Hamill v The Chelmsford Magistrates' Court & Anor (Rev 1) [2014] EWHC 2799 (Admin)

Case No CO/12468/2013[2014] EWHC 2799 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/08/2014
Before
LORD JUSTICE AIKENSMR JUSTICE BEAN
Between
HamillClaimantThe Chelmsford Magistrates' CourtDefendantChief Constable of Essex PoliceInterested Party
Ian Brownhill (instructed by the Prisoners' Advice Service) for Claimant for The Defendant and the Interested Party did not appear and were not represented on the first hearing date.On the second hearing date Jane Oldham (instructed by Essex Police) for Interested PartyHearing Hearing dates: 09/05/2014 and 08/07/2014
Judgment
[1]This is the judgment of the court to which both of us have contributed.

I. Synopsis

[2]There is before the court a claim for judicial review of a decision of a bench of the South Essex magistrates on 5 June 2013 at Chelmsford. They dismissed an appeal by Mr Desmond Hamill against the decision of the Chief Constable of Essex Police, made on 25 October 2012 but only notified on 14 January 2013, that Mr Hamill should continue to be subject to the notification requirements set out in Part 2 of the Sexual Offences Act 2003, (“SOA 2003”), as amended. The claimant had been convicted of rape in 1994. Since the Sex Offenders Act 1997 had come into force, he was obliged, as a result of his conviction and sentence, to notify the police of his address and other details and had to do so for “an indefinite period”. After amendments to the SOA 2003 came into force in 2012, the claimant applied to the Chief Constable under section 91B of the amended SOA 2003 to be relieved of his obligations of notification. Detective Superintendent Wilson, acting on behalf of the Chief Constable, determined that the claimant should not be. The claimant’s appeal to the magistrates was dismissed. Permission to bring the claim for judicial review was granted by Green J on 9 January 2014. At the first hearing on 9 May 2014 the claimant was represented by Mr Ian Brownhill. Neither the defendant, the Chelmsford Magistrates Court, nor the Interested Party, the Chief Constable of Essex Police, appeared or was represented at that hearing.[3]At the end of Mr Brownhill’s argument on 9 May 2014 we announced that we would grant judicial review, quash the decision of the Magistrates’ Court of 5 June 2013 and remit the matter to another Magistrates’ Court to hear a fresh appeal. We said that we would hand down our reasons at a later date.[4]At the hearing on 9 May an issue arose as a result of questions to Mr Brownhill from the court. This concerned the fact that the relevant determination had been signed, and so apparently made, not by the Chief Constable of Essex Police but by Detective Superintendent Ewen Wilson. We asked whether Mr Brownhill wished to take the point, adumbrated in the grounds of appeal to the Magistrates’ Court, that this was not in accordance with the provision in section 91C of the SOA 2003 (as amended) that the decision should be taken by the “relevant chief officer of police”. We said that if Mr Brownhill did take that point it was a matter that we would wish to deal with in our reasons for allowing the appeal. Subsequently, in a note dated 13 May 2014, Mr Brownhill notified the court that he did wish to take the point. As this seemed to us to raise an issue of principle on which we should hear argument on behalf of the Interested Party, we ordered that the matter should be re-listed on notice. We said that the Interested Party would be entitled to appear by counsel to address the court on this further issue if so advised. Both Mr Brownhill and Mrs Jane Oldham, on behalf of the Interested Party, served written submissions on the issue. On 8 July 2014 we heard further oral argument and announced that we would give our reasons in writing at a later date.[5]So far as we are aware this is the first time that a judicial review of a Magistrates’ Court decision on an appeal relating to these new provisions which enable a sex offender to seek a review of an “indefinite notification requirement” under the SOA 2003 has come before the High Court. In Commissioner of Police for the Metropolis v Central Criminal Court and others [2013] EWHC 179 (Admin) the Divisional Court had to consider a case where a judge had purported to revoke the notification requirements for an indefinite period of an offender in circumstances where sections 91A-E of the SOA 2003 (as amended) were not applicable. It was largely for that reason that we decided to reserve our reasons for allowing the appeal.[6]The Sexual Offences (Amendment) 1992 Act applies to this case, so that there must be no reporting of anything that might lead to the identification of the victim of the sexual offence to which we refer. There is however no need for general anonymisation of any report; only non-identification of the victim.

II. The Facts of the offence and the trial and sentence

[7]On 8 February 1991, Mr Hamill, whom we will refer to as the claimant, raped a woman, whom we will refer to as Ms E, who was 16 at the time. The claimant was then 23 years old. The rape was violent and occurred at night after the claimant had offered to walk Ms E home after an evening drinking in a public house. The claimant was arrested and charged with rape on 11 February 1991. He was granted bail but then fled abroad to the Republic of Ireland. He was extradited in 1993 and stood trial and was convicted of rape on 10 January 1994 in the Crown Court at Middlesex Guildhall. On the same day he was sentenced to 6 years imprisonment. The claimant was granted conditional release on 28 May 1996. The sentence expiry date was 13 March 1999.

III. The Notification Requirements under the Sex Offenders Act 1997

[8]On 1 September 1997 the Sex Offenders Act 1997 came into force. We will refer to that Act as the 1997 Act. This Act instituted a system whereby sex offenders were subject to mandatory notification requirements. Broadly speaking the effect of the 1997 Act is that a person who becomes subject to the notification requirements has to notify to the police, within a very short time of a “relevant date”, his name and home address. If there is a change of home address, he must within 14 days notify the police of that change. Under the 1997 Act the notification was to be done by attending a police station in the person’s local police area and by giving an oral notification to a police officer or other duly authorised person. Failure to comply with the notification requirements without reasonable excuse and the act of giving false information were made offences. The Schedule to the 1997 Act set out the sexual offences in respect of which the obligation of notification applied, upon conviction and sentence. A table at section 1(4) of the 1997 Act set out the periods for which the obligation of notification would last. The period depended, in principle, on the type of sentence passed on the offender. The minimum period of notification was set at 5 years and the maximum was “an indefinite period”. The maximum applied to persons who had been sentenced to imprisonment for life or a term of imprisonment of 30 months or more for one or more of the offences set out in the Schedule to the 1997 Act.[9]Although the claimant had been convicted before the 1997 Act came into force and, indeed, he had been released from prison on licence before it did so, he was still subject to the provisions of that Act. On behalf of the claimant, Mr Ian Brownhill accepted that this is the effect of section 1(3)(b) of the 1997 Act, which stated that: “(3) A person becomes subject to [the notification requirements] if, at [the commencement of this Part of the 1997 Act]…(b) he is subject to supervision, having been released from prison after serving the whole or part of a sentence of imprisonment in respect of such an offence”.[10]The effect of section 2(1) of the 1997 Act as originally framed was that the Claimant therefore came under an obligation of notification from the moment the 1997 Act came into force and had to give his local area police that notification within 14 days. The period in which notification had to be given after a “relevant date” was later shortened to 3 days by a statutory amendment which took effect in 2001.[11]The claimant has stated in a witness statement dated 13 May 2013 that he has been subject to indefinite registration on the Violent and Sex Offender Register (“ViSOR”) since his release. That cannot be correct as the 1997 Act was not in force at the time of his release. Moreover, there is no question of “registration” under the 1997 Act the obligation of notification is automatic. But, in effect, it is accepted that the claimant complied with his obligation when he was first obliged to do so.

