We must wait until 22nd September to discover exactly what District Judge Adrian Lower has in mind for John O’Neill, the York man who, despite having been acquitted of a charge of rape, is now not allowed to have sex unless he gives the police at least 24 hours notice of his intention.
Mr O’Neill has been subject to a peculiar and, as far as I know, unique interim “Sexual Risk Order” since January. At a hearing yesterday the judge announced that he would be making a final order, although in the same breath he also strongly implied that he would amend its terms, describing the notice provisions as “wholly disproportionate” and “frankly unpoliceable.”
Until some of the allegations against Mr O’Neill started to emerge I had simply assumed that the Sexual Risk Order was both absurd, and an outrageous attack on his human rights. I sympathised with the view expressed by Brendan O’Neill who thundered in January:
“… there’s little funny about this case. In fact it speaks to the creeping warping of the values of both justice and liberty. It smashes together the sex-policing instinct of Big Brother in 1984 with the idea of ‘precrime’ from Philip K Dick’s Minority Report, making real the dystopian dread of a society that believes it can interfere in people’s most intimate relationships and treat individuals as criminals-in-the-making….
“The Yorkshire case, and Sexual Risk Orders more broadly, demolishes the ideal of due process. If someone can be treated as a criminal, or precriminal, despite not having been convicted of a crime, then the entire, Magna Carta-derived basis of civilised law is called into question.”
Having read some of the reports – Kate Liptrot’s in the Malton Gazette and Herald and the York Press have been particularly good – I’ve changed my mind. Perhaps not for the first time, Brendan O’Neill (he probably is a relation, though no doubt a very distant one) has delivered his characteristically trenchant opinion on the basis of very little knowledge of the facts of the case and even less of the law.
The starting point is that Mr O’Neill (John, that is, not Brendan) was acquitted of rape. We don’t know the details of that allegation, but we do know that at the end of it Judge Simon Bourne-Arton QC said: “Please could you inform the authorities that although this man has been acquitted, it is my judgment that he is a very dangerous individual.” The judge’s words seem to have encouraged the North Yorkshire Police to apply for the Sexual Risk Order, although perhaps they would have done so anyway.
The evidence which has now emerged in court in support of the application is unquestionably disturbing. Mr O’Neill had a consultation with a community psychiatric nurse, Kevin Holmes. Mr Holmes (who had also given evidence at the rape trial) noted that Mr O’Neill said he had feelings of rage and violence. He had had sex with women without being sure that they had consented, and in 2010 he stopped bothering to ask them. The nurse said Mr O’Neill told him “I need them to be scared or I don’t respond.” He also noted that he has “homicidal thoughts” and his sexual tastes include “biting, choking, cutting and burning.” His GP had made similarly worrying notes when he came to consult her about a cold. “Patient thinks he is dangerous and needs to be stopped,” she wrote. She noted that he had had thought about killing his partner a lot and “choked her unconscious several times.” The doctor told the court that she was concerned for her own safety. Mr O’Neill’s answer to this is that the notes are “thematically correct” but also “largely inaccurate” and the “specifics have got lost.”
The District Judge who heard the evidence last Friday was unimpressed:
“I have found him to be a manipulative and grandstanding individual… There is a narcissistic strain to Mr O’Neill which does trouble me as to his future behaviour with others and what he may say and do to them.”
Despite Brendan O’Neill’s harrumphing, I don’t think Magna Carta has a great deal to say about what we should do in these circumstances. Here is a man revealing that he is liable to rape and choke a sexual partner to death. He can’t be imprisoned because he has not committed any crime, but if he is at liberty there is real and identifiable risk that he may choke a woman to death for the sexual thrill. It is a situation which demands careful reflection rather than swashbuckling polemic. Most women would be grateful for being made aware of this risk before accepting an invitation back to the Fulford tent where he is presently living.
Brendan O’Neill’s indignant assertion that “if someone can be treated as a criminal, or precriminal, despite not having been convicted of a crime, then the entire, Magna Carta-derived basis of civilised law is called into question,” is nonsense, even without the Magna Carta reference. There is certainly a danger, and quite a serious one, with civil orders of this sort being used to criminalise otherwise non-criminal behaviour. ASBOs, or their modern equivalents “Criminal Behaviour Orders” can be used oppressively to criminalise behaviour which is merely irritating or even – as in the case of the Naked Rambler – harmless. But a civilised system of law also has to have some means of protecting the rights of potential victims before they become actual victims. Injunctions – far more than Magna Carta – have long been used to protect potential victims from the threat of harm. Many a wronged wife (and not a few husbands too) have owed their peace of mind to Restraining Orders imposed on unconvicted ex-partners who threaten to harass them. There is nothing intrinsically uncivilised or oppressive about a law that tries to control the danger from a potentially dangerous, if unconvicted man.
