Sex offender notification reviews guidance case

20 March 2015

In R (NM & NE) v Birmingham Magistrates’ Court [2015] EWHC 688 (Admin) the Divisional Court (Sir Brian Leveson P, Walker J) considered the proper interpretation of the Sexual Offences Act 2003 (Remedial Order) 2012 (the Order). NE and NM were represented by Matthew Stanbury, instructed by Mark Newby of QS Jordans on behalf of NE, and Katy Cowans of Irwin Mitchell on behalf of NM.

The Order introduced a review mechanism for those subject to the indefinite sex offender notification requirements, and was introduced following the decision in R (F) v Secretary of State for the Home Department [2011] 1 AC 331. In that case the Supreme Court held that the lack of any review mechanism within the indefinite notification scheme offended Article 8 ECHR. The Remedial Order amended the Sexual Offences Act 2003 and provides that, after a period of time has elapsed, an application can be made to the Chief Constable to be relieved of the notification requirements, with a right of appeal to the magistrates’ court.

In the first decision considering the review provisions, R (Hamill) v Chelmsford Magistrates’ Court [2014] EWHC 2799 (Admin), the Divisional Court (Aikens LJ, Bean J) held that the magistrates should examine whether a continuation of the notification requirements is, in Article 8(2) terms, proportionate: [68]. The Court further held that the magistrates must give reasons for striking the balance that they do, setting out in broad terms the matters judged as pointing towards and against it being necessary for the protection of the public that the offender should continue to be subject to the requirements: [69].

In the present cases that approach was endorsed by the claimants, but rejected by the Court. The claimants argued that the balancing exercise identified in Hamillwas required by Article 8 ECHR and, in any event, by s.91D (1)(2), which provides that the Chief Constable must “ consider the risk of sexual harm posed by the qualifying relevant offender and the effect of a continuation of the indefinite notification requirements on the offender ”.

However, the Court held that this meant the effect of the continuation of the requirements in protecting the public, and not in terms of its impact upon the offender. It held that the test is simply that set out in s.91C(2), ie,  whether it is necessary for the purpose of protecting the public or any particular members of the public from sexual harm for the qualifying relevant offender to remain subject to the indefinite notification requirements: [21] – [22]

The claimants further argued that the burden of proof had no part to play in the process, in that the magistrates are conducting a risk assessment rather than deciding inter partes litigation. The Court rejected this argument also, holding that since s.91C(2) says that the offender “must satisfy” the Chief Constable that it is not necessary for him to be subject to the requirements, then the onus is on him to demonstrate that the test is met [16].

The Court gave guidance that in future these cases should ordinarily be appealed by way of case stated rather than commenced as a claim for judicial review: [51] – [54].

In the individual cases the claimants had both been convicted of serious offences as children and were now adults. They had not reoffended sexually, although they had accrued other convictions, and both had taken different but tangible steps to rehabilitate themselves.

The court allowed NE’s claim on the grounds that the magistrates had failed to provide sufficient reasons for dismissing his claim: [36].

It dismissed NM’s claim, finding that the reasons were adequate, and that there was sufficient basis for the magistrates reaching the decision that they did: [50].

It is also important for practitioners to note that the claimants were granted anonymity in these proceedings, on the grounds that publishing their names would act as a very real disincentive for individuals to pursue their right to argue that they should no longer be subject to the requirements: [6] – [9]. Although the claimants were children when they had offended, and so had never been publicly named as sex offenders, there is no obvious reason why this principle should not apply in other cases, where the offences were committed by adults, and indeed to proceedings before the magistrates’ court as well as any Divisional Court proceedings.