IV. Subsequent Events

[12]Upon his release on licence the claimant lived in London, then in Essex. He said in his witness statement that he always fulfilled the notification requirements whilst resident in London and Essex.[13]The claimant has been twice married. He had a daughter by his first wife and that daughter now has two children of her own. In 2002 the claimant married his current wife, although they had been together since 1992. His wife is a health care worker. Mr and Mrs Hamill have three daughters, now aged 21, 15 and 8. The eldest daughter lives in Ireland with her fiancé. The two younger daughters live with the claimant and his wife.[14]In 2006 the claimant and his wife and two daughters moved to Ireland. The claimant accepts that he only informed Walthamstow police of this move after he had departed. He has explained that this was because of intense pressure from his wife who wished to start their life in Ireland afresh and who was concerned that Walthamstow police might somehow prevent them from emigrating to Ireland. The claimant said that his wife was also concerned about the possible disruption that might be caused by visits of the Irish police to their home. The claimant was cautioned for this failure. However, the claimant did notify the Irish police shortly after arriving in Ireland in October 2006. He maintained routine contact with, first, Sergeant Gerry Cawley and then Sergeant Ingrid Moore. The claimant states that Sergeant Cawley relayed records of the claimant’s “registration” in Ireland to the police in the UK, although the claimant was not given details of to whom, precisely, these records were sent.[15]The claimant returned to England to work in 2010, whilst his family continued to live in Ireland. In 2012 his family joined him in England. They now live in Chelmsford. In his statement the claimant says that he has notified the police of his address in England since his return and has also given the police notice every time he has left the UK for more than 3 days, as required (see below).[16]The claimant has worked as an operator of heavy machinery for many years. He works a 6 or 7 day week and up to 10 or 12 hours a day. He has worked for the same company since 2004. He sometimes has to travel for work away from his home in Chelmsford.[17]There is no dispute that the claimant has fulfilled his notification obligations with his local police in Chelmsford since he came to live there.[18]The current statutory requirements for notification are contained in Part 2 of the SOA 2003, which repealed and replaced the provisions in the 1997 Act. Section 81(3)(c) makes a person who was convicted of a relevant sexual offence before 1 September 1997 and who was, on 1 September 1997 subject to supervision, having been released from prison after serving the whole or part of a sentence in respect of a relevant sexual offence, subject to the notification requirements that are now set out in Part 2 of the SOA 2003. Therefore, as Mr Brownhill accepted on behalf of the claimant, Mr Hamill became subject to the notification requirements set out under Part 2 of the 2003 Act once it came into force.[19]The notification requirements under sections 83-86 of the SOA 2003 are more stringent than they were under the original 1997 Act. Section 83(5) requires the offender to give more information, which is set out in section 83(5), and under section 83(5)(h) the offender may have to give additional information as prescribed by Regulations made by the Secretary of State. Such regulations have been made, for example, by the Sexual Offences Act 2003 (Travel Notification Requirements) Regulations 2004, whereby a relevant offender must give notification of any intention to leave the UK for three days or more. Those regulations were made under section 86, which itself stipulates that if such regulations are made then a notification under them must disclose the date on which the offender will leave the UK , the country to which he will travel, his point of arrival in that country and any other information prescribed in the Regulations, together with any information prescribed by the Regulations about the offender’s return to the UK. Under section 87 the offender must, within 3 days of various changes identified in the section, give the police notification of such changes in his “local police area”.[20]Thus, by the time the claimant and his family moved to Ireland in 2006, he was obliged to give notification of that move in accordance with the Travel Notification Requirements Regulation. As already noted, he failed to do so in time and he was cautioned for this failure.[21]Under the terms of both the 1997 Act and the SOA 2003 there was no mechanism by which an offender who was subject to the notification provisions for an indefinite period could apply to the police or any tribunal for a review of the need for him to remain subject to those requirements. In R(F) (a child) v SSHD, R (Thompson) v SSHD [2011] 1 AC 331, the lack of such a mechanism in Part 2 of the SOA 2003 was challenged as being a disproportionate interference with the right to respect for private and family life of the offender as guaranteed under Article 8 of the European Convention on Human Rights (“ECHR”). The Supreme Court held that the notification provisions in and under the SOA 2003 were capable of causing significant interference with Article 8 rights: see [44] of the judgment of Lord Phillips of Worth Matravers PSC. It held that if those who were subject to a lifetime notification requirement could show that they no longer posed any significant risk of committing further sexual offences, then there was no point in subjecting them to the interference with their Article 8 rights that notification would impose. Moreover, given the elaborate nature of both the notification requirements and the statutory obligation on responsible authorities to establish arrangements for the purpose of assessing and managing the risks posed in that area by relevant sexual and violent offenders, then to continue to subject offenders to lifetime notification requirements if they no longer posed any significant risk of committing further sexual offences when that fact could be demonstrated “[could] only impose an unnecessary and unproductive burden on the responsible authorities”: see [51] of Lord Phillips’ judgment. The Supreme Court commented that the legislature could impose a suitably high threshold for any review that might be made: see [57] of Lord Phillips’ judgment. The Supreme Court concluded (agreeing with the Divisional Court and the Court of Appeal) that the lack of any provision for an individual review of the notification requirement did constitute a disproportionate interference with such a person’s Article 8 rights. Therefore the Supreme Court, upholding the decisions of the Divisional Court and the Court of Appeal, granted a declaration of incompatibility under section 4 of the Human Rights Act 1998.[22]As a result of that decision, the Sexual Offences Act 2003 (Remedial) Order 2012 (SI 2012 No 1883) inserted into the SOA 2003 new provisions as sections 91A to 91F. These create a mechanism by which an offender who is subject to the notification requirements under Part 2 of that Act for “an indefinite period” may apply to the police for a review of the need for him to remain subject to those requirements, if certain pre-conditions are fulfilled.[23]Sections 91A-91F are long and complex and so we have set them out in Appendix 1 to this judgment. We emphasise a number of points about the new provisions here. First, under section 91A(1) it is only a “qualifying relevant offender” who can make an application. The definition of a “qualifying relevant offender” is given in section 91A(2)). He must be subject to the indefinite notification requirements and not be subject to either a sexual offences prevention order made under section 104(1) of the 2003 Act or an interim sexual offences prevention order made under section 109(3). The claimant fulfilled both these conditions. Secondly, under section 91A(1), any application for a determination that the qualifying relevant offender be no longer subject to the indefinite notification requirements has to be made to the “relevant chief officer of police”. That term is defined in section 91A(4) and (5) as being “the chief officer of police for the police area in which a qualifying relevant offender is recorded as residing or staying in the most recent notification that was given by him under section 84(1) or 85(1)”. In the case of the claimant, that meant the chief officer of police for the police area of Essex.[24]Thirdly, under section 91B(1)-(2), an offender who is subject to a notification requirement for an indefinite period (if he was over 18 when the notification requirement started) may only apply for a review once he has completed 15 years of the notification requirement. The date when the period is completed is called “the qualifying date”. If the chief officer of police makes a determination that the indefinite notification requirement should continue, then this will be for a period of at least a further 8 years, and can be for a period of more than a further 8 years up to a total of 15 years more after the determination: see section 91B(4)-(6). The test for imposing the requirement beyond the minimum further 8 years is that the chief officer of police considers that “the risk of sexual harm posed by a qualifying relevant offender is sufficient to justify a continuation of those requirements after the end of the 8 year period…”. The term “risk of sexual harm” is defined in section 91B(11)(b).[25]Fourthly, the test that the chief officer of police has to apply when determining the application for review is set out in section 91C(2). This test is central to this appeal, so we will set it out here again:
