ANDERSON PINHEIRO (R on the application of) v NORTH TYNESIDE MAGISTRATES COURT & Anor

Judicial review of an interim sexual risk order is supervisory. It is not a rehearing or an opportunity to re-evaluate the evidence. For an interim order, the court may adopt a broad approach to whether it is just to impose the order and may examine the substantive criteria for a sexual risk order on a prima facie basis. Evidence of conduct must be assessed as a whole. Recruiting vulnerable young women for gatherings involving sexual exploitation or a risk of sexual assault may constitute an act of a sexual nature and justify protective restrictions. Evidence of apparent breaches may be relevant to necessity and proportionality when an order is reconsidered. Judicial review may be refused where an adequate statutory variation procedure is available, particularly where alleged private-life interference depends on evidence not placed before the original court.

The claimant challenged interim sexual risk orders made by North Tyneside Magistrates Court and subsequently varied by the Crown Court at Newcastle. The orders arose from police applications under the Sexual Offences Act 2003. The Crown Court reheard the claimant’s appeal, dismissed it and imposed a replacement order. Further orders were later made on substantially the same terms.

The claimant sought permission for judicial review, alleging errors concerning an act of a sexual nature, necessity to protect the public from harm, whether it was just to impose an interim order, the scope and proportionality of the restrictions, and the effect on his asserted relationship with a 16-year-old girl under Article 8 ECHR.

1. Permission refused. The claim had no realistic prospect of success. Judicial review was a restricted supervisory jurisdiction. It was not a rehearing of the evidence or a substitutionary appeal.
2. The original magistrates’ order was subject to a clear discretionary bar because the claimant had not opposed it and had pursued the statutory appeal to the Crown Court. The substantive focus was therefore the Crown Court’s rehearing and replacement order.
3. Because the orders were interim orders under section 122E, the Crown Court was entitled to approach the question whether it was “just” to impose an order broadly and on a prima facie basis. It was also entitled to address the substantive criteria under section 122A.
4. The Crown Court’s findings were supported by the evidence viewed as a whole. Recruiting vulnerable young women for gatherings where they might be sexually exploited or sexually assaulted could constitute an act of a sexual nature and give rise to harm from which the public required protection. The Home Office Guidance was non-exhaustive and non-prescriptive, and had not been misapplied.
5. Evidence of apparent breaches of the first interim order was not treated as the original justification for that order. It was relevant, alongside the claimant’s continuing conduct and other circumstances, to necessity, proportionality and the need for protective restrictions at the rehearing.
6. The asserted boyfriend-girlfriend relationship was unsupported by concrete evidence before the magistrates, Crown Court or Administrative Court. Arguments based on unreasonableness, proportionality and Article 8 therefore lacked an evidential foundation. In any event, section 122B(5) provided an adequate alternative remedy: an application to the court that made the order for variation. Such an application could be considered on appropriate evidence.
7. The application for permission for judicial review was refused. No costs order or further directions were required. An anonymity order was made protecting the identities of Z, Y and S.

The judgment concerned an application for permission for judicial review, not a substantive appeal.

• Crown Court at Newcastle: on 29 October 2021, reheard the claimant’s appeal against the magistrates’ interim sexual risk order, dismissed the appeal and imposed a varied replacement order.
• High Court (Administrative Court): refused permission for judicial review because the proposed claim had no realistic prospect of success and, in relation to the asserted relationship with Y, an adequate statutory variation remedy was available.