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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Jones v The Greater Manchester Police Authority [2001] EWHC 189 (Admin) (02 March 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/189.html Cite as: [2001] EWHC 189 (Admin), [2001] EWHC Admin 189

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice Strand London WC2
		2nd March 2001

Friday, 2nd March 2001

J U D G M E N T
1. LORD JUSTICE LATHAM: This is an appeal by way of case stated from the Crown Court at Manchester, which on 18 February 2000 dismissed the appellant's appeal from an order made by the Stipendiary Magistrate in Manchester on 9 July 1999, pursuant to section 2(1) of the Crime and Disorder Act 1998.
2. The appellant is now 64 years of age. He was 63 at the time of the hearing before the Crown Court. He had, prior to that hearing, some 30 convictions for sexual offences against young males, not only in this country, but also in other countries in Europe, in Australia and in New Zealand.
3. The order that was made against him by the magistrate was that he should not enter any public park, children's playground or public swimming bath in England and Wales at any time; he was not to entice, approach, communicate or be in the company of any person under the age of 18 years; and he was not to leave England and Wales or to apply for international travel documents without first notifying the police and without the permission of the court. That order was to last for life.
4. The Crown Court, dismissing the appeal in substance, amended it in a minor respect as far as access to parks were concerned, and reduced the age of those in whose company the appellant was not to be to 16 years of age.
5. The appeal to this court was originally brought on the broad basis that the proceedings under the Crime and Disorder Act 1998 were criminal proceedings for the purposes of Article 6 of the European Convention on Human Rights, and that the hearings, both before the magistrate and the Crown Court, did not carry with them the procedural safeguards that were required by Article 6. Secondly, the order that was made amounted to a breach of Article 8 of the European Convention on Human Rights, and that the provisions of the Act did not, as applied, meet the requirement that any interference with this applicant's right to his private life should be in accordance with the law.
6. The section of the 1998 Act with which we are concerned reads as follows:

"2(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."

7. Subsection (4):

"The prohibitions that may be imposed by a sex offender order are those necessary for the purpose of protecting the public from serious harm from the defendant."

8. The factual basis upon which the order was sought was that the appellant had been convicted of a relevant offence in May 1999, that being an offence of indecent assault on a young male, in respect of which he was placed on probation. Within a few days of that offence the appellant firstly approached a 13-year-old boy at a bus stop, engaging him in conversation and touching his thigh; then a few days later in Rochdale was seen approaching a young male in a public park with whom he entered into conversation. When the police arrested him, he was found to be in possession of a plastic carrier bag containing pornographic literature, condoms and soiled tissues.
9. It is not suggested on behalf of the appellant today that those facts were not properly proved, both before the magistrates and before the Crown Court. The dispute centres upon the other material which was before the Crown Court, namely the evidence of a Mr Beckett, a consultant psychologist, and a Mrs Parkin, a probation officer. Their evidence, taken together, was described in the Crown Court Judge's judgment in the following terms:

"...the defendant is a fixated paedophile with no insight into his offending and no inclination to seek treatment which would reduce the risk. There is a high risk of re-offending. The pattern of offending has been constant and consistent. The defendant starts conversations with young boys. He then seeks to sexualise that encounter, that conversation, by showing magazines and things of that sort which he carries in carrier bags, as indeed he was doing on 20 June."

