Richards, R (on the application of) v Teesside Magistrates Court & Anor

Sections 107 and 108 of the Sexual Offences Act 2003 confer sufficiently broad powers to impose SOPO prohibitions requiring compliance with location-monitoring arrangements. A restriction may remain substantially prohibitory even though compliance requires the subject to wear, maintain or present a tag. Ancillary requirements supporting the principal prohibition may also be included. The statutory requirements of necessity and clarity, including proportionality, protect against arbitrary or excessive orders. Article 8 requires a lawful, accessible and sufficiently foreseeable legal framework, but it does not require every detail of a power to be expressly set out in the statute.

The claimant sought judicial review of the variation by Teesside Magistrates Court of a sexual offences prevention order made under the Sexual Offences Act 2003. The variation prohibited him from leaving his registered address without wearing a functioning location-monitoring device and required him not to tamper with it or refuse its inspection.

He argued that the statutory scheme did not authorise tagging, that the provisions imposed positive requirements rather than prohibitions, and that the interference with his Article 8 rights was not in accordance with the law. The central issues were whether the order was within the statutory power and whether its legal basis satisfied Article 8.

1. Statutory power. The application was dismissed. Sections 107 and 108 of the Sexual Offences Act 2003 confer power to impose prohibitions necessary to protect the public from serious sexual harm. The absence of an express reference to tagging does not prevent restrictions of that kind.
2. Prohibitory character. The challenged provisions were substantially, not merely formally, prohibitory. They prevented the claimant from leaving his residence without a functioning tag and prohibited tampering or refusal of inspection. The fact that compliance required him to wear, charge or present equipment did not alter the essential negative nature of the restrictions.
3. The provisions had to be read in their statutory context. Requirements concerning inspection and equipment were ancillary to the principal restriction and could render it operative. The court did not need to decide whether all three provisions were also ancillary to the separate prohibition on communicating with women involved in prostitution.
4. Necessity and clarity. SOPOs permit flexible drafting, but every prohibition must be necessary and clear. Necessity includes proportionality. No challenge was advanced on workability, clarity, necessity or proportionality on the facts; the issue was confined to statutory power and legal authority.
5. Article 8. The order was in accordance with the law. The statutory framework and the individual order supplied accessible and sufficiently foreseeable rules, and the necessity requirement guarded against arbitrary exercise of power. Article 8 did not require every detail of a permissible SOPO restriction to be expressly specified in the Act. The judicial review application was dismissed.

The claimant challenged the order of Teesside Magistrates Court dated 15 October 2012, which varied an earlier SOPO. The Divisional Court dismissed the judicial review application.