative from Social Services present, or no doubt there are sufficient adults to ensure that he is kept at a distance from the children; although to be fair the order as drafted does not make that limitation clear. It is obvious, quite independently of this case, that an order under section 104 is liable to contain serious restrictions on the ability of the individual to live an ordinary life, and if he does breach any of the conditions imposed upon him under the order, he is liable to go to prison if such a breach is established. It follows, as I say, that the effect of the order on him is serious.[8]It appears that what happened at the Crown Court, although this is not entirely clear from the form in which the case has been stated, was that since the only evidence before the court was that of the detective constable who reported what the nature of the complaints were, it was submitted that the chief constable relied only upon what amounted to hearsay evidence. As a matter of fact, the proper procedures had not been undertaken in respect of establishing the admissibility of that evidence, but that is not a point that is relied on by the respondent, and rightly so, because of course there is no question but that these are civil proceedings and therefore the strict rules in relation to the admissibility of hearsay evidence in criminal cases do not apply. Nonetheless, it is clearly desirable -- and it should occur in all these cases -- that the relevant notice is given so that there can be no argument about the admissibility of such evidence, nor indeed about what the nature of the evidence is if it is going to be relied on in order to justify the making of an order. That, perhaps, is more particularly the case before the Magistrates, because on appeal the evidence will have been deployed before the Magistrates' Court. But it is obviously desirable that the individual knows in advance, so far as that is possible, the case that he has to meet, whatever may be the obligations in relation to prior disclosure. I do not need to go into that in any detail. As I say, no point is taken about the admissibility of the hearsay evidence in the circumstances of this case.[9]Knowing what the material relied on was, the Recorder decided that she should approach the matter on what effectively amounted, it is said, to a preliminary issue; namely whether there was a case on the basis of that material. So she treated it as, in effect, an application that there was no case to answer but without hearing any evidence, merely relying on what had been put before the court in the form of hearsay. It has been suggested, in those circumstances, by Miss Smith, who has appeared on behalf of the appellant, the chief constable, that she ought to have enabled the police officer to be called to give evidence so that the reliability of the material which the chief constable relied on in order to justify the need to make such an order could be tested.[10]As will become apparent, the difficulty on Miss Smith's part is that it is impossible to see what, in the circumstances, the officer could have said and what evidence she could have given which could conceivably have made any difference and established in any way the additional reliability of the material beyond merely what she had set out in her statement. Her statement was before the Recorder.[11]The provisions of section 127 of the Magistrates' Court Act 1980 apply to the bringing of any complaint before the time limit expires. Section 127(1) provides:
"Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates' court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose."
There may well be arguments as to whether the words "matter of complaint arose" referred to the incidents or actions which are relied on to justify making the order, or whether they relate to the time when the chief constable was aware, because complaint was made to the police, of the allegations in question.[12]If I may take an example, X was convicted in 2005. Matters relied on after the conviction occurred in 2006, but complaint about those matters was not made until 2007. The question in such a case would be whether section 127 justified the bringing of proceedings to make an order in 2007, albeit the incidents relied on had by then occurred more than six months before.[13]I do not need to decide that issue, and I have not heard argument in sufficient depth upon it. I simply make the point that since this is essentially to protect vulnerable people from the actions of a sexual predator of one sort or another, it would be unfortunate if the mere fact that there had been a delay in making a complaint could shut out the complaint being brought before the Magistrates. One knows that when one is concerned with sexual offences against vulnerable people (it can be children but also sometimes adults) it can take time for them to pluck up the courage to make a complaint about what happened. It would be perhaps unfortunate if the words in section 127 were to be given too narrow a construction. But I do not need, as I say, to determine that issue in the context of this case, because the 2001 complaint was made then and related to conduct which admittedly had started some 8 or 9 years before, but which had continued. The 2007 complaint was made, it would appear, very soon after the alleged conduct had taken place.[14]But what it does mean, and Miss Smith accepts this, is that if the police had only had the 2001 matters, they would not have been able to make this complaint because they would undoubtedly have been out of time. That is clearly material, because if the learned Recorder was not wrong in law to have decided that the 2007 matters could not be relied on, then there would be nothing left which could be properly relied on in order to justify the making of the order in the circumstances of this case. Thus, on the facts of this case, what seems to me to be crucial is whether the Recorder was justified in deciding that she could reject the 2007 incident as being not established for the purposes of the making of the order.