10. On behalf of the appellant, it is submitted by Mr Rowe QC that that evidence is evidence of mere propensity and has no place in an inquiry such as that in which the magistrate and the Crown Court were engaged under section 2 of the Crime and Disorder Act. He makes that submission on two grounds. Firstly, he submits that it is a principle of the European Convention of Human Rights that where there is an interference with the rights of citizens, then that interference can only be justified if it is in accordance with law, which implies, he submits, that there is a measure of precision and foreseeability in the legal provisions which are relied upon in order to justify the interference with the right of that individual. He submits that the admission of evidence of propensity breaches that principle and amounts to a breach of the provisions of both Article 6 and Article 8.
11. As far as Article 6 is concerned, he submits that, in particular, it breaches Article 6(2), which requires that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. He further submits that article 6(1) carries with it the same requirement by reason of the use of the phrase "everyone is entitled to a fair and public hearing", which itself, he submits, implies a requirement for there to be, in relation to the proceedings, precision and foreseeability as to the material which the person so concerned has to face.
12. Secondly, he submits that the nature of the proceedings in this particular case were such as to justify the conclusion that, in any event, they should be categorised as criminal proceedings because of the width of the order that was ultimately made, which imposed restrictions on this appellant for life.
13. Mr Rowe, on behalf of the appellant, has had to accept that this court has dealt with the question of the appropriate categorisation for the purposes of Article 6 of proceedings under section 2 of the Crime and Disorder Act in B v Chief constable of Avon and Somerset Constabulary [2001] 1 WLR 340. The then Lord Chief Justice, Lord Bingham, held that the proceedings under section 2 were not to be categorised as criminal proceedings for the purposes of Article 6, but civil proceedings.
14. It is also accepted by Mr Rowe that in relation to section 1 of the Crime and Disorder Act 1998, which relates to anti-social behaviour orders, this court came to the same conclusion as to the appropriate categorisation of such proceedings in R v Crown Court at Manchester [2001] 1 WLR 358, when the present Lord Chief Justice considered that precisely the same considerations applied to proceedings under section 1 as applied to those under section 2 of the Act. The decision of this court in the Crown Court at Manchester was upheld in the Court of Appeal yesterday, 1 March 2001 (BAILII: [2001] EWCA Civ 281 ).
15. It follows that Mr Rowe has an uphill task insofar as his submissions require us to approach the proceedings in question as if they were criminal proceedings. It seems to me that that quite simply is a hopeless submission. Nonetheless, Mr Rowe seeks to support it on the basis that the facts of this particular case are such as to justify that categorisation. That, with respect, is to misunderstand jurisprudence of the European Court and the two decisions to which I have referred. The proceedings under section 1 and section 2 of the Crime and Disorder Act 1998 will always be appropriately categorised as civil proceedings, not carrying with them any of the procedural requirements of Article 6(2) or 6(3), whatever the facts of the particular case and the nature of the order made.
16. Clearly, however, the proceedings must be fair, pursuant to Article 6(1); and because the consequence of an order under either section 1 or section 2 of the 1998 Act is the restriction of liberty inherent in the type of order envisaged by those sections, there is an interference with the private life of the defendant, which attracts the protection of Article 8. Accordingly, the interference must be in accordance with law and such as is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country or for the protection of the public from disorder or crime, for the protection of health or morals or for the protection of rights and freedoms of others.
17. Essentially, the complaint by Mr Rowe, on the appellant's behalf, is that it is unfair for evidence of propensity to be admitted because of its inherent vagueness and because of the difficulty any defendant has in meeting such evidence. He submits, accordingly, that evidence of propensity should play no part in the consideration by the court of either section, and that the court should simply find the appropriate facts and then draw the appropriate inference from those facts.
18. I find this submission impossible to accept. The purpose of any proceeding under section 1 or 2 of the Act is to seek to predict the extent to which what has happened in the past gives rise to reasonable cause for believing that an order is necessary to protect the public from serious harm. Clearly, a court would be entitled to rely simply on factual evidence and to draw appropriate inferences from that factual evidence. But it seems to me that, particularly in relation to proceedings under section 2 of the Act, which are concerned with sex offenders, the court is likely to be helped by expert evidence, which enables the magistrates to evaluate with more accuracy, and may it be said, more fairness to the defendant, the question which the section poses.
19. Such material is, in my judgment, relevant; and I can see no justification for seeking to exclude it. It would seem to me likely to be more precise and foreseeable in its consequences than the inferences of a court unhelped by such evidence. It is material which is capable of being challenged by a defendant; and indeed a defendant would be entitled to produce contrary evidence if he so wished. It follows that the procedure is fair.
20. For those reasons, I cannot see how it can be said that the admission of evidence going, as is described, to propensity can in any way be said to be a breach of the provisions of either Article 6 or Article 8. The admission of such evidence does not render the proceedings unfair, and the proceedings are quite clearly, in my view, proceedings which ensure that any order that is made which interferes with the private life of a defendant is in accordance with law and for the appropriate purposes.
21. However, a discrete submission has been made by Mr Rowe to the effect that the order which was made, namely an order to last for life, was disproportionate and accordingly perverse. The matter is clearly one, as he accepts, of impression. Given the lengthy history of offences, the age of this appellant, and the fact that there remains open to him the possibility of an application under section 2(6) of the Act to vary the order, there is nothing, in my judgment, which could justify the conclusion that the magistrate in the first instance and the Crown Court subsequently were perverse in concluding that the order should last for life.
22. In my view the mere fact that the original request on behalf of the chief officer of police was that the order should last for five years, subsequently amended to ten years, does not affect the position. The magistrate and the Crown Court were entitled, in my judgment, to conclude that the length that they imposed was appropriate on the facts of this particular case.
23. For those reasons, I would dismiss this appeal.

MR JUSTICE ASTILL: I agree.

LORD JUSTICE LATHAM: Yes, Mr Rowe.

MR ROWE: My Lord, I ask for a legal aid taxation.

LORD JUSTICE LATHAM: Yes. Any other consequential orders?

MR GOLDSTONE: No application, my Lord. Thank you.

LORD JUSTICE LATHAM: Legal aid taxation, Mr Rowe.

MR ROWE: I am grateful.

LORD JUSTICE LATHAM: Can we then deal with the question of what, if any, directions should be given in relation to the criminal matter.

MR ROWE: Yes.

LORD JUSTICE LATHAM: You said that Mr Brennand was going to deal with that; is that right?

MR ROWE: Yes, my Lord.

LORD JUSTICE LATHAM: Or have you been instructed by Mr Brennand now?

MR ROWE: My Lord, I would not use that verb. But, my Lord, Mr Brennand has complete mastery of this side of the case, and, my Lord, I would ask him to assist.

LORD JUSTICE LATHAM: Yes, Mr Brennand.