To return to Mr O’Neill’s case: one possibility might have been compulsory “sectioning” under the Mental Health Act 1983 (which would incidentally have restricted his liberty a great deal more than a Sexual Risk Order). A person can be sectioned for the protection of others, but only if the strict and complex provisions of the Act are met: he would have to be suffering from a mental disorder, it would have to be appropriate for him to receive treatment in a mental hospital, and there would have to be appropriate treatment actually available. I would guess that this option has been explored and rejected; if it has not been then it probably should be.
But assuming he can’t be sectioned, what does the law say about Sexual Risk Orders?
SROs are a product of the Anti Social Crime and Policing Act 2014, which amended the Sexual Offences Act 2003 The procedure is that an applicant (normally the Chief Police Officer for the relevant area) applies to a Magistrates Court. The Court:
“… may make a sexual risk order if it is satisfied that the defendant has, whether before or after the commencement of this [Part of the Act], done an act of a sexual nature as a result of which it is necessary to make such an order for the purpose of—
(a) protecting the public or any particular members of the public from harm from the defendant, or
(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.”
There are quite a few points to note here.
First, there is no need for the defendant to have committed a criminal offence. All that is necessary is that he should have “done an act of a sexual nature” which makes such an order “necessary.” A defendant who has been convicted of a sexual offence is more likely to be made the subject of a “Sexual Harm Prevention Order,” discussion of which will have to wait for another day.
Secondly, it does not matter when the “act of a sexual nature” occurred; it makes no difference if it occurred yesterday or 20 years ago before the Anti Social Crime and Policing Act, or even the Sexual Offences Act 2003 were passed. Sharp-witted readers may already have asked themselves whether this breaches the principle that criminal legislation should not be retrospective, and in particular Article 7 of the European Convention on Human Rights:
No punishment without law
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
The answer is that it does not, because imposing a Sexual Risk Order does not involve the defendant being held “guilty of a criminal offence.” It is a “civil” not a “criminal” order, even though the consequences of breaching it are criminal, including a maximum sentence of 5 years imprisonment.
Thirdly, the order may only be made if it is “necessary” for protecting any member of the public within the UK, or “children or vulnerable adults” outside the UK from harm. In Mr O’Neill’s case the order has been made to protect adult women in the UK.
The SRO’s predecessor under 2003 Act was called a “Risk of Sexual Harm Order” (“RSHO”). It had many similarities, including the fact that its imposition did not require a conviction, but crucially so far as Mr O’Neill’s case is concerned, it required proof of some form of sexual activity with children and could only be imposed to protect children. In other words, Mr O’Neill could not have been made the subject of a “RSHO”. The Act was amended largely because of the Report of a Committee of wise men and women, under the Chairmanship of Hugh Davies QC, who recommended that the regime should be tightened insofar as it related to the protection of children, although it specifically did “not advocate reform so far as adult victims are concerned” (although this was perhaps because the focus of the Committee was almost entirely on the protection of children).
Fourthly, although the Act does not expressly say so, the applicant for a SRO almost certainly does not need to prove “beyond reasonable doubt” that such an order is necessary.1 In other words, it is in some ways easier to obtain a Sexual Risk Order than it is to obtain a criminal conviction, although the higher courts have repeatedly urged that great care should be taken before imposing orders of this type.
Fifthly, although it may be obvious, the precise terms of a SRO are for the Court to decide. Judge Lower has said that the terms of the interim order – I assume that he was referring to the 24 hour notice of sexual intent – is both “unpoliceable” and “disproportionate.” I’m not so sure about “disproportionate,” but it does seem somewhat unrealistic to think that if Mr O’Neill had choking, burning or homicide in mind, he would be dissuaded by the fact that this might also breach his SRO.
We must wait and see what order Judge Lower comes up with. He has reserved his judgment and obviously recognises that the decision is far from straightforward. It seems very likely that whatever order he imposes will be appealed, certainly to the Crown Court and very probably to the Administrative Court which will be able to give full consideration to the very difficult issues that it raises. I don’t know what the right answer is but I think Judge Lower is probably thinking along the right lines and Brendan O’Neill is wrong.
One other footnote to the case: Mr O’Neill was legally unrepresented at the hearing of this application. It may be that that was his choice. If, however, he was refused legal aid that was a disgraceful decision. If ever there was a case which demanded skilful and knowledgeable legal representation on both sides, this was it.