In R (NM & NE) v Birmingham Magistrates’ Court [2015] EWHC 688 (Admin) judgment the Divisional Court (Sir Brian Leveson P, Walker J) considered the proper interpretation of the Sexual Offences Act 2003 (Remedial Order) 2012. 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.
There was an earlier case of R (Hamill) v Chelmsford Magistrates’ Court[2014] EWHC 2799 (Admin), the Divisional Court (Aikens LJ, Bean J) which 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 the claimants argued that the balancing exercise identified in Hamill was 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 is 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), i.e. 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 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].
NE was represented by Matthew Stanbury , instructed by Mark Newby of QS Jordans
We sought an anonymity order to protect the identity of the Claimant as set out in the judgment which is why the name of our client is not identified . It was on the basis 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.