Rare High Court Decision on Interim Sexual Risk Orders

24 May 2022

The High Court dismissed an application for judicial review against a series of interim Sexual Risk Orders (“iSROs”). In doing so, it gave some helpful guidance to practitioners (particularly on Article 8 ECHR).

The Facts

The Magistrates’ Court had imposed an interim SRO (“iSRO1”) on the Claimant. A Sexual Risk order is a civil order, made in the Magistrates’ Court pursuant to s.122A Sexual Offences Act 2003 (“SOA 2003”). SROs are commonly used to protect the public against sexual offenders, including prior to conviction.

In this case the Claimant had not opposed iSRO1. In essence, it prevented him from having contact with girls under the age of 18. Unfortunately, he allegedly breached iSRO1 and was charged.

The Claimant’s representatives appealed iSRO1 to the Crown Court (“CrC”). The CrC dismissed the appeal, but made some minor variations (thereby producing “iSRO1A”).

Due to delays in the criminal proceedings, the Magistrates imposed another identical interim order at the expiry of iSRO1A (“iSRO2”). Further delays led to an additional SRO (“iSRO3”).

The Judicial Review

It was accepted that the Claimant would not have gained a defence to the criminal proceedings even if he succeeded in the judicial review [4]. Courts orders must be obeyed until they are set aside/ varied (R (Majera) v SSHD [2021] UKSC 41). However, the Claimant hoped success might lead to the CPS reconsidering its decision to prosecute and/ or provide mitigation at sentencing [4].

The grounds for judicial review were as follows:

  1. The CrC had failed to properly consider the elements of the statutory test, namely the meaning of:
    1. ‘Just’ (as referred to in s.122E(3) SOA 2003);
    2. ‘Acts of a sexual nature’ (s.122A(2)(9) S0A 2003);
    3. Whether it was ‘necessary’ to make an iSRO to protect the public from harm caused by the Claimant (s.122A(6) SOA 2003).
  2. It was Wednesbury unreasonable to include young women who are aged over 16.
  3. It was unreasonable to prevent the Claimant from contacting a lady described as his ‘girlfriend’.
  4. The iSROs breached Article 8 ECHR, particularly by banning the Claimant from contacting his ‘girlfriend’.

The Decision

The High Court dismissed the application permission for judicial review. In relation to the alleged misinterpretation of the statutory test, the court concluded:

  • When considering the question of whether it was ‘just’ to impose an order, the CrC had rightly taken into account the statutory criteria for imposing a full order [24].
  • The CrC had identified a risk of the Claimant ‘recruiting vulnerable young women so as to place them in a position of sexual exploration and at risk of sexual assault’. That behaviour was plainly capable of being ‘an act of a sexual nature’ which gave rise to a risk of harm and could make it necessary to make an order [25]. The Home Office Guidance cited similar behaviour as an example.
  • When considering necessity, the CrC was entitled to have regard to “all the circumstances”. This included evidence of the Claimant’s conduct across different time-lines and on different occasions (e.g. the girls’ ages, their state of intoxication etc) [27]. It also included evidence that the Claimant appeared to have breached the iSRO, including by making 140 attempts to contact his ‘girlfriend’ [27].

The High Court concluded, contrary to ground two, that the CrC could make an order to protect ‘young women’ and not just underage girls [26].

In relation to the third ground, the Claimant had failed to produce any evidence that Y was his girlfriend. It was notable that the Claimant did not know her address or age [28]. The associated A.8 ECHR arguments also failed as a result.

Courts can, and should, be critical when assessing the existence of relationships capable of giving rise to A.8 concerns in the context of potentially vulnerable individuals. Matters of vulnerability, risk etc make it particularly important that such relationships are evidenced properly [32].

Finally, if Y really was the Claimant’s girlfriend he could have applied to amend the iSRO. His failure to do so meant he had not availed himself of an alternative remedy to judicial review [33].

Comment

It is unusual for interim SROs to be challenged in the higher courts, making this case particularly valuable for those seeking to uphold and/ or challenge such orders. The following points are notable:

  1. The High Court had regard to the evidence used in ongoing criminal proceedings when deciding whether to uphold the interim SRO (see [27]). The proper relationship between ongoing civil and criminal proceedings is legally complex, but this decision assists forces seeking to obtain orders based on allegations for which a Respondent is being prosecuted.
  2. The court’s scepticism of the human rights argument was notable. Any human rights claim must be properly evidenced. The courts should be cautious about upholding such a claim and the vulnerability of potential victims forms part of any proportionality analysis [32].
  3. Lawyers should make use of the helpful Statutory Guidance on SROs. It formed a central part of the High Court’s decision in this case [25].
  4. Any order imposed should not be unduly onerous. Depending on the facts, a carve-out may need to be created to allow Respondents to see their family. It is advisable to carry out a proper assessment of this issue, with advice from social services if possible.

BAILII link


Authors

Conor Monighan

Call 2019

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