CHIEF CONSTABLE OF KENT POLICE v PHILIP CARTER

For a sexual risk order, the applicant must prove to the criminal standard that the respondent has done an act of a sexual nature. It is unnecessary to prove that the act amounted to a criminal offence. Once that condition is established, the necessity of making an order, and the necessity and scope of its prohibitions, are evaluated on the balance of probabilities. A magistrates’ court must give reasons sufficient to permit rational analysis of its decision. Where it has failed to determine necessity, the appellate court should remit that issue to a fresh bench rather than decide it at first instance.

The Chief Constable applied to the Medway Magistrates’ Court under section 122A of the Sexual Offences Act 2003 for a sexual risk order against Philip Carter. The application relied on evidence of repeated sexualised conduct involving vulnerable young men, together with other circumstantial and hearsay evidence.

The magistrates declined to make an order, stating only that they could not be sure that a sexual act had been carried out. The Chief Constable appealed by way of case stated. The central issues were whether the magistrates had required proof of a criminal offence, whether their assessment of the evidence was legally reasonable, and what should follow if the application succeeded on the act-of-a-sexual-nature issue but necessity had not been considered.

1. Appeal allowed in part and application remitted. The magistrates’ decision could not stand. The court answered the three questions stated: yes, no and yes.
2. Proceedings under section 122A of the Sexual Offences Act 2003 are civil proceedings. However, the applicant must prove to the criminal standard that the respondent has done an act of a sexual nature. The statutory condition does not require proof of a criminal offence. Otherwise, the protective jurisdiction would largely be redundant because criminal conviction would ordinarily lead to other protective powers.
3. The question whether an order is necessary is evaluative and is determined on the balance of probabilities. The same applies to deciding whether the proposed terms and prohibitions are necessary to protect the public or particular children or vulnerable adults. Hearsay evidence is admissible under the Civil Evidence Act 1995; although its weight may be limited, its cumulative effect may be cogent.
4. The magistrates had erred by conflating an act of a sexual nature with a sexual offence. Their bare conclusion gave no rational explanation for rejecting the evidence. The evidence included Carter’s admission to a previous caution, similar accounts from six individuals, his attempts to regain contact with a vulnerable man using a false name, and inadequate explanations for material recovered from his home and computer. The court held that the only possible view was that Carter had committed more than one act of a sexual nature.
5. The magistrates had not considered necessity or the terms of any order. Those matters were remitted to the Magistrates’ Court for determination by a fresh bench on the evidence rehearsed in the judgment.

• Medway Magistrates’ Court: refused to make a sexual risk order on 6 July 2021, giving only the conclusion that it could not be sure that a sexual act had been carried out.
• High Court (Administrative Court): on an appeal by way of case stated, held that the magistrates had erred in law and remitted the application to a fresh bench to determine necessity and the necessary terms of any order.