On the point of conditional discharge my client has been served with a SHPO application. It is very poorly drafted and shows no evidence of current risk. My client is apparently ineligble for Legal Aid as this is a stand alone SHPO so I contemplating representing him ‘pro bono’ in the magistrate’s court to prevent him having to deal with it unrepresented . Does anyone know anything about the process as I am way out of my depth!
First question would be:
Is the application being made under section 103A (2) SOA 2003 or under s. 103A (3) and (4).
Is the representation to be
that correct procedures have not been followed
or
that no justification for the order has been shown
or
that the restrictions are not proportionate
It is under 103A and 103F
I wouldn’t know if correct procedures have been followed. They certainly were not initially as they forgot to serve him and told me the hearing was the next day! He has now been served personally as I refused to accept service.
Certainly no justification has been shown and also the restrictions are not proportionate.
So-having looked at SOA 2003 I see that this is an application by the chief of police to the Magistrates under 103A (4) The ‘appropriate date’ was twenty years ago and since then there have been further incidents but not for the last ten years or so. For the last four years my client has had eight hours of unescorted leave per day with no incidents and now they want him to wear a Buddi Tag when he is conditionally discharged.
S103(4)(b) requires that
… the person has since the appropriate date acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made.
Is that sustainable. From your comments it would appear not. Is there any justification for such reasonable cause given in the served notice.
You would also have to look at s103b SS2 and 3.
Would your clients be prepared to accept an SHPO for say 6 months and then apply for a variation under 103e
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I have to prepare for a conference call now but I have some other thoughts that I will write possibly tomorrow.
Thank you very much Anthony-that is most helpful. I do not believe that there is any reasonable cause and the application is based on confused hearsay evidence which is very weak.
I am wondering if I should declare myself to be a ‘McKenzie friend’ or just go on the record as acting ‘pro bono’.
I understand that I should file a skeleton argument contesting the grounds before the interim hearing.
I have a report from the patient’s social worker filed in tribunal proceedings which states that the clinical team disagree with MAPPA on the level of risk and do not believe that a Buddi Tag is necessary.
Can I produce this report in the Magistrates court?
My opinion is you should declare yourself a McKenzie friend. My rationale for this is that it gives the magistrate an opportunity to see your client present its case. You will have prepared the skeleton arguments for the client to present.
I suspect the magistrates will lean towards the granting of the order - “abundance of caution” etc., in spite of the evidence that you can produce. I don’t see why you could not produce the report from the clinical team, but I am not sure how persuasive it would be.
You can ask for a variation, cessation order after some months. I might wait about 6 but that a judgement for the client to make under advisement, when you would have more evidence of no inappropriate behaviour that might be persuasive to the magistrates, should the order be imposed at the first hearing.
I hope you prevail.
Probably a bit late to give my two cents (Karen, I hope that this has already been dealt with and the application was refused). Having spent a lot of time recently in the magistrates courts, I have no doubt that they will be risk-averse and will need some persuading. For that reason, my gut feeling would be to go on record as pro bono so that you can more forcefully represent him.
worth noting that the decision to grant it is appealable to the Crown Court (no permission needed in first 21 days)
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Thanks Charlie-thankfully it has emerged that he is eligible for Legal Aid and a highly experienced criminal solicitor is now on the case-so fingers crossed.
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