Commissioner of Police of the Metropolis v Ebanks

In civil proceedings for a risk of sexual harm order, the criminal standard of proof applies to the allegation that the defendant committed the qualifying acts. The ordinary civil starting point is the balance of probabilities, but the criminal standard is appropriate where the proceedings are civil in form yet involve serious allegations and potentially grave consequences. The assessment of whether an order is necessary is evaluative. The preventative purpose of the order does not justify a lower standard, and safeguards concerning duration, variation or discharge do not remove the seriousness of the restrictions or the criminal consequences of breach.

The Commissioner appealed by way of case stated from a decision of District Judge Henderson at Highbury Corner Magistrates’ Court on 15 November 2011. The District Judge held that, in an application under section 123 of the Sexual Offences Act 2003, the conduct required by section 123(4)(a) had to be proved to the criminal standard.

The Divisional Court considered whether that ruling was wrong in law, or whether the acts instead had to be proved on the balance of probabilities. The issue concerned the preventative purpose of risk of sexual harm orders, their potentially serious restrictions, and the criminal penalties for breach.

1. Appeal dismissed. The answers to both questions stated for the opinion of the court were no. The District Judge had made no error of law.
2. Proceedings for a risk of sexual harm order are civil in nature. The ordinary starting point is the balance of probabilities. However, civil proceedings may attract the criminal standard where their nature involves serious allegations and potentially serious adverse consequences.
3. The qualifying conduct under section 123(3), required by section 123(4)(a) of the Sexual Offences Act 2003, must be proved beyond reasonable doubt. The order is preventative and does not require a prior conviction. Its purpose is early intervention where adult conduct creates a risk of harm to children, and the conduct need not itself amount to a completed criminal offence.
4. The consequences justified applying the criminal standard. A finding of qualifying conduct may lead to prohibitions and restrictions, and breach is a criminal offence carrying up to five years’ imprisonment and notification consequences under Part 2 of the Act. Applying the criminal standard does not make the order redundant, because the statutory conduct may precede or fall short of conduct constituting an offence.
5. The necessity requirement under section 123(4)(b) is not subject to a criminal or other standard of proof. It involves judicial judgment or evaluation. The threshold for necessity is materially lower than the corresponding threshold for a sexual offences prevention order.
6. The court rejected the argument that a lower standard was required to secure effective child protection or comply with human-rights obligations. Statutory safeguards concerning necessity, duration, variation and discharge do not remove the seriousness of the restrictions and breach consequences.

Lord Justice Aikens agreed with Mr Justice Globe and added that the absence of a prior conviction, the seriousness of the qualifying acts, and the consequences of an order and its breach reinforced the conclusion.

• Highbury Corner Magistrates’ Court: On 15 November 2011, District Judge Henderson held that conduct required for a risk of sexual harm order under section 123(4)(a) of the Sexual Offences Act 2003 had to be proved to the criminal standard.
• High Court (Administrative Court): The Divisional Court dismissed the appeal by way of case stated and answered both questions in the negative.