Commissioner of Police for the Metropolis, R (on the application of) v Croydon Crown Court & Anor

A sexual offences prevention order is a preventive measure, but it may be made only where necessary to protect the public or particular members of the public from serious sexual harm. The court must assess separately the risk of recurrence and the likely seriousness of the harm if recurrence occurs. The statutory test is fact-sensitive. It does not require proof of lasting injury, nor does the possibility that some person might suffer serious harm make an order mandatory. Judicial review is concerned with misdirection or a decision outside the proper range of judgment, not with rehearing the merits. Necessity and proportionality remain significant safeguards.

The Commissioner sought judicial review of a decision of Croydon Crown Court, sitting on appeal from the magistrates’ court, which had allowed an appeal against a sexual offences prevention order made against the interested party. The order would have prohibited him from entering railway stations or travelling by train without specified exceptions or police authorisation.

The interested party had convictions for repeated low-level sexual touching in public places over approximately 30 years. The central issues were whether the Crown Court had misunderstood the statutory meaning of serious sexual harm, failed properly to assess risk and necessity, or reached a conclusion outside the range of judgment available to it.

1. Application refused. The Crown Court had not misdirected itself and its conclusion was within the proper ambit of judgment available to it. The judicial review was therefore refused with costs.
2. Sections 104(1) and 106(3) of the Sexual Offences Act 2003 require the court to be satisfied that an order is necessary to protect the public or particular members of the public from serious sexual harm. The order is preventive, but the critical statutory word remains “serious”. Whether harm is serious is an evaluative question in each case.
3. The court must assess two matters: first, the level of risk of recurrence; and secondly, the level of harm likely to result if recurrence occurs. The assessment must consider the likely effect on the relevant public or particular vulnerable individuals. The possibility that some people might suffer serious harm does not by itself establish necessity.
4. There was no indication that the Crown Court required lasting injury, confused harm with injury, minimised the conduct, or treated the existing probation order as determinative. The Crown Court had considered the evidence, including risk assessments, the possible vulnerability of the victim, and proportionality.
5. Necessity is a significant threshold. An order is not justified merely because it would be desirable. The decision whether to impose an order, and whether its terms are proportionate, may legitimately produce different answers in different cases.
6. R v Richards was relevant in confirming that the statutory provisions should not be restrictively construed by analogy with the dangerous-offender provisions of the Criminal Justice Act 2003. Nothing showed that the Crown Court had adopted the rejected restrictive construction. R v Halloran illustrated the importance of necessity, and R v Rampley demonstrated that materially similar facts may properly lead to a different result after case-specific assessment.

• High Court (Administrative Court): the application for judicial review was refused and the Crown Court’s decision was left undisturbed.
• Croydon Crown Court: on appeal from the magistrates’ court, allowed the interested party’s appeal and declined to uphold the sexual offences prevention order.
• Magistrates’ court: convicted the interested party of sexual assault and made a community rehabilitation order; a sexual offences prevention order was subsequently sought as a free-standing application.