MR BRENNAND: My Lord, yes.

LORD JUSTICE LATHAM: In the light of what I was saying earlier about the Recorder of Manchester's comments, I think this is likely to attract or be the sort of case that ought to attract a reference to the Criminal Sentencing Advisory Board.

MR BRENNAND: Yes, I would anticipate that would be the position. Can I suggest these potential orders.

LORD JUSTICE LATHAM: Yes.

24. MR BRENNAND: In my advice dated 15 December, I suggested that of course the full transcript of the sentencing remarks ought to be made available. It may well be that it would be useful and appropriate for a transcript of the prosecution opening to be made available, together with the exchanges as between the sentencing judge and myself which deal with the potential issues that are likely to arise. It was very full sentencing remarks, but that may well be an appropriate order and may well be perhaps useful and may well avoid the attendance of Crown Counsel. This is the type of case where the chronology is such that the court might have felt it appropriate to have the attendance of Crown Counsel.

LORD JUSTICE LATHAM: That was a matter which had been going through my mind, I have to confess, Mr Brennand.

MR BRENNAND: It is a matter for your discretion.

LORD JUSTICE LATHAM: Yes.

MR BRENNAND: It may well be that in those circumstances, one or the other is appropriate, but certainly it is something that I place before you for your consideration.

LORD JUSTICE LATHAM: I would have thought in fact that it is probably a good idea to ask for a transcript of the opening and the discussion, if that is what it was, between you and the Recorder.

MR BRENNAND: Yes.

LORD JUSTICE LATHAM: Because that will enable the Criminal Sentencing Advisory Board to get to grips with the whole case much more easily. I would have thought that sensible. But at the end of the day, I think that it might be wise to ask the Crown to be represented --

MR BRENNAND: Yes.

LORD JUSTICE LATHAM: at the hearing.

MR BRENNAND: Certainly.

LORD JUSTICE LATHAM: Just in case, because one does not want to find that it has to be adjourned for any reason.

MR JUSTICE ASTILL: Were the antecedents before the court in the opening?

MR BRENNAND: Yes, they were. But in relation to that potential issue, there may well be a recalculation of the days of breach of licence within the context of this case, so we will need to resolve that. It will be a minor matter. It is only a very small aspect.

Certainly, I will undertake to perfect the grounds of appeal that exist in this case within 14 days and also undertake to prepare a list of authorities such as they might be relevant, although there are very few authorities, if any, that apply. But within 14 days, and include in that what the defence and the defendant would contend to be the chronology.

LORD JUSTICE LATHAM: Yes.

MR BRENNAND: The appellant himself should be present, in my respectful submission. He is very anxious.

LORD JUSTICE LATHAM: He is an appellant, and therefore he will have the right to be present. There is no problem about that.

MR BRENNAND: I would ask that his production be made. There are two unusual features. There is certainly an appeal against sentence in relation to a very similar matter from the decision and sentence of His Honour Judge Proctor at the Preston Crown Court. There may well be a conjoining of that appeal, and I will undertake to liaise with the registrar in relation to that.

LORD JUSTICE LATHAM: Could you liaise with the registrar, please.

MR BRENNAND: I have been approached by defence counsel in relation to that separate matter. Unusual in this case, certainly a certificate was granted by the Recorder of Manchester, and my instructions are that a notice of appeal against sentence was filed on 28 November. I sent to the registrar's office on 15 December my grounds of appeal and also my advice. They unusually were returned to me in January with an indication that there was some potential mistake as to whether in fact matters had been lodged.

I am not certain that it is needed within the context of the case because I made inquiries at the Crown Office in Manchester, and they confirmed that so far as they were concerned, all the papers that I had supplied to them had been sent down, although through inquiries recently, I was endeavouring to find the case reference number and it did not seem to have been assigned.

In case leave is required for this appeal out of time, might I ask for it today, if there be any error or administrative misunderstanding.

LORD JUSTICE LATHAM: I have ticked extension of time in which to apply for leave, but that cannot be right because you have leave.

MR BRENNAND: Yes. Well, I have the certificate, but I think the appeal notice must be lodged within 28 days in any event. As I understood it, the form NG1 was lodged on 28 November, which would obviate any application for leave.

LORD JUSTICE LATHAM: I can tell you that we have a document here which says that – goodness knows what the extension was in question, but you have been given an extension of time for something --

MR BRENNAND: Well, that is --

LORD JUSTICE LATHAM: by Mrs Knapman, and I have a feeling that that, in fact, deals with matter that you are concerned with. I know that when the case officer came to speak to me this morning, there was no suggestion of there being any difficulties in the way of the appeal.

Could I ask you to perhaps write out the list of directions which you have mentioned and hand it in. That would, I am sure, assist the court.

MR BRENNAND: Yes, I will certainly do that. There is no further application.

LORD JUSTICE LATHAM: The associate there will be the one dealing with the criminal appeal.

MR BRENNAND: Yes.

LORD JUSTICE LATHAM: There was not anything you wish to say, Mr Goldstone?

MR GOLDSTONE: No, thank you, my Lord.