Smith, R (on the application of) v Derbyshire County Council

A Sexual Offences Prevention Order authorises only the prohibitions expressly contained in it. Restrictions on a person’s liberty cannot be imposed by implication from the order’s purpose, surrounding arrangements or an understanding said to have existed when the order was made. Any restriction must be clearly justified by law and stated in the order. A local authority therefore cannot use a SOPO as authority for requiring a person to remain at home or to travel only when accompanied where those requirements are absent from the order.

The claimant, a man with mild learning disabilities subject to a Sexual Offences Prevention Order, challenged the Council’s refusal to allow him to travel unaccompanied from his residence to visit his ill mother. The Council maintained that constant supervision and accompanied travel were authorised by, or implicit in, the SOPO. The order contained prohibitions concerning contact with children, swimming pools, schools and playgrounds, residence, and contact which was inadvertent and unavoidable in lawful daily activities. The central issue was whether the order authorised the additional supervision restrictions.

1. Permission and claim. Permission to apply for judicial review was granted. The Council’s decision of 11 July 2008 was quashed.
2. Ambit of the order. Under section 107 of the Sexual Offences Act 2003, a SOPO prohibits the defendant from doing the things described in the order, and may include only prohibitions necessary to protect the public from serious sexual harm. The order must therefore be taken at face value.
3. Express restrictions required. Where liberty is affected, restrictions cannot be imposed by implication from the circumstances in which the order was made, from supervision arrangements, or from an alleged understanding that the person would be accompanied. Unless the order contains the explicit restriction relied on, it cannot be imposed. Restrictions on liberty must be clearly justified by law.
4. The claimant’s risk and the appropriateness of the existing SOPO were not in issue. The dispute concerned only whether the Council could extend the order’s operation by requiring constant supervision or accompanied travel. The order did not authorise those requirements.
5. Consent. The evidence about whether the claimant had consented to the supervision arrangements was ambiguous. That issue, and any remedies arising from absence of consent, was to be determined in a separate hearing before the County Court in Derbyshire.
6. The order was suspended for a fortnight to allow the parties to consider whether agreement could be reached. The claimant was awarded his costs, subject to detailed assessment for public funding purposes.