[15]I am told that some guidance as to the correct approach to section 104(5) would be valuable, because it is not clear precisely what standard of proof is applicable in order to establish the circumstances in which an order could be made.[16]The first matter that has to be established is that he is a qualifying offender. That, I would have thought, in virtually all cases, would be a matter that could not be in issue because it would depend upon a conviction of a particular offence. I appreciate that it is possible that in a given case there might be an argument about whether there had been a conviction of a particular qualifying offence or whether it was a case of mistaken identity, but the circumstances in which that could arise strike me as being highly improbable and rare in the extreme.[17]Then one goes to subsection (5)(b), and what has to be established there is that the person has, since the appropriate date (that is the date of the conviction in the circumstances of a case such as this), acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made. There are, as it seems to me, two elements in that: first, it has to be established that he has acted in a particular fashion; and secondly, a judgment has to be exercised as to whether those actions are such that create a reasonable cause to believe that it is necessary for such an order to be made. The Magistrates, or the Crown Court on appeal, must therefore decide, first, whether the particular action relied on has taken place, and secondly, whether such action as they find to have taken place gives reasonable cause to believe that it is necessary for such an order to be made.[18]There is thus, as it seems to me, clearly a need to establish the relevant action in question. There is no direct authority on how the matter should be approached in the context of section 104. However, the Divisional Court, did have to consider the correct approach in relation to section 2 of the Crime and Disorder Act 1998, which contained provisions which have been repeated in section 104 of the 2003 Act in slightly different form, but in a form which does not, in all material respects, differ for the purposes of the issue I have to decide.[19]The case in question is B v Chief Constable of the Avon and Somerset Constabulary [2001] 1 All ER 562, where Lord Bingham CJ gave the leading judgment. One of the issues raised was the standard of proof that was required, but, first, he decided that it was a civil proceeding and therefore prima facie the civil standard of proof applied. It is perhaps just worth noting what the precise provisions of section 2 of the 1998 Act were. It provided as follows:
"(1) If it appears to a chief officer of police that the following conditions are fulfilled with respect to any person in his police area, namely -- (a) that the person is a sex offender; and (b) that the person has acted, since the relevant date, in such a way as to give reasonable cause to believe that an order under this section is necessary to protect the public from serious harm from him the chief officer may apply for an order under this section to be made in respect of the person."
Thus, the only difference now is that instead of "sex offender" we have a "qualifying person", which is someone who has been convicted of a particular offence. So essentially the test under the 1998 act is the same as the test under the 2003 act.[20]In paragraph 24 of his judgment on page 570 of the report, Lord Bingham said this:
"In my judgment, however, to assess the character of the present proceedings it is necessary to look more closely into the nature of the issue to be decided by the Magistrates' Court. Part 1 of the 1998 Act is concerned with the prevention of crime and disorder, not the trial and punishment of those convicted. Magistrates' Court proceedings are initiated under the section by complaint, which is the initiating process for civil matters in the Magistrates' Court (see s 51 of the Magistrates' Courts Act 1980). The condition provided in s 2(1)(b) of the 1998 Act is in my judgment appropriate as a basis for administrative action, not criminal conviction. Furthermore, the problem to which s 2 is directed is not the detection, apprehension, trial and punishment of those who have committed crimes, but the restraint of those who have a proven record of sex offending and whose conduct founds a reasonable belief that a measure of restraint is necessary to protect members of the public against the risk of serious harm caused by further sex offending. 25. There is no room for doubt about the mischief against which this legislation is directed, which is the risk of re-offending by sex offenders who have offended in the past and have shown a continuing propensity to offend. Parliament might have decided to wait until, if at all, the offender did offend again and then appropriate charges could be laid on the basis of that further offending. Before 1998 there was effectively no choice but to act in that way. But the obvious disadvantage was that, by the time the offender had offended again, some victim had suffered. The rationale of s 2 was, by means of an injunctive order, to seek to avoid the contingency of any further suffering by any further victim. It would also of course be to the advantage of a defendant if he were to be saved from further offending. As in the case of a civil injunction, a breach of the court's order may attract a sanction. But, also as in the case of a civil injunction, the order, although restraining the defendant from doing that which is prohibited, imposes no penalty or disability upon him. I am accordingly satisfied that, as a matter of English domestic law, the application is a civil proceeding, as Parliament undoubtedly intended it to be."
