Terence Robert Maguire [2019] EWCA Crim 1193
Summary
Terence Robert Maguire [2019] EWCA Crim 1193 concerned an appeal against the terms of a criminal behaviour order made by His Honour Judge Kelson QC at Kingston upon Hull Crown Court.
Mr Maguire had pleaded guilty on 3 July 2018 to two offences of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, and one offence of controlling or coercive behaviour, contrary to section 76 of the Serious Crime Act 2015. On 19 July 2018 Mr Recorder Palmer sentenced Mr Maguire to a total of four years’ imprisonment, comprising consecutive sentences for each offence. There was no appeal against those sentences. The Recorder adjourned a prosecution application for a criminal behaviour order under section 22 of the Anti-social Behaviour, Crime and Policing Act 2014 so that further evidence could be served and submissions made.
The offences had been committed against a young student, Amy Partington, with whom Mr Maguire became involved in January 2012. By June 2012 the relationship had become volatile and Mr Maguire began to exhibit violence towards the complainant. In July 2012 he assaulted her, causing injuries requiring hospital attendance, forming the basis of count 1. In February 2014 he strangled and assaulted her in the kitchen, causing her to pass out; this was count 3. The final count reflected behaviour between 2014 and 2018 that amounted to an offence contrary to section 76 of the Serious Crime Act. Mr Maguire was 32 at sentence and had 21 convictions for 40 offences spanning 11 November 1998 to 24 July 2017, including offences of violence. Ms Partington did not wish the court to make a restraining order, so the prosecution applied for a criminal behaviour order.
The adjourned application was listed on 18 December 2018 before Judge Kelson. Mr Maguire effectively conceded that the making of some form of criminal behaviour order was justified in light of the evidence forming the basis of the charges and a history of domestic violence in his relationships with other women. Two issues were contentious: first, a proposed clause requiring Mr Maguire to inform the local police station of the name of any new partner within 14 days of commencing an intimate relationship; and secondly, the duration of any order. The defence conceded that a clause requiring him to inform police where he was living was necessary and proportionate.
Judge Kelson was presented with evidence concerning complaints from other women with whom Mr Maguire had been associated in the past, including allegations of violence and rape (albeit not pursued to conviction). The picture painted was of a serial abuser of women with whom he formed relationships. On 18 December the judge adjourned to allow the prosecution to further consider the proposed clause requiring notification of any new partner. The judge ruled that such a clause was necessary but required “some sort of precise, workable definition”.
When the case returned on 21 December 2018 the prosecution presented a revised draft. Counsel described the second clause as designed to put Mr Maguire under a duty to inform police if he was forming a relationship with a female. Mr Maguire’s counsel objected, submitting that the clause offended the principles in R v Boness & Ors [2006] 1 Cr App R (S) 120 on the basis it was too vague and difficult to enforce. Counsel also observed that previous instances of domestic abuse had tended to exhibit themselves once relationships became established rather than in early stages. Judge Kelson rejected the objections, commenting that in his view Mr Maguire was, in terms of relationships with females, “a danger to shipping”. He made a criminal behaviour order in the terms requested by the prosecution and ordered it to subsist for 15 years.
Mr Masson, who had not appeared below, developed the objections raised before Judge Kelson. He submitted that the “relationship” clause did not comply with the guidance in Boness, which stated at paragraph 20 that a court should ask itself whether the terms of an order are clear so that the offender will know precisely what is prohibited. A working party report referred to in Boness recommended that prohibitions should be capable of being easily understood by the defendant and enforceable, allowing a breach to be readily identified and proved. This approach had been adopted in respect of other behaviour orders, particularly Sexual Harm Prevention Orders under the Sexual Offences Act 2003 as amended.
The Court of Appeal held that the “relationship” clause did not comply with the guidance in Boness. The court rejected the respondent’s assertion that the terms were sufficiently clear. It questioned what was meant by “relationship” and when one was “formed” so as to trigger an obligation to inform police of the female’s name. The court considered how such a clause could be policed and concluded it was hopelessly vague. The court accepted that Mr Maguire’s submissions were well founded.