“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 qualifying relevant offender to remain subject to the indefinite notification requirements.”
There could be issues on the burden and standard of proof imposed by this provision. We did not hear argument about them and so we say no more about it. If the chief officer of police determines that the offender should not remain subject to the notification requirements, he will cease to be so subject on the date that he receives notice of the determination: section 91C(4).[26]Fifthly, section 91D sets out what the chief officer of police must do when considering an application for review. In particular he must “take into account” the matters listed in section 91D(2), where 15 separate factors are listed.[27]Sixthly, section 91E gives an offender the right of appeal against a determination of the chief officer of police. The appeal is to a Magistrates’ Court and the appeal must be made within 21 days of the date of receipt of the notice of determination by the offender.[28]Lastly, by section 91F the Secretary of State must issue guidance to relevant chief officers of police in relation to the determination by them of applications made under section 91B.[29]We were shown a copy of the Guidance that the SSHD has published pursuant to the obligation imposed by section 91F. It summarises the effect of the new provisions and Mr Brownhill did not have any particular argument to make on its provisions, save for one point. This related to a question and answer in the section “Frequently Asked Questions”. The question asked: what will be the rank of the determining officer? The answer given is:
“The authority sits with the Chief Constable of Police which is delegated to a Superintendent to authorise all determinations. An offender manager will give consideration to the assessment of risk in accordance with the factors outlined in the legislation. All determinations will be subject to the scrutiny of a Detective Inspector and a Superintendent”
. This is relevant to the issue on which we heard further argument on 8 July.[30]ACPO issued its Guidance in September 2012. Mr Brownhill did not place reliance on any of its contents. Appendix B to the ACPO Guidance sets out a standard form for an application for review of the indefinite notification requirements. That standard format was used in this case.[31]The claimant applied for the review of the indefinite notification requirements to which he was subject under the SOA 2003, as amended, by an application dated 9 September 2012. Section 8 of the standard format is headed “Reasons for applying for a review”. In response to that request, the claimant provided two pages of reasons in manuscript. This set out his family history, the fact that his second wife worked as a health care worker, his hobbies and sports and some details of his work. It points out that he had completed two “treatment programmes”, the first whilst serving the custodial element of his sentence at HMP Wandsworth and the second after his release upon licence. As for his attitude to re-offending, the claimant stated: “As a 45 year old married father of four daughters with one grand child and the second only 6 weeks away I am far from perfect, mistakes I’ve made in the past I can not change but I can change the future for my family and I…Should you require more information I would be glad to help”.[32]Mrs Hamill provided a supporting statement, pointing out that she met Mr Hamill over 20 years ago, that is after he had committed the offence but before he was extradited to stand trial. She was aware of his offence. They had been married 10 years. Mrs Hamill stated that she and her husband had “always protected” their children and “…don’t feel it would benefit them in any way to become aware of [Mr Hamill’s] past. That is why we need [Mr Hamill’s] name removed from the register…”.[33]The first part of the actual Review Document was completed by Mr Hamill’s offender manager, Detective Constable Sharon Joiner. Under box 7 (details of any subsequent offences of failing to comply with notification requirements) Under section 91 of the SOA 2003 it is an offence if a sex offender fails to comply with the notification requirements set out in the Act and any Regulations made under it. It is punishable by up to 6 months imprisonment on summary conviction or up to 5 years imprisonment if convicted on indictment. it notes that Mr Hamill received a caution for failure to comply with the requirement to notify that he was moving his family home to Ireland. Under box 15 (details of engagement with responsible bodies through “Multi-Agency Public Protection” – MAPPA – meetings) the answer given is that the claimant “has not been discussed at MAPPA”. Under Part 3 of the Review Document, headed “Risk Assessment”, box 16 asks for the “current RM2000 Risk Assessment”. RM2000 (Risk Matrix 2000 S& V Scale) is a static risk assessment tool which is used in relation to adult male sex offenders who were over 16 at the time of the offence. The tool is used by the police, probation and prison service and provides the risk of re-conviction for offenders grouped (low, medium, high, very high risk of reconviction) by certain historic criteria eg number of court appearances for a sexual offence, age etc. All adult males that are subject to the notification requirements will have an RM2000 score. The response is “current RM2000 risk level is low (190912)”. Under box 17, which asks for other evidence of “the risk of sexual harm posed by the relevant offender to the public or any particular members of the public in the UK (including by MAPPA partners)” the answer is:
“no new intelligence; no raised concerns from monitoring visits”
. This last reference is to visits that the police have apparently made to Mr Hamill’s home. It is unclear from this document (or any other in the papers) whether the police performed these visits pursuant to the powers granted by section 96B of the SOA 2003.That section, which was added to the SOA by section 58(1) of the Violent Crime Reduction Act 2006, enables a “senior police officer” ie. one of the rank of superintendent or above, to apply to a magistrate for a warrant to enter and search the home address of a person subject to the notification requirements. The magistrate should only grant such an order if it is necessary (our emphasis) for a constable to enter the premises “for the purpose of assessing the risks posed by the relevant offender to whom the warrant relates”: section 96B(1)(a). Under box 18, which refers to any submission of evidence on behalf of the applicant, the offender manager refers to the letter that the claimant had provided. It summarises the present position as being: “He is in a stable and supportive marriage and is in full time employment. No issues/concerns to report”.[34]The recommendation of the offender manager is as follows:
“I have monitored this offender periodically over the last 18 months, although he had a time back in Ireland. [He] has been compliant to monitoring with [Public Protection Unit – PPU] officers past and present, allowing officers to see all of his living environment and fulfilling his obligations under the SOA 2003. [He] is in a supportive relationship and has not committed any further sexual offences. There is no intelligence of concern. [He] should be considered as eligible for removal as requested”