Lord Bingham then went on to consider what the appropriate standard of proof was. He considered a judgment I gave in Percy v DPP [1995] 1 WLR 1382, and concluded that it was the civil standard. In paragraph 30 he said this:
"It should, however, be clearly recognised, as the Justices did explicitly recognise, that the civil standard of proof does not invariably mean a bare balance of probability, and does not so mean in the present case. The civil standard is a flexible standard to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters . . . [and he refers to various cases which support that] 31. In a serious case such as the present the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition in s 2(1)(a) is fulfilled, a Magistrates' Court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard. In deciding whether the condition in s 2(1)(b) is fulfilled the Magistrates' Court should apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them."
Thus, a distinction is there drawn between the civil standard, which is said to be, for all practical purposes, indistinguishable from the criminal standard in establishing whether he is a sex offender, but, in establishing whether he has committed acts which make it reasonable to make the order, there is the civil standard applied with the strictness appropriate to the seriousness of the matters to be proved.[21]In reality, as it seems to me, when one looks to see what the effect of the order is and the serious result that comes from it, and indeed when one considers that the acts in question may often, although not necessarily, amount to conduct which could be said to be breach of criminal law, it is, on the whole, desirable that the standard be the high one, which is indeed equivalent to the criminal standard.[22]That, in my view, is supported by the decision of the House of Lords in R (on the application of McCann) v Crown Court at Manchester [2002] UKHL 39. That was a case concerning whether an Anti-Social Behaviour Order was to fall within criminal or civil proceedings, and further, what was the standard of proof required in such proceedings. The ability to make an order is pursuant to section 1 of the Crime and Disorder Act 1998, incidentally the same Act that introduced the sexual offences orders under section 2, so, since the language is somewhat similar, one would perhaps expect the same approach to be adopted in respect of each order. Section 1 provided, so far as material:
"(1) An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely -- (a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and (b) that such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him . . . "
Thus, there is not the earlier stage of establishing in the 1998 Act that the individual was a sex offender and in the 2003 Act that he was a qualifying person, having been convicted of a relevant sexual offence. So the need to show that he had acted in a particular manner and that the order was necessary were in two separate subsections.[23]In the case of the order with which this case is concerned, the two matters -- that is to say the action and the justification, as a result of that action, for the making of the order -- are contained in the same subsection. But, as it seems to me, when one analyses the position, the reality is that the action which is the condition precedent for the making of the order is an action which has to be established to the relevant standard. In the McCann case, the standard was dealt with in Lord Steyn's speech at paragraph 37. He said this:
"Having concluded that the relevant proceedings are civil, in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary: In Re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, 586D-H, per Lord Nicholls of Birkenhead. For essentially practical reasons, the Recorder of Manchester decided to apply the criminal standard. The Court of Appeal said that would usually be the right course to adopt. Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of Magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard. If the House takes this view it will be sufficient for the Magistrates, when applying section 1(1)(a) to be sure that the defendant has acted in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself. The inquiry under section 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation. This approach should facilitate correct decision-making and should ensure consistency and predictability in this corner of the law. In coming to this conclusion I bear in mind that the use of hearsay evidence will often be of crucial importance. For my part, hearsay evidence depending on its logical probativeness is quite capable of satisfying the requirements of section 1(1)."
Lord Hope, in the same case, at paragraph 81 onwards, dealt with the question of standard of proof. In paragraph 83, having referred to the civil standard and stating that there were good reasons that when allegations were made of criminal or quasi-criminal conduct which it proved would have serious consequences for the person, that the higher standard should apply, he went on:
"This, as I have already mentioned, was the view which the Court of Session took in Constanda v M 1997 SC 217 when it decided that proof to the criminal standard was required of allegations that a child had engaged in criminal conduct although the ground of referral to a children's hearing was not that he had committed an offence but that he was exposed to moral danger. There is now a substantial body of opinion that, if the case for an order such as a banning order or a sex offender order is to be made out, account should be taken of the seriousness of the matters to be proved and the implications of proving them. It has also been recognised that if this is done the civil standard of proof will for all practical purposes be indistinguishable from the criminal standard . . . [and he cites B per Lord Bingham at paragraph 31]. As Mr Crow pointed out, the condition in section 1(1)(b) of the Crime and Disorder Act 1998 that a prohibition order is necessary to protect persons in the local government area from further anti-social acts raises a question which is a matter for evaluation and assessment. But the condition in section 1(1)(a) that the defendant has acted in an anti-social manner raises serious questions of fact, and the implications for him of proving that he has acted in this way are also serious. I would hold that the standard of proof that ought to be applied in these cases to allegations about the defendant's conduct is the criminal standard."
