Copyright 2004 Lincolnshire Echo
Lincolnshire Echo

December 16, 2004

SECTION: News; Courts; Others; Pg. 6

LENGTH: 1318 words

HEADLINE: Do these new legal orders meant to save our children from harm infringe human rights?

BODY:
James Eastwood has not been charged with a criminal offence. No admissible evidence has been brought against him and no jury has tried him. Yet civil proceedings brought against him for an alleged sexual offence now severely restrict his life.

While he awaits a magistrates' decision on the punishment he faces, he is unable to live with or have any contact with children aged under 16.

And if the courts decide, this restrictive order could be made permanent.

Police insist that they only bring such orders to protect children from potential harm.

But what about 'innocent until proven guilty' and the right to trial by jury? Are we really ready to compromise such fundamental pillars of our justice system? On May 1 this year the Sexual Offences Act 2003 came into force. It is intended to protect children from sexual harm.

The reason for tightening up sex laws was simple. In the face of a 17 per cent rise in nationwide sex crime - 48,654 offences were committed between March 2002 and March 2003 - the Government's aim was to encourage greater confidence in the criminal justice system.

It introduced tough new penalties for sex crimes plus new offences to protect children.

It also made it easier for juries to make fair and balanced decisions on the question of consent.

Sections of the act also allowed police to apply for an order against someone suspected of sex crimes against children.

One such order, called a risk of sexual harm order, can prohibit a defendant from coming into contact with any child under a specified age.

But there are no limitations on its brief.

The order, which remains effective for a minimum of two years, can be obtained by the police against a defendant with no criminal convictions if it can be proved to magistrates presiding over civil hearings that the defendant is guilty of two or more sexual offences.

And this is what Eastwood faces.

Because civil law is different to criminal law, the police must only prove to the presiding magistrates that the defendant is guilty "on the balance of probabilities".

If the defendant was facing a sex charge at a crown court, prosecutors would have to prove guilt to a jury "beyond all reasonable doubt".

And here, it seems, is the crux of the matter.

For those keen to uphold human rights, such a system is unpalatable.

Dr Sean Gabb, director of communications for the London-based Libertarian Alliance, said he was appalled at the legal change.

"It's conviction without criminal trial - it's using the civil law to achieve a criminal punishment. We are against that," he said.

"It's against Article 39 of the Magna Carta which says no-one shall be punished except by due process of law.

"I do not think the civil process is a due process of law.

"It gives the Government a great deal more power and it's cheaper to enforce and that's what politicians want." His concerns over how guilt in such cases is decided are echoed by Lincoln-based assistant solicitor Justin Atkinson.

"When these orders are made they are made in respect of very grave allegations which, if they were subjected to criminal charge, would always be heard in a crown court," said Mr Atkinson, of McKinnells Solicitors.

"You have a situation whereby magistrates are dealing with these allegations in civil proceedings.

"They only have to decide on the balance of probabilities whether certain things have taken place - which is a very low hurdle for the police to get over." Mr Atkinson said no legal aid was currently available for those being given risk of sexual harm orders.

Instead, defendants have to wait up to six weeks for a decision to be made on their case - first by the Legal Services Commission and then the Government's own Department for Constitutional Affairs.

"People are going to be unrepresented at court and having to face these grave allegations and orders without being representation," said Mr Atkinson.

"It boils down to the fact that the Government has drafted various bits of legislation to deal with issues it thinks should be dealt with.

"But it is not actually following through and thinking how it's going to work in practice for the courts." But for Detective Sergeant Emma Calcutt, of Lincolnshire Police's Child Protection Unit, the introduction of risk of sexual harm orders is to be welcomed.

"It has given us the opportunity to take out orders against people we have dealt with or have concerns about," she said.

DS Calcutt said that the decision to apply for such an order was made by the Multi-Agency Public Protection Panel which includes police, probation, social services and education officers.

Martin Kirby-Sykes, head of the trials unit at Lincolnshire's Crown Prosecution Service, said the CPS could advise the police to pursue an order if there wasn't enough evidence to secure a conviction in a criminal court.

"We would only be involved in risk of sexual harm orders if one had been obtained by the police and the person concerned was prosecuted for a breach of that order," he said.

If the terms of an order or an interim order are breached there is a maximum penalty of a five-year prison sentence.

Although the orders are already being issued, no Home Office figures will be published until Autumn 2005.

But Richard Stone (53), professor of law at the University of Lincoln, says the terms of the orders can be too wide.

"It is a sweeping order. What the order can cover is not really controlled by the Act - it can prohibit the defendant from doing anything described in the order," he said.

"As a result of that we are having fairly severe restrictions placed on what you can do and where you can go.

"You would challenge an order of this kind if it was infringing on your private life, under Article Eight of the European Convention on Human Rights which all courts have to take account of because of the Human Rights Act 1998." He said there were certain circumstances in which Article 8 could be overruled.

"There are various grounds where it could be argued that the breach of right for respect for a private life is justifiable in these sorts of circumstances," he said.

But he warned that restrictions on freedom must not go too far.

"Although you are allowed to restrict someone's rights, the European court has made clear that restrictions must go no further than absolutely necessary," he said.

"It must be proportionate to the objective that you are trying to achieve.

"I think that where it is open to criticism is in relation to the breadth of the order that is made." Identity ban headed off Echo reporter Pat Nurse successfully headed off an attempt to ban the identification of James Eastwood at magistrates' court this week.

During proceedings in open court, lawyers acting for Lincolnshire Police advised magistrates that they could make an order to the press ordering that the respondent is not named in the press.

Solicitor Sarah Simcock told the court that a Section 11 order under the Contempt of Court Act allowed magistrates to ban the naming of Mr Eastwood. But Ms Nurse then correctly informed the court that Section 11 orders cannot be made to protect the identity of respondents and cited case law. Section 11 orders are intended to protect the names of blackmail victims or people involved in national security and secret processes.

There has been criticism from the courts that they have, in some cases, been incorrectly used to ban identification without good cause.

Like anti-social behaviour orders, civil orders made under the Sexual Offences Act 2003 must be heard in open court, with the press and public present.


Does this new law impinge on human rights? Write to Your View at the Lincolnshire Echo, Brayford Wharf East, Lincoln, LN5 7AT. Or e-mail yourview@lincolnshireecho.co.uk .


LOAD-DATE: December 17, 2004


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