. We take this to be a recommendation that the claimant should no longer be made subject to the indefinite notification requirements.[35]However, this view was not supported by the Detective Inspector, Offender Management, DI Biddle. He provided a separate report. This gave details of the claimant’s original offence and his subsequent history. It refers to the claimant’s time in Ireland and his return to Essex. DI Riddle comments that this “will be the first opportunity that Essex Police will have had to assess him living at home with his family for any length of time. He was recently quite upset at the fact that he was visited at home by PPU officers as his children are not aware of his conviction”. DI Riddle also comments somewhat equivocally that the claimant “has always been co-operative in as much he has provided just enough information to fulfil his requirements”.[36]DI Riddle’s report continues: “My concern with Hamill is that he has spent long periods of time away from his family for work purposes and has spent time between the UK and Ireland. This [sic] has proved difficult to monitor his risk effectively. His DNA is not on the national database even though ViSOR states that it is. In 2006 Met officers tried to obtain his DNA with consent but he refused. Although Hamill’s conviction was 16 years ago it was extremely serious and violent. As stated he is not on the DNA database and refuses to be. He has spent time between London, Ireland and Essex and long periods of time away from his family. It is possible that due to his lifestyle over the past number of years that he has had the opportunity to commit further offences without being detected. It is also possible that he is a changed man and lives and works for his family as corroborated by his wife in her letter. I do not support the request. I feel that Hamill should be monitored within Essex for a period of time now that his life finally appears to be settled. He will be living in Essex with his family and will also be working here. This will give us the opportunity to effectively risk assess him and conduct regular intelligence work. Due to his movements over the years I’m not sure that this has always been possible for the police in London, Ireland and Essex. But more significant than that is the serious nature of his crime”.[37]The claimant challenges the statement about DNA in his witness statement of 13 May 2013, in which he says that a DNA sample was taken from him during his initial arrest in 1991 and again in 2006 when he was charged with drink/driving in Wales. He says that he has never objected to his DNA being added to the national register.[38]It is noteworthy that DI Biddle’s report does not mention the statutory test set out in section 91C(2). Nor does it indicate that he has taken account of the 15 specific matters set out in section 91D(1) and (2). DI Biddle’s report is largely speculative about the possibility that, because of Mr Hamill’s somewhat peripatetic work pattern, he would have “had the opportunity to commit further offences without being detected”. No evidence is referred to that would support such a suspicion. There is no mention of what, if any, checks DI Biddle performed with either the Metropolitan Police or the Irish police to see if the claimant had fulfilled his notification requirements before he resettled in Essex in 2012. The comment of DI Biddle that if Mr Hamill continued to be subject to the notification requirements he could be monitored in Essex “for a period of time” does not seem to take account of the fact that under section 91B(4) of the SOA, if a request to terminate the notification requirements is refused, an offender has to wait at least 8 years before a further application can be made.[39]The last part of the Application form, which is Part 5 and is headed “Decision”, records the decision of Superintendent Ewen Wilson that the claimant be notified that he will remain subject to the notification requirements. In the box for reasons, Superintendent Wilson states:
“…I acknowledge that he is compliant with monitoring arrangements, however at times he has evaded justice and failed to comply with foreign travel notification requirements. Further these notification and monitoring arrangements are focused on management of risk they are not punitive as his wife seems to believe. I believe there is just cause to continue to monitor the offender and that a legal basis exists to do so….”
[40]Once again there is no mention of the statutory test in section 91C(2) nor the matters that the “relevant chief officer” must take account of pursuant to section 91D(1)(c) and (2).[41]The decision of Detective Superintendent Wilson is dated 25 October 2012. The decision was not notified to the claimant until 14 January 2013. We do not know the reasons for the delay. The notification may or may not have been within the time limits imposed by section 91C(1), but Mr Brownhill did not take any point on this.[42]On 11 February 2013 the solicitors for the claimant wrote to Detective Superintendent Wilson asking for a copy of the claimant’s application for review under section 91B and a copy of “the recommendations made” so that the solicitor could advise on the merits of an appeal to the Magistrates’ Court. On 15 February 2013 the claimant issued an appeal in the Chelmsford Magistrates Court against the decision made on behalf of the Chief Constable of Essex police. This appeal itself appears to be out of time as it should have been brought within 21 days of the receipt by the claimant of the notice of determination: see section 91E(2). However, no point seems to have been taken about the appeal being out of time by anyone at any stage.[43]In summary the grounds of the appeal were, first, that the Interested Party’s reasons for the determination were insufficient so that he had failed to comply with the statutory requirement of section 91C(3)(a) that the determination “contain a statement of reasons for the determination”. Secondly, it was alleged that there is “no evidence that [the Interested Party] The appeal notice says “Respondent” but that must be wrong. has turned his mind to the statutory requirements”. We take this to be a reference to the requirements set out in section 91C(2) and section 91D(1) and (2) referred to above. The grounds of appeal go on to state that “the Appellant notes that the [Interested Party] himself has not signed the reasons and there is no statute allowing delegation to the Officer who did sign those reasons”. That is the origin of the point taken up by the court at the hearing on 9 May 2014 and which Mr Brownhill decided to pursue, thus requiring a further hearing on 8 July.[44]The third ground of appeal is that it “is not proportionate” to require the appellant to continue to be subject to the notification requirements. Under this heading it is stated that “there is no evidence at all that the Appellant poses a continuing risk of sexual offending. Indeed the Appellant will rely on statistical analyses showing that a rape conviction is not predictive of other sexual offending” and there is a reference to section 91D(1)(b). The appeal notice then makes short submissions in relation to each of the factors set out in section 91D(2)(a) to (o). It concluded by submitting that if those statutory factors are applied “continued notification is clearly disproportionate”.[45]Following service of this appeal on the Interested Party, Detective Superintendent Wilson sent a letter dated 21 March 2013 to the claimant’s solicitors. This was in response to their letter of 11 February. Detective Superintendent Wilson said that following the solicitor’s letter he had “taken the opportunity to review” his decision again. He goes on to state that throughout his deliberations he was “mindful” of his responsibility to assess the risk of sexual harm to the public “presented by your client”. Detective Superintendent Wilson then went through each of the factors set out in section 91D(2)(a) to (o), something he had conspicuously failed to do in the determination itself. Under a heading “information supplied by Hamill and his wife, Mandy Hamill” Detective Superintendent Wilson notes the current stable family situation but also comments:
“I have also taken into account that he was in a relationship with his wife at the time that he was evading justice for violently raping a young girl The victim was 16 at the time of the offence. and at the time [sic] he failed to comply with his notification requirements”
. At the conclusion of these points the letter stated that, “for the reasons given”, Detective Superintendent Wilson was “not satisfied that the risk is so low that it is no longer necessary for Hamill to remain subject to the notification requirements”. The letter also states that it has taken account of the claimant’s rights under ECHR Article 8 and there are two paragraphs considering that issue. It summarises the position as follows:
“The purpose of the notification requirements is to continue to monitor and assess the offender’s risk to the public, in this case of sexual harm. I contend [sic] that considering the gravity of the offence, that Hamill sought to evade justice, that he has moved residence for considerable periods of time and that he has previously failed to satisfy the requirements it is necessary and proportionate for Essex Police to continue to monitor him. The purpose of this monitoring exercise is to assess his risk with a view to protecting the public from any sexual harm posed by Hamill”
.