The court emphasised that identifying flaws in a clause in a criminal behaviour order or Sexual Harm Prevention Order is normally straightforward, but the more difficult task is settling upon a formulation that complies with the Boness criteria while addressing the proper concerns of the court. The fact that it may be considered necessary to impose a clause policing this aspect of the appellant’s conduct does not justify imposing an obligation that cannot be sufficiently clearly understood and monitored.
The court considered there was force in counsel’s observation that problematic behaviour on Mr Maguire’s part tended to feature once relationships became reasonably well established. The court noted that the fact a clause does not address every circumstance that can be envisaged does not mean it lacks sufficient utility to warrant being made.
The court settled upon a formulation to which Mr Masson raised no objection, acknowledging frankly it would not have been the subject of an appeal had Judge Kelson imposed it. The revised order required Mr Maguire to inform the local police of any address at which he resides within 14 days of moving there, and to inform the local police of the name and address of any female (excluding family members) with whom he resides for a period of 14 days or more, whether consecutive or otherwise. The court considered this formulation had sufficient clarity and “policeability” to be appropriate.
The court rejected the appeal against the 15-year duration. Mr Maguire had displayed very concerning behaviour towards women for many years and it was reasonable for the judge to consider that the risk he represents would persist for a long time. If a stage is reached where the order is no longer necessary, there is capacity to bring an application to vary or discharge it.
In short, the appeal was allowed in part: the criminal behaviour order was quashed and replaced with one in revised terms addressing residence and cohabitation with females, but the 15-year duration was maintained.
Mr Maguire had pleaded guilty on 3 July 2018 to two offences of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, and one offence of controlling or coercive behaviour, contrary to section 76 of the Serious Crime Act 2015. On 19 July 2018 Mr Recorder Palmer sentenced Mr Maguire to a total of four years’ imprisonment, comprising consecutive sentences for each offence. There was no appeal against those sentences. The Recorder adjourned a prosecution application for a criminal behaviour order under section 22 of the Anti-social Behaviour, Crime and Policing Act 2014 so that further evidence could be served and submissions made.
The offences had been committed against a young student, Amy Partington, with whom Mr Maguire became involved in January 2012. By June 2012 the relationship had become volatile and Mr Maguire began to exhibit violence towards the complainant. In July 2012 he assaulted her, causing injuries requiring hospital attendance, forming the basis of count 1. In February 2014 he strangled and assaulted her in the kitchen, causing her to pass out; this was count 3. The final count reflected behaviour between 2014 and 2018 that amounted to an offence contrary to section 76 of the Serious Crime Act. Mr Maguire was 32 at sentence and had 21 convictions for 40 offences spanning 11 November 1998 to 24 July 2017, including offences of violence. Ms Partington did not wish the court to make a restraining order, so the prosecution applied for a criminal behaviour order.
The adjourned application was listed on 18 December 2018 before Judge Kelson. Mr Maguire effectively conceded that the making of some form of criminal behaviour order was justified in light of the evidence forming the basis of the charges and a history of domestic violence in his relationships with other women. Two issues were contentious: first, a proposed clause requiring Mr Maguire to inform the local police station of the name of any new partner within 14 days of commencing an intimate relationship; and secondly, the duration of any order. The defence conceded that a clause requiring him to inform police where he was living was necessary and proportionate.
Judge Kelson was presented with evidence concerning complaints from other women with whom Mr Maguire had been associated in the past, including allegations of violence and rape (albeit not pursued to conviction). The picture painted was of a serial abuser of women with whom he formed relationships. On 18 December the judge adjourned to allow the prosecution to further consider the proposed clause requiring notification of any new partner. The judge ruled that such a clause was necessary but required “some sort of precise, workable definition”.
