Richards, R (On the Application Of) v Teesside Magistrates' Court & Anor (Rev 1)

A Sexual Offences Prevention Order may require its subject to wear a location-monitoring tag when away from his residence, although the legislation does not expressly mention electronic monitoring. The court must examine the substance and context of the provision. An apparently mandatory requirement may be prohibitory in substance, including where it operates as a condition or exception to a restriction. The power remains controlled by necessity, clarity and proportionality. For Article 8 purposes, judicial interpretation, judicial review, and relevant statutory codes and guidance may provide sufficient safeguards for foreseeability and the retention and use of monitoring data.

A magistrates’ court made a Sexual Offences Prevention Order against the appellant, a qualifying sexual offender, and later varied it to require him to wear a charged location-monitoring device whenever he left his registered address or overnight accommodation. The variation also prohibited tampering with the device and required it to be made available for inspection.

The Divisional Court dismissed the appellant’s judicial review claim: [2013] EWHC 2208 (QB). The appellant appealed, arguing that the Sexual Offences Act 2003 did not authorise tagging, that a Sexual Offences Prevention Order could impose only negative prohibitions, and that the interference with Article 8 was not in accordance with the law because of insufficient statutory detail and safeguards for monitoring data. The central issues were whether the tagging provisions were authorised and substantively prohibitory, and whether the statutory and guidance framework satisfied Article 8 legality requirements.

Appeal dismissed. Lord Justice Beatson gave the judgment, with the Master of the Rolls and Lord Justice Fulford agreeing. The magistrates’ court was empowered to impose the additional provisions.

1. Sections 107(1) and 107(2), together with section 108(5), of the Sexual Offences Act 2003 confer a broad power to impose or add prohibitions necessary to protect the public from serious sexual harm. Parliament did not confine the court to an exhaustive list of permitted prohibitions.

2. The principle that fundamental rights are not overridden by general or ambiguous words did not prevent the order. Parliament had authorised, by necessary implication, restrictions capable of affecting movement, association, expression, and private and family life. The order nevertheless had to satisfy necessity, clarity and proportionality.

3. The legal character of a provision depends on its substance and context rather than its formal wording. A requirement to wear a tag while away from home restricted the manner in which the appellant could act in public and was therefore prohibitory in substance. The provisions concerning tampering and inspection were ancillary. The reasoning in Lonergan ([2005] EWHC 457 (Admin)), Thompson ([2009] EWCA Crim 3258) and Smith and others ([2011] EWCA Crim 1772) supported that conclusion.

4. The Article 8 interference was in accordance with the law. Judicial control through the adversarial making and variation of the order, statutory limits to the purpose for which the power could be exercised, and judicial review provided safeguards against arbitrariness. Complete statutory precision was unnecessary where judicial interpretation could reasonably clarify open-textured language.

5. The challenge concerning retention and use of monitoring data also failed. The Code of Practice on the Management of Police Information and the Guidance on the Management of Police Information supplied controls governing the review, retention, deletion, sharing and use of police information, subject to the Data Protection Act 1998 and Human Rights Act 1998. The appeal was dismissed.

• Court of Appeal (Civil Division) — Appeal dismissed. The court upheld the Divisional Court’s dismissal of the judicial review claim: [2013] EWHC 2208 (QB).
• High Court, Queen’s Bench Division, Administrative Court — Divisional Court dismissed the claim challenging the variation of the Sexual Offences Prevention Order: [2013] EWHC 2208 (QB).
• Teesside Magistrates’ Court — Made the order and later varied it to impose the tagging, anti-tampering and inspection provisions.