The appeal to the Magistrates

[46]A bench of lay magistrates considered the appeal. A legal adviser was in attendance. The magistrates were provided with a paginated bundle. This apparently included an article from Legal and Criminological Psychology (2004), a publication of the British Psychological Society. The article is entitled: “Sexual offenders discharged from prison in England and Wales: A 21-year reconviction study” and is by Jenny Cann and others: we will call it “the Reconviction Study”. (This article had been served on the claimant’s solicitors on 30 May 2013. It was referred to at [54] of the judgment of Lord Phillips in R(F) v Justice Secretary.) The magistrates heard oral evidence from Detective Superintendent Wilson on behalf of the Interested Party. He said that he had “concerns” about the level of supervision employed by the Irish police. This is not a factor set out either in the original determination or in Detective Superintendent Wilson’s letter of 21 March 2013. The magistrates also heard evidence from the claimant and his wife Mrs Hamill. Counsel for the claimant (Mr Brownhill) and for the Interested Party (Miss Lambert) made submissions, then the magistrates retired.[47]The magistrates dismissed the appeal and gave their reasons orally in open court for doing so. These are too long to quote here in full but we do reproduce them as Appendix 2 to this judgment.[48]In summary, the magistrates noted that they had heard oral evidence as summarised above and that they had considered the “21 year reconviction study”. They noted the reasons given by Superintendent Wilson for the determination that the claimant should remain subject to the notification requirements. In particular the magistrates noted that Superintendent Wilson considered that “due to disjointed monitoring due to a number of police forces in Essex, London and Ireland, Essex Police has had insufficient length of time to monitor Mr Hamill”. Then the magistrates record: “This is substantiated by the 21 year reconviction study which suggested that the risk of reconviction increases with the passage of time”.[49]The magistrates’ conclusion is that due to the seriousness of the original offence, the fact it was opportunistic and “random in nature”, and “coupled with the fact that the risk of reconviction increases over the length of time”, there was "an overriding requirement to monitor the risk that Mr Hamill poses to society”. The magistrates also stated that they had considered the Article 8 rights of the claimant and his family, but concluded that “…the level of monitoring is proportionate considering all the circumstances”.[50]Mr Brownhill accepted that the claim for judicial review could only succeed in this case if he demonstrated that the magistrates had erred in law or there had been an error in procedure that resulted in the decision being unjust. He submitted that the nature of the appeal to the Magistrates’ Court under section 91E of the SOA 2003 was such that the magistrates had to reconsider all the factors that the chief officer of police should have considered pursuant to section 91D(1) and (2). The magistrates were therefore obliged, in his submission, to consider all the factors set out at section 91D(2)(a) to (o). He said that they failed to do this and they failed to give proper reasons for their decision to dismiss the appeal. He submitted that both the chief officer of police and the magistrates were under the same duty to give reasons as the Parole Board are and referred, by analogy, to a statement of Lord Bingham CJ in R(Oyston) v The Parole Board and others (unrep. 1 March 2000), at paragraph 47 on what factors both the chief officer of police and the magistrates should consider. Further, he submitted that in dismissing the appeal the magistrates also failed to take account of the fact that the claimant could not apply for a reconsideration of the notification requirement for a further 8 years (at least) after the chief officer of police’s unfavourable determination: section 91B(2)(b). Moreover, the magistrates’ reference to Article 8 was no more than lip service. They had not performed a proper exercise of seeing whether the continuation of the requirement would be proportionate.[51]Mr Brownhill’s other main argument was that the magistrates had been wrong to rely on the Reconviction Study as the primary reason for dismissing the appeal. Furthermore, they had misinterpreted it. Contrary to the statement of the magistrates in their reasons for dismissing the appeal, the study did not suggest that the risk of reconviction of sex offenders increased with the passage of time. The conclusions of the study were as set out at [54] of Lord Phillips’ judgment in R(F), viz. that during the 21 year period of the study, out of 419 offenders 103, or 25%, committed a total of 405 sex offences during the period. 37 re-offended over 5 years after release and 19 at least 10 years after release. The authors’ conclusion was that “…it seems to be the case that some [sex offenders] will wait a number of years before they first [re-offend]. This has implications for the length of supervisory periods for released sexual offenders. In this sample, there were some for whom 10 years or longer passed before their received a reconviction for a sexual offence….”. In Mr Brownhill’s submission, this was far from demonstrating that, statistically, the “risk of reconviction” increased with the passage of time.[52]Mr Brownhill raised two particular points on the facts of the claimant’s case. First, before the magistrates Mr Brownhill had challenged Detective Superintendent Wilson on the issue of the ViSOR records regarding the claimant’s notification record. He had accepted that under the SSHD’s Guidance paragraph 21, if an offender notified the police of a new address with the result that the offender would be managed by a different area police force, it was the duty of the existing force to record this in ViSOR and to transfer the case in accordance with current ACPO Guidance. However, Detective Superintendent Wilson had said in evidence that Essex police had not had time to consider these records. We were shown a sheet entitled “Chronology of Addresses and Notification History for Desmond Hamill” which gave details of addresses from 2000 to 26 September 2007, an address in Ireland from 29 October 2006 to 6 August 2010 and addresses in Essex and London from that date onwards. The sheet notes that there were no ViSOR recordings during Mr Hamill’s stay in Ireland “as the system is not used there”.[53]Secondly, in relation to the statement of Detective Superintendent Wilson in evidence to the magistrates that it was his view that the supervision of the Irish police was “not up to the same standard” as that of the UK police, Mr Brownhill drew our attention to the fact that the UK and the Republic of Ireland had signed a Memorandum of Understanding (“MOU”) relating to the exchange of information on “registered sex offenders” who intended to travel between the two states. The MOU was effective from 27 November 2006. Under it police forces in the UK are to inform the Garda Siochana in the Irish Republic when an offender notifies the UK police of the offender’s intention to travel to Ireland and vice versa. The MOU states that “information will be exchanged through three points of contact: the National Central Bureau for Interpol in England, Wales and Scotland, the Police Service of Northern Ireland and An Garda Siochana for Ireland”. The MOU also states that an offender who has given notification of an intention to travel to Ireland is to be told by the UK police that the police in the Irish Republic will be notified of the offender’s intention to travel there.[54]Mr Brownhill told us that he cross-examined Detective Superintendent Wilson on whether he had contacted the Irish police about the records that they might have concerning the claimant. Mr Brownhill said that Detective Superintendent Wilson’s answer was that he, personally, had not done so but he did not know whether his subordinates had done so. Mr Brownhill submitted that the fact that the claimant had lawfully exercised his right to travel and work within the EU was not a valid reason for refusing to end the notification requirement. It was not legitimate to cast doubt on the efficacy of another state’s ability to monitor without cogent evidence.[55]On the argument at the resumed hearing on whether the determination could be validly made by Detective Superintendent Wilson as opposed to the “chief officer of police”, Mr Brownhill ultimately adopted a neutral stance. Mrs Oldham submitted that there were two bases on which it was lawful for a police officer below the rank of Chief Constable to determine the application for a review under section 91C. First, on the principle established by Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 as stated by Lord Greene MR at page 563, frequently called “the Carltona principle”. Mrs Oldham submitted that the Carltona principle applied as between a chief officer of police and an officer under his command. Mrs Fordham relied on the decision of the Divisional Court in R (Chief Constable of the West Midlands Police) v Birmingham Justices [2003] Crim LR 37.[56]Secondly, Mrs Oldham pointed out that the office of chief officer of police was one created by statute. She submitted that where the power to make the determination was placed upon the chief officer of police by statute, and this office was itself created by statute, then the issue of whether or not that officer had the power to delegate his own statutory power depended upon the relevant statute, in this case the SOA 2003. Delegation from the chief officer of police was inevitable, so that there must be a presumption that Parliament created an implied power to delegate, unless the contrary was clear from the statute itself. Mrs Oldham relied upon the statements of Lord Phillips CJ in Director of Public Prosecutions v Haw [2008] 1 WLR 379 for these propositions. She submitted that in this case it was obvious that this power would have to be delegated from the Chief Constable and that there was nothing in the SOA 2003 to indicate that this power could not be delegated.