When the case returned on 21 December 2018 the prosecution presented a revised draft. Counsel described the second clause as designed to put Mr Maguire under a duty to inform police if he was forming a relationship with a female. Mr Maguire’s counsel objected, submitting that the clause offended the principles in R v Boness & Ors [2006] 1 Cr App R (S) 120 on the basis it was too vague and difficult to enforce. Counsel also observed that previous instances of domestic abuse had tended to exhibit themselves once relationships became established rather than in early stages. Judge Kelson rejected the objections, commenting that in his view Mr Maguire was, in terms of relationships with females, “a danger to shipping”. He made a criminal behaviour order in the terms requested by the prosecution and ordered it to subsist for 15 years.
Mr Masson, who had not appeared below, developed the objections raised before Judge Kelson. He submitted that the “relationship” clause did not comply with the guidance in Boness, which stated at paragraph 20 that a court should ask itself whether the terms of an order are clear so that the offender will know precisely what is prohibited. A working party report referred to in Boness recommended that prohibitions should be capable of being easily understood by the defendant and enforceable, allowing a breach to be readily identified and proved. This approach had been adopted in respect of other behaviour orders, particularly Sexual Harm Prevention Orders under the Sexual Offences Act 2003 as amended.
The Court of Appeal held that the “relationship” clause did not comply with the guidance in Boness. The court rejected the respondent’s assertion that the terms were sufficiently clear. It questioned what was meant by “relationship” and when one was “formed” so as to trigger an obligation to inform police of the female’s name. The court considered how such a clause could be policed and concluded it was hopelessly vague. The court accepted that Mr Maguire’s submissions were well founded.
The court emphasised that identifying flaws in a clause in a criminal behaviour order or Sexual Harm Prevention Order is normally straightforward, but the more difficult task is settling upon a formulation that complies with the Boness criteria while addressing the proper concerns of the court. The fact that it may be considered necessary to impose a clause policing this aspect of the appellant’s conduct does not justify imposing an obligation that cannot be sufficiently clearly understood and monitored.
The court considered there was force in counsel’s observation that problematic behaviour on Mr Maguire’s part tended to feature once relationships became reasonably well established. The court noted that the fact a clause does not address every circumstance that can be envisaged does not mean it lacks sufficient utility to warrant being made.
The court settled upon a formulation to which Mr Masson raised no objection, acknowledging frankly it would not have been the subject of an appeal had Judge Kelson imposed it. The revised order required Mr Maguire to inform the local police of any address at which he resides within 14 days of moving there, and to inform the local police of the name and address of any female (excluding family members) with whom he resides for a period of 14 days or more, whether consecutive or otherwise. The court considered this formulation had sufficient clarity and “policeability” to be appropriate.
The court rejected the appeal against the 15-year duration. Mr Maguire had displayed very concerning behaviour towards women for many years and it was reasonable for the judge to consider that the risk he represents would persist for a long time. If a stage is reached where the order is no longer necessary, there is capacity to bring an application to vary or discharge it.
In short, the appeal was allowed in part: the criminal behaviour order was quashed and replaced with one in revised terms addressing residence and cohabitation with females, but the 15-year duration was maintained.
The appellant pleaded guilty to two offences of assault occasioning accrual bodily harm and one of controlling or coercive behaviour and was sentenced to a total of 4 years imprisonment. He appealed against the imposition of a criminal behaviour order requiring him to notify his local police station of the name of any new partner within 14 days of commencing an intimate relationship. He conceded that a clause requiring him to inform the police where he was living was necessary and proportionate in the context of the history of domestic abuse.
Held: the terms of the clause were not sufficiently clear, what is meant by ‘relationship’, when is one formed such as to trigger an obligation? A new formulation was settled, and the appellant must “inform the local police of the name and address of any female (excluding family members) with whom he resides for a period of 14 days or more (consecutive or otherwise)”. The length of the order, 15 years, was reasonable given the risk he posed having displayed very concerning behaviour towards women.