The other members of the House did not dissent from that approach. Indeed, Lords Hobhouse and Scott simply agreed with Lord Steyn and Lord Hope.[24]It seems to me, in those circumstances, that it is necessary to establish to the criminal standard what the individual who is to be made the subject of an order actually did. The court will then have to decide whether, based on what he is found to have done, it is necessary to make the order in question. But where there is an issue as to what he has done and whether he has acted in a particular manner, then evidence needs to be heard and tested on that issue. As Lord Steyn indicated, hearsay evidence can be relied on. What weight is to be attached to that evidence will depend upon a number of factors. They are helpfully set out in the Civil Evidence Act 1995. I need not refer to them explicitly, because obviously it is a matter for the judgment of the court as to what weight in a given case should be attached to them.[25]Mrs Mallett helpfully gave an example where it might be the case that action relied on was not action which in any way amounted to a criminal offence. For example, a convicted sex offender was observed to be, as she put it, hanging around near a children's play area or in a park. It may well be that that conduct, unless there is a good explanation for it, could justify a conclusion that it was necessary in the circumstances, because of what he had done in the past and because of the inference that could properly be drawn to the correct necessary standard, that he was clearly a danger to children and that therefore an order should be made. For example, the order could be that he should not be in the vicinity of any school or playground or whatever. One could imagine, depending on the circumstances the sort of terms that might be required. That might indeed depend on hearsay, but one would have expected, in a case such as that, that some investigations had been made by the police so they were able to establish the need for an order. For example, there might have been admissions. There might have been further corroborative evidence which albeit on its own might not suffice, but when read in conjunction with the hearsay evidence would produce a convincing case.[26]All this depends upon the facts of an individual case. But what is required, in my view, and I think it is made clear by a combination of B and McCann, is that the facts on which the judgment whether it was necessary to make an order is based must be established to the criminal standard. I say that because, although it is theoretically the civil standard, it, to all intents and purposes, would be criminal. As the House of Lords indicated in McCann, it is a matter of practicality and a pragmatic approach and so that the Magistrates are not left in any doubt, nor indeed is the chief officer of police left in any doubt, as to what the test is going to be, but that is the standard which has to be applied.[27]The question therefore is whether, on the facts of this case, the Recorder fell into error. So far as the second incident is concerned (that is to say the complaint in 2007), she noted that there had been a trial and there had been an acquittal. That, in itself, might, in a given case, not mean that it was not possible to rely on matters that were raised in the course of that trial. That would depend upon the evidence that had been produced, and perhaps on the reason why an acquittal had taken place. But here it was clear (and indeed the observations of the Recorder of Middlesbrough who had presided at the trial were produced) that the little girl was an entirely unreliable witness. It may be, of course, that that was for reasons other, possibly, than that she had not been truthful about the incidents that she said had occurred. But it did mean, as the Recorder of Middlesbrough indicated, that different accounts had been given and therefore it was impossible to say where the truth lay and consequently it would be quite wrong to convict.[28]In those circumstances, it seems to me, having regard to the applicable standard of proof, the Recorder in this case was entirely correct in deciding that reliance could not be placed upon those allegations in order to found a Sexual Offences Prevention Order against this respondent. That being so, it is accepted, for reasons I have already given, that it would be impossible to rely on the 2001 matters to justify an order. Apart from anything else, of course, they occurred some eight years ago and it is present danger that justifies the making of an order. Thus, quite independently of any question of the application of section 127, it would not be appropriate to rely on those alone.[29]There has been criticism raised against the Recorder for the approach she adopted to the 2001 matters, but, as Mrs Mallett points out, that criticism is not entirely justified. What the Recorder said was this (her judgment was annexed to the case stated):
"In respect of the allegations in 2001, as I understand it, Mr H was never charged with these allegations, nor were they prosecuted in any way. No reason has been given for that. It may be, as Miss Mallett suggests, that the evidence was of such poor quality. It may be that the family did not wish to pursue the matter because of the difficulties of pursuing a matter through the criminal justice system. We know not. However, the court is in a very difficult position in attempting to make findings to the requisite standard when the evidence is merely of an allegation having been made. That allegation is not being tested in any way, either in this court, nor in another court, a family court, a civil court or a criminal court. We do not know whether those allegations from those girls were subsequently retracted. It is not evidence in our view which is of sufficient standard to found the application. If, for example, one of the complainants relating to that allegation were to come and give evidence in this court and both I and my colleagues could make an assessment of that evidence and find, applying the appropriate standard as to whether the evidence was credible and capable of founding the application."