X. The Issues for determination

[57]In our view, logically the first issue to consider is whether the statutory power to make a determination under section 91C can be delegated by the “chief officer of police” to a subordinate police officer. The second issue is: what is the nature of the appeal to the Magistrates’ Court under section 91E, because that will determine what it is that the Magistrates have to consider and decide on such an appeal. The third issue is whether the Magistrates erred in law dismissing the appeal. The fourth issue is what the consequences must be if we conclude (as we do) that the Magistrates erred.[58]Mrs Oldham told us that, as a matter of practice, all police forces in England and Wales deal with determinations pursuant to section 91C at levels below that of Chief Constable, in accordance with the SSHD’s Guidance to which we have referred above. Therefore the issue raised had, potentially, significant practical ramifications for police forces. She also noted that this objection had been taken by the claimant long after the determination had been issued and was therefore long out of time. We accept this last point but it is still important that we deal with the issue.[59]Under section 101 of the Police Act 1996, a “chief officer of police” means (amongst other things) the Chief Constable of a police force that is maintained under section 2 of that Act. Under the Police Reform and Social Responsibility Act 2011, each police force is to have a Chief Constable: section 2(1). The police force and the civilian staff of the police force are to be under the direction and control of the Chief Constable: section 2(3). The Chief Constable has the functions conferred upon him by that Act and any other enactments: section 2(4). A Chief Constable is a “corporation sole”, in other words, a legal person with a continuous existence: see schedule 2 of the 2011 Act. It follows that a Chief Constable, as a “chief officer of police”, is a creature of statute and has conferred upon him statutory powers and duties. Although the SOA 2003 does not incorporate expressly the definition of “chief officer of police” as set out in section 101 of the Police Act 1996, we accept Mrs Oldham’s submission that, by implication, all the references to a “chief officer of police” in the SOA 2003 as amended must be references to the Chief Constable of the relevant police force. It must follow that amongst the statutory duties that a Chief Constable must discharge is that of determining an application made by a “qualifying offender” under section 91C of the SOA 2003 as amended, to review the applicant’s “indefinite notification requirements”. There are a number of other statutory powers that the SOA 2003 confers upon a “chief officer of police”, which we do not need to set out here.[60]If a “qualifying offender” applies for a review of the indefinite notification requirement in his case, the review has to be made by the “relevant chief officer of police” under section 91C(1). That means, effectively, the Chief Constable of the police area for which he has responsibility and in which the qualifying offender is recorded as residing or staying according to the most recent notification given by him: see section 91A(4) and (5). If the most recent notification indicates that the offender is residing or staying at more than one address, the “relevant chief officer of police” is the one for the police area in which the offender has stayed for the longest time during the relevant period: see section 91A(5) and (6).[61]The Carltona principle is a legal doctrine, effectively created by the judges, whereby the functions of a minister of the Crown can be exercised in his or her name by departmental officials. It is not, strictly speaking, a doctrine whereby the minister can legally delegate his functions to officials. The correct analysis, according to Lord Parker CJ in the Divisional Court decision of Nelms v Roe [1970] 1 WLR 4 at 8D is that “the proper responsible officials are the alter egoof the Minister, and accordingly no question of delegation arises”. The Lord Chief Justice in that case felt grave difficulties in extending the Carltona principle to the case of the Commissioner of Metropolitan Police. Ashworth and Cantley JJ agreed with his judgment.[62]This principle has been considered and refined in a number of cases since it was first adumbrated by Lord Greene MR in 1943. In Director of Public Prosecutions v Haw [2008] 1 WLR 379, the Divisional Court had to decide whether the Metropolitan Police Commissioner was entitled to delegate to an officer of the rank of superintendent or above the function, granted to the Commissioner by section 134 of the Serious Organised Crime and Police Act 2005, of deciding whether to authorise a demonstration in the vicinity of Parliament. In the course of giving the judgment of the court, Lord Phillips of Worth Matravers CJ reviewed a number of cases in which the "Carltona principle" had been considered in relation to the exercise of powers by subordinate officials. He noted that in a number of other cases the courts had considered the question of whether discretionary statutory powers could be delegated to a subordinate of the person given the power by statute, without reference to the "Carltona principle".[63]At [33] of the Lord Chief Justice’s judgment, he stated that the Carltona principle had been used to permit the exercise, by departmental officials, of prerogative powers of the Minister which were conferred on the Minister as a result of him taking his office from the Crown. But in Haw’s case, as the Lord Chief Justice pointed out, the Commissioner’s power was a statutory one, which by section 134 of the 2005 Act was conferred upon a legal person, the Commissioner of Police of the Metropolis, which office was itself the creature of statute. In those circumstances, Lord Phillips said, at [33]: “Where a statutory power is conferred on an officer who is himself the creature of statute, whether that officer has the power to delegate must depend upon the interpretation of the relevant statute or statutes. Where the responsibilities of the office created by statute are such that delegation is inevitable, there will be an implied power to delegate. In such circumstances there will be a presumption, where additional statutory powers and duties are conferred that there is a power to delegate unless the statute conferring them expressly or by implication provides to the contrary. Such a situation is, in practice, indistinguishable from one in which the Carltona principle applies…”.[64]We respectfully adopt that analysis, which we think must, in principle, apply equally to both powers and duties of an officer whose office is created by statute. In this case the Chief Constable of Essex Police is a creature of statute. His duty to determine, under section 91C, an application under section 91B is created by statute. It is, in our view, inevitable that such a duty will be delegated, given the weight of duties and powers that fall upon Chief Constables in practice. There is nothing in the SOA 2003, as amended, either expressly or by implication, that indicates that the duty under section 91C cannot be delegated. We would accept that there must be some restriction upon the degree of delegation to which this duty can be subject. To recast Lord Phillips’ remarks in relation to the Carltona principle, at [29] of his judgment in Haw’s case, the degree of delegation of the Chief Constable’s duty must be subject to a requirement that the seniority of the police officer exercising this duty should be of an appropriate level having regard to the nature of the duty itself. But we are quite satisfied that delegation to an officer of the rank of Superintendent or above fulfils that requirement.[65]Accordingly, the validity of the determination cannot be attacked on the ground that it was undertaken by a Detective Superintendent.[66]Section 91E(1) of the SOA states baldly that a “qualifying offender may appeal against a determination of the relevant chief officer of police…”. There is no elaboration of the scope of such an appeal. In our view, the appeal can be on both the facts and the law. The magistrates will have to reconsider all the matters that are relevant to a determination which are particularised in section 91D. Both the appellant and the chief officer of police can adduce evidence, either in writing or orally, as happened in this case. In the end the magistrates have to answer the question: has the appellant satisfied them that it is not necessary for the purposes 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? We did not hear any submissions on what is meant by “satisfy” or whether there is a relevant standard of proof or what it might be. Those may be matters for another day.[67]In considering this issue, we have no doubt that the magistrates have to examine the effect that a continuation of the requirement of notification for at least a further 8 years if the determination is against the appellant (see section 91B(2)would have on appellant’s ECHR Article 8 rights, viz. to have respect for his private and family life. It is clearly axiomatic in the Supreme Court’s decision in R(F) that the requirement of notification for an indefinite period under Part 2 of the SOA 2003 constitutes an interference with the offender’s Article 8(1) rights. It is equally clear that the interference (by the legislature in creating this obligation by statute) is in accordance with the law and is, in principle, necessary in a democratic society for the prevention of disorder or crime or for the protection of the rights and freedoms of others. The only issue in R(F) was whether the fact that no review of the “indefinite period” obligation was available was proportionate to the legitimate end sought to be achieved: see [17] of Lord Phillips CJ’s judgment.[68]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 exampleZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 and H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2013] 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.

