Helpful court guidance for police forces on when and how to apply for SROs
Pinheiro applied for judicial review, to challenge the imposition of an ISRO.
Pinheiro v North Tyneside Magistrates’ Court and Crown Court at Newcastle
It is unusual to see the higher courts called upon to challenge interim sexual risk orders (ISROs), or full sexual risk orders (SROs) for that matter. This case is helpful to provide guidance to police forces on when and how to apply for an SRO and ISRO, in particular:
- Applications can be made whilst related criminal proceedings remain ongoing. There was no criticism levelled at the police for pursuing further ISROs pending conclusion of the related criminal proceedings.
- The court placed the Home Office guidance front and centre in its determination. The Home Office guidance is a really useful tool that police forces should have regard to when considering whether to pursue an application for an SRO.
- The court — rightly — takes any interference with a Convention Right seriously. However, it expects that any party that claims their Convention Rights have been breached will support their claim with evidence.
On an application by the Chief Constable of Northumbria, P was made subject to an ISRO pending the determination of an application for a substantive SRO.
P did not oppose the first ISRO (‘ISRO 1’), which broadly prohibited P from contacting girls under 18 including someone he described as his ‘girlfriend’, expiring on 7 December 2021. P subsequently breached ISRO 1 and was prosecuted.
Facing a prosecution, P appealed the imposition of ISRO 1 to the Crown Court. By way of a re-hearing, the Crown Court dismissed the appeal but amended some of the prohibitions in ISRO 1 (which became ISRO 1A), which would expire on 7 December 2021.
At the time the Crown Court determined the appeal, P was due to face trial for breaches of ISRO 1. That trial was subsequently vacated.
On 7 December 2021, P’s ISRO 1A was effectively extended by the Magistrates’ Court (which became ISRO 2) to expire on 7 April 2022.
New dates were set for the prosecution for breach of ISRO 1 and repeatedly vacated and, on 7 April 2022, the Magistrates’ Court made a further ISRO in the same terms as ISRO 2.
P sought permission to issue a judicial review application on the following grounds:
- The Crown Court had failed to properly consider the meaning of:
- “act of a sexual nature”
- “necessary to protect the public from harm”
- It was unreasonable for the ISRO to include a prohibition on contact with young women over 16.
- It was unreasonable for the ISRO to include a prohibition on contact with a young woman who P described as his girlfriend.
- The ISRO breached P’s Article 8 Convention Rights by banning him from contacting his girlfriend.
P also submitted that if the application was determined in their favour, and the imposition of the ISRO was unjustified, then it should result in the CPS reconsidering whether it was in the public interest to continue to prosecute the breach and/or, if the breach were successfully prosecuted, it would inform any sentencing exercise.
The High Court dismissed the application for permission. In response to the grounds raised, the court held that two topics were raised:
- the general picture; and,
- the effect of ISROs on the relationship between boyfriend and girlfriend.
The general picture
The court found that the Crown Court’s approach was “unimpeachable”, having “clearly and carefully grappled” with the criteria for an ISRO. With regard to the test to be applied:
- The act of a sexual nature was the “recruiting of vulnerable young women so as to place them in a position of sexual exploitation and at risk of sexual assault in the context of their attending gatherings.” Similar behaviour is cited in the Home Office guidance as an example and the evidence was clearly sufficient to support the imposition of an ISRO.
- The protection from the risk of harm identified could make an ISRO necessary.
- The Crown Court was entitled to have regard to “all the circumstances” when considering whether an ISRO was necessary. This included evidence relating to P across different timelines and on different occasions, and evidence that the ISRO may have been breached.
- The Crown Court properly considered the statutory criteria for a full SRO when deciding whether the ISRO was just.
The effect of ISROs on the relationship between boyfriend and girlfriend
Before imposing any prohibition that curtails an individual’s Article 8 Rights, the court should critically assess all of the evidence available, more so when dealing with potentially vulnerable individuals. Matters of risk, vulnerability, protection and harm make it particularly important that such relationships are supported by evidence.
The Crown Court could make an order to protect ‘young women’ from harm, contrary to ground 2, because it was necessary to do so.
The claimant would not have gained a defence to the prosecution for breaching the ISRO. There is established case law that a court order “must be obeyed unless and until” it has been set aside or varied by a court.
The Magistrates’, Crown Court and Administrative Court were “given nothing of evidential substance” to support P’s claim that one of those he was prohibited from contacting was his girlfriend. In the opinion of the court, “that fatally undermines the viability” of pursuing judicial review.
P had not exhausted all alternative remedies. It was open to him to seek a variation of the ISRO, adducing evidence that the woman he was prohibited from contacting was his girlfriend.
For more information on any of the issues discussed, please contact our emergency services lawyers.