[30]It may well not be necessary in a given case for positive evidence to be given about an incident, although again, if there is a denial it may be in a given case that it is difficult to rely purely upon hearsay. That will depend upon the circumstances of the case and what material there is available, beyond merely a record of the complaint that was made. But, at the very least, it was necessary in the circumstances of this case for an explanation to be given why the prosecution had not taken place. If indeed it was because a view had been formed about the reliability or otherwise of the complainant, clearly that would have been a highly material factor. If, as I am now told, no case was brought because of administrative error, again the situation is that the complaints have not in any way been ruled out so far as their validity is concerned. But then one is left with: what is the evidence beyond the complaint having been made and is that sufficient in the circumstances to justify the making of an order?[31]It seems to me that in the circumstances of this case -- and I emphasise that I am concerned only with the circumstances of this case -- the Recorder cannot be said to have been wrong in law to have decided that she could not rely upon the 2001 matters. I make it clear that the mere fact that there has not been a prosecution would not necessarily justify a failure to rely on the matters that are alleged. Indeed, Mrs Mallett does not seek to argue the contrary. It is important to bear in mind that each of these cases depends upon the individual facts that are available to the chief constable.[32]I appreciate the importance of protecting children, and indeed adults, from the activities of those who have shown that they are liable to commit sexual offences. As everyone knows, the harm that can be done to children from the commission of such offences can be serious indeed. On the other hand, one has to balance the effect on the individual of the order, which is serious -- certainly in the circumstances of the order imposed in this case which was very serious -- and recognise that it would be wrong for such an order to result if, in fact, the individual had not been guilty of the acts which were relied on. I use the word "guilty" not in the criminal context, but simply to indicate that he was believed to have committed the relevant acts. As it seems to me, the House of Lords in McCann and this court in B has made it clear that the standard to be applied in assessing whether the acts have been done is the equivalent of the criminal standard.[33]In those circumstances, I would answer the question which is posed by the Recorder, namely "Was the decision of the Crown Court one that could reasonably have been reached?", "Yes". It was indeed a decision which could reasonably have been reached. In those circumstances this appeal must be dismissed.[34]MRS MALLETT: My Lord, Legal Aid has been granted to Mr H in relation to his representation in this matter, and I think I therefore have a duty to the Legal Aid Board to seek costs.

MR JUSTICE COLLINS: Yes, indeed.

[36]MRS MALLETT: They are estimated at this stage but will be in the region of £4,500.[37]MR JUSTICE COLLINS: I do not think it is open to me to make any assessment, this being a Legal Aid case.[38]MRS MALLETT: Yes.[39]MISS SMITH: My Lord, the only comment I would make on costs is to ask you to bear in mind simply that the prosecution was not brought through malice.[40]MR JUSTICE COLLINS: That is not relevant. This is actually a civil matter, and the normal rule is that costs follow the event.[41]MISS SMITH: Yes, my Lord.[42]MR JUSTICE COLLINS: There is no stigma. It is simply that that is the way it is done. If it had been a criminal matter it would have been costs out of central funds, but it is not. I am afraid that costs will follow the event and you will have to pay costs, which will be the subject of detailed assessment. This being a Legal Aid case, I do not think I can make a summary assessment, even if I wanted to. Mrs Mallett, do you need leave for Legal Aid assessment?[43]MRS MALLETT: Yes.

MR JUSTICE COLLINS: That you can have.

[45]MISS SMITH: Thank you, my Lord.[46]MR JUSTICE COLLINS: There is no question of appeal. As you probably know, my decision on this is final.[47]MISS SMITH: Yes, my Lord.[48]MR JUSTICE COLLINS: It is strange. I am not quite sure what the justification for that is. It is rather curious, is it not.[49]MISS SMITH: We have to end somewhere.[50]MR JUSTICE COLLINS: Yes, but there is no particular reason, on the face of it, why a case stated in a civil matter should not, if necessary, go to the Court of Appeal. There it is.

Cited in 2 later judgments