XIII. Did the magistrates err in law in dismissing the claimant’s appeal?

[69]In our view the magistrates did err in law in dismissing the appeal for the reasons which they gave. First, the magistrates did not indicate in their reasons that they had considered and applied the statutory test set out in section 91C(2), viz. that Mr Hamill had not satisfied them that it was not necessary for the purposes of protecting the public or any particular member of the public from sexual harm for him not to remain subject to the indefinite notification requirements. The test the magistrates seem to have set themselves was whether there was “an overriding requirement to monitor the risk that Mr Hamill poses to society”. That is not the statutory one. Secondly, although there is a reference to some of the specific matters set out in section 91D(2) of the magistrates’ reasons, the reference was made in the context of the evidence of Detective Superintendent Wilson. The magistrates do not say that they have considered all the factors referred to in section 91D(1) and (2), let alone go through the individual matters set out in section 91D(2)(a) to (o). To paraphrase the statement of Lord Bingham CJ in Oyston at [47], the magistrates should have focused on the statutory test as set out in section 91C(2) and they should have taken full account, as they affect the individual offender, of all the matters set out in section 91D(1) and (2). The magistrates should have set out in broad terms the matters that they, the magistrates, judged as pointing towards and against it being necessary for the purposes of protecting the public (or any particular member of the public) from sexual harm by this offender, in order to decide whether he should remain subject to the indefinite notification requirements. The magistrates should have given their reasons for striking the balance that they decided upon. We accept, of course, that there is no standard form of judgment, nor should magistrates be required to provide elaborate reasons or reach “impeccable standards of draftsmanship”, to use Lord Bingham’s phrase.[70]Thirdly, in our view it seems the magistrates wrongly founded their decision (at least in part) on the evidence of Detective Superintendent Wilson that the Essex police had had insufficient time in which to evaluate the risk that the claimant might pose because he had moved from London to Essex then to Ireland then back to Essex and had only lived there for a short time most recently. This was not a proper reason for refusing the review, nor for dismissing the appeal. The legislation allows for an offender to move house and job and it is clear that it is the duty of the authorities in the last police area where the applicant resided to co-ordinate all the information on ViSOR. It is clear from the memorandum produced to us that the information was indeed recorded on ViSOR.[71]Fourthly, insofar as it appears that the magistrates accepted the evidence of Detective Superintendent Wilson that Essex police had insufficient material from the Garda or that their standards of monitoring were insufficiently high, that too must be an error of law. The SOA 2003 permits offenders who are subject to the notification requirements to live or work out of the UK, although they must comply with notification requirements set out in section 85 of the SOA 2003 as amended and the regulations and whatever notification requirements are needed locally. The MOU between the UK and the Republic of Ireland plainly contemplates that there will be co-ordination of information between the Garda and the relevant UK police authorities on issues of notification by sex offenders who have gone to live or work in Ireland. The fact that the claimant had done so and that Essex police therefore were not monitoring him for a period of time, however long, cannot, by itself, be a good reason for deciding that the statutory test in section 91C(2) was not satisfied.[72]Fifthly, the magistrates erred in relying on the Reconviction Study and, in any event, misinterpreted it. This is a general statistical study whose findings cannot be mechanistically applied to demonstrate what an individual will or will not do, as the magistrates seemed to think it could be. As Lord Phillips PSC commented at [55] of R(F), the study threw no light “on the question of whether it was possible to identify by considering these [results] whether there were some reliable indications of offenders who did not pose a significant risk of re-offending”. And, in our view, the converse must be true. Moreover, as Lord Phillips noted at [54]- [ 55] of R(F), the Reconviction Study recommended that there be further research to look at the type of sexual offender most at risk of receiving a first reconviction for a sexual offence ten years following discharge and that this recommendation illustrated that the Study was inconclusive. He urged that caution must be taken in relying on reconviction statistics, but he also noted that they showed that 75% of the sexual offenders who had been monitored were not reconvicted.[73]Lastly, although the magistrates correctly recognised that they had to consider the Article 8 rights of the claimant and his family, they refer only to the “level of monitoring” as being proportionate. But there are no “levels” in terms of grades of what information has to be notified. Further, as we have pointed out, if the determination goes against the offender, the notification obligation must continue for at least another 8 years. The magistrates did not consider that; indeed they gave no reasons for their conclusion that “the level of monitoring” was proportionate.[74]For all these reasons the decision of the magistrates’ court must be quashed.