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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> NE, R (on the application of) v Birmingham Magistrates Court & Anor  EWHC 688 (Admin) (20 March 2015)
Cite as: (2015) 179 JP 187, 179 JP 187,  2 Cr App R (S) 25,  EWHC 688 (Admin),  1 WLR 4771,  WLR(D) 135
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(SIR BRIAN LEVESON)
MR JUSTICE WALKER
| Regina on the application of NE
|- and -
|BIRMINGHAM MAGISTRATES COURT
- and -
CHIEF CONSTABLE OF WEST MIDLANDS POLICE
for NE and NM respectively
The Defendant did not appear and was not represented
Ms Alison Hewitt (instructed by Staffordshire and West Midlands Police, Joint Legal Services) for the Interested Party
Hearing date: 4 March 2015
Crown Copyright ©
Sir Brian Leveson P :
The Statutory Scheme
"For the purposes of the determination of an application for review under this section, a qualifying relevant offender must satisfy the relevant chief officer of police that it is not necessary for the purpose of protecting the public or any particular members of the public from sexual harm for the relevant offender to remain subject to the indefinite notification requirements."
(a) the seriousness of the offence in relation to which the qualifying relevant offender became subject to the indefinite notification requirements;
(b) the period of time which has elapsed since the qualifying relevant offender committed the offence (or other offences);
(c) where the qualifying relevant offender falls within section 81(1), whether the qualifying relevant offender committed any offence under section 3 of the Sex Offenders Act 1997;
(d) whether the qualifying relevant offender has committed any offence under section 91;
(e) the age of the qualifying relevant offender at the qualifying date or further qualifying date;
(f) the age of the qualifying relevant offender at the time the offence referred to in paragraph (a) was committed;
(g) the age of any person who was a victim of any such offence (where applicable) and the difference in age between the victim and the qualifying relevant offender at the time the offence was committed;
(h) any assessment of the risk posed by the qualifying relevant offender which has been made by a responsible body under the arrangements for managing and assessing risk established under section 325 of the Criminal Justice Act 2003;
(i) any submission or evidence from a victim of the offence giving rise to the indefinite notification requirements;
(j) any convictions or findings made by a court (including by a court in Scotland, Northern Ireland or countries outside the United Kingdom) in respect of the qualifying relevant offender for any offence listed in Schedule 3 other than the one referred to in paragraph;
(k) any caution which the qualifying relevant offender has received for an offence (including for an offence in Northern Ireland or countries outside the United Kingdom) which is listed in Schedule 3;
(l) any convictions or findings made by a court in Scotland, Northern Ireland or countries outside the United Kingdom in respect of the qualifying relevant offender for any offence listed in Schedule 5 where the behaviour of the qualifying relevant offender since the date of such conviction or finding indicates a risk of sexual harm;
(m) any other submission or evidence of the risk of sexual harm posed by the qualifying relevant offender;
(n) any evidence presented by or on behalf of the qualifying relevant offender which demonstrates that the qualifying relevant offender does not pose a risk of sexual harm; and
(o) any other matter which the relevant chief officer of police considers to be appropriate."
"Where such information is available, the offender's current situation and risks should be compared with this past information. Change in a positive direction, combined with there being no intelligence that would lead to the conclusion that the offender is still a sexual risk, along with the presence of protective factors such as stable accommodation; work; and supportive relationships may lead to a conclusion that registration is no longer required to manage the offender's risk of sexual harm."
"The issue in this case is one of proportionality. It is common ground that the notification requirements interfere with the offender's Article 8 rights, that this interference is in accordance with the law and that it is directed at the legitimate aims of prevention of crime and the protection of the rights and freedoms of others. ... The issue is a narrow one. The respondent's case is that the notification requirements cannot be proportionate in the absence of any right to a review. The challenge has been to the absence of any right to a review not to some of the features of the notification requirements that have the potential to be particularly onerous."
"Magistrates hearing an appeal under section 91E will therefore have to examine whether, in the particular case before them, a continuation of the notification obligation for at least a further 8 years, as required by section 91B(2) if the determination is made against the offender, is, in Article 8(2) terms, proportionate. In this regard, although section 91D(1)(b) refers only to the effect that a continuation of the indefinite notification requirement will have on "the offender", we think that a consideration of the proportionality of such a continuation (for at least 8 years after the 15 that will already have elapsed) would require an examination of how the continuing notification after 15 years would affect an offender's children: see for example ZH (Tanzania) v Secretary of State for the Home Department  2 AC 166 and H(H) v Deputy Prosecutor of the Italian Republic, Genoa  1 AC 338. The issue of where the burden of proving "proportionality" lies in this instance may be a nice point. We heard no argument about it and so is a point for another day."
The Index Offences
"[W]hat you did was evil and was wrong and you are old enough to know it. You struck terror into those girls, some of you, and some of you still maintain that there was nothing wrong about it and you appear to have the notion that girls are there simply to satisfy your sexual appetites when you feel like indulging them."
"Drugs are a well evidenced trigger factor for sexual offending and whilst there is no information to suggest any further involvement in sexual offending, clearly this individual's lifestyle, continued offending and intelligence around criminality exposes him to higher than normal risk of reoffending. ... I can find no evidence to support the offender having addressed his risk and am concerned that he may see removal from the register as his last barrier to continued criminality with no monitoring. Furthermore, it is evident from the intelligence, current court case and lifestyle that the nominal is extremely transient and this again heightens the degree of risk. He is also managed at High Risk which indicates the degree of concern placed around him."
"I fully agree ... that this is a tool that is used in respect of male adults. There is currently no such tool available for juveniles or females. In respect of [NE], it is correct that he was a juvenile at the time of conviction. The management of registered sex offenders requires officers engaged in such activity to determine the potential risk posed by an individual toward the public. It is also used to formulate the frequency of such activity involving the individual subject to the conditions namely visits, reviews and similar. Whilst the tool cannot be fully utilised in assessing the risk posed by [NE], the principles of that risk assessment are used to attempt to find as accurate a picture as possible and not to be over reliant on personal judgment."
" The seriousness of your offences (i.e. kidnap and rape of a female under 16 years)
Other convictions or cautions (i.e. 10 convictions for 19 offences since 1996)
The assessment of risk posed by you (you are currently managed as 'High Risk' and you have not completed any offence-focussed work)
Other matters considered to be relevant (you were convicted of failing to comply with your notification requirements in 2001)."
"Reasons: appeal refused on following grounds: - 1) Serious nature of index offence, 2) Assessment of risk, 3) Previous failure to comply with notification requirements in 2001 and 4) The Bench's concern in relation to your continuing criminal behaviour."
"We understand that this was one of the first appeals to the magistrates under section 91E, and we sympathise with the Bench who had to hear it. Dealing with a new and complex statutory regime is never easy. Although it is not within our power to prescribe the composition of the court, we venture to suggest that in the circumstances of this case it may be thought appropriate for the remitted hearing to be listed before a District Judge."
"- Standard of proof based on civil law
- Balance of probabilities
- Note that basis of application from Appellant is that being on register is affecting ability to obtain work and move on in his life.
- Heard in his evidence that refused job as driver due to sexual offence (not due to register)
- Also heard from [Superintendant] Claire Cowley that people on register can and do obtain appropriate jobs.
- We have noted reasons for difference of opinion between Claire Cowley and Police Officers and probation and we understand that there can often be conflict due to methods used in making assessment.
- We have heard of broader experience gained by Claire Cowley and that she takes a more rounded view of the situation when arriving at her conclusions
- We also note that although PC Lucas has had direct with the Appellant, it has amounted to no more than 4 x 5 minutes meetings annually and rather than recommending a de-registration, he had the option to suggest lowering the risk from High to Medium or low and thereby adjust his management accordingly.
- [Det Insp] Thursfield had no contact with Appellant
- The [OASys] assessment adopted by probation is not as specifically focussed on sexual offenders
- When looking at whether there have been any positive factors to indicate a change in lifestyle, we accept that he has secured stable accommodation but also note the following negative factors
- Continued to re-offend not showing any sings of wanting to become a law abiding citizen
- Has served further prison sentences since release from the original offence sentence
- Additional periods in prison were for violence and drug related offences, thereby indicating that his lifestyle is unchanged and he still harbours pro-criminal [attitudes] in fact demonstrating a blatant disregard for the law.
- Further evidence heard today has linked him with firearms related involvement and association with known criminals.
- The magistrates have noted that these are extremely serious offences which have lifetime consequences on the victims.
- We are therefore not convinced at this time, that the risk of committing further sexual offences is reduced on the balance of probabilities, that the Appellant has taken necessary actions to demonstrate the qualities that would justify removal from the register."
"the only risk assessment tool that we are aware of RM2000 is not suitable for males who were under 16 at the time of committed the offence (sic)."
"(1) Any person who was a party to any proceedings before a magistrates court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved "
Mr Justice Walker :