[75]Mr Brownhill submitted that we should substitute an order, under section 91E(4), that the claimant should not remain subject to the indefinite notification requirements. There are strict limits on this court’s powers in the present situation. Section 31, subsections (5) and (5A) of the Senior Courts Act 1981 as amended by the Tribunals, Courts and Enforcement Act 2007 section 141, provide as follows: “(5) If, on an application for judicial review, the High Court quashes the decision to which the application relates, it may in addition(a) remit the matter to the court, tribunal or authority which made the decision, with a direction to reconsider the matter and reach a decision in accordance with the findings of the High Court, or(b) substitute its own decision for the decision in question. (5A) But the power conferred by subsection (5)(b) is exercisable only if (a) the decision in question was made by a court or tribunal. (b) the decision is quashed on the ground that there has been an error of law, and(c) without the error, there would have been only one decision which the court or tribunal could have reached. (a) remit the matter to the court, tribunal or authority which made the decision, with a direction to reconsider the matter and reach a decision in accordance with the findings of the High Court, or (b) substitute its own decision for the decision in question. (a) the decision in question was made by a court or tribunal. (b) the decision is quashed on the ground that there has been an error of law, and (c) without the error, there would have been only one decision which the court or tribunal could have reached.[76]We are unable to conclude in these judicial review proceedings and on the facts of this case that there was only one decision which the magistrates’ court could have reached and that it was one in favour of allowing the appeal. We have already indicated that the proper determination of an application for review under section 91C, and of an appeal to the magistrates’ court from such a determination, involves a careful weighing up of the factors set out in section 91D, including an assessment of any evidence presented to show that the offender does or does not pose a risk of sexual harm to members of the public. This court rarely hears oral evidence and this is not one of those rare cases where it should. Moreover, we do not have a transcript of the evidence called in the magistrates’ court.[77]A quick examination of the matters that the chief officer of police and, as we have held, the magistrates on appeal, must take into account under section 91D(2) demonstrates why it is impossible for this court to say that the only decision that the magistrates could have come to if they had addressed all relevant issues was one allowing the appeal. We follow the subparagraphs of that sub-section:(a) Seriousness: although this was a single offence, it was rape, with a six year sentence being imposed;(b) The offence was committed 23 years ago, on 8 February 1991;(c) The claimant was not convicted of any notification offences under the (now repealed) Sex Offenders Act 1997;(d) The claimant was cautioned in 2006 for failing to notify his intention to travel to Ireland; with this proviso, he has not been convicted of any notification offences under Part 2 of the SOA 2003; (e) and (f) The claimant was born on 2 August 1967; he was therefore 23 at the time of the offence; 38 at the time of the first “qualifying date” and 45 when his application to be released from the indefinite notification requirements was refused. Subject to the outcome of his appeal and this litigation he will be unable to make a further application until 2021, by which time he will be 53 and thirty years will have elapsed since the offence; (g) The victim of the rape was 16, seven years younger than the claimant was at the time of the offence; (h) The claimant has been assessed as having a low risk of reconviction, although in the opinion of Detective Superintendent Wilson who took the decision under challenge “this is not a direct assessment of the risk of harm he presents to the public”; (i) The police have decided not to attempt to trace the victim to obtain any submission or evidence from her, in our view understandably after all this time; (j), (k) and (l) The claimant has no other convictions or cautions in the UK or elsewhere for offences listed in Schedule 3 to the SOA 2003; (m), (n) and (o) The court must then consider, as Superintendent Wilson on behalf of the Chief Constable had to consider, any other submission or evidence that the claimant does or does not pose a risk of sexual harm, and any other relevant matters the chief officer of police considered to be appropriate.[78]In those circumstances we have concluded that the decision of the magistrates must be quashed and the case must be remitted to the magistrates’ court for the appeal to be reheard before a freshly constituted court.[79]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. 80. Appendix One Amendment of the Sexual Offences Act 2003 3. After section 91 insert— 91A Review of indefinite notification requirements: qualifying relevant offender(1) A qualifying relevant offender may apply to the relevant chief officer of police for a determination that the qualifying relevant offender is no longer subject to the indefinite notification requirements (“an application for review”).(2) A qualifying relevant offender means a relevant offender who, on the date on which he makes an application for review, is— (a) subject to the indefinite notification requirements; and (b) not subject to a sexual offences prevention order under section 104(1) or an interim sexual offences prevention order under section 109(3).(3) The “indefinite notification requirements” mean the notification requirements of this Part for an indefinite period by virtue of— (a) section 80(1); (b) section 81(1); or (c) a notification order made under section 97(5).(4) In this Part, the “relevant chief officer of police” means, subject to subsection (5), the chief officer of police for the police area in which a qualifying relevant offender is recorded as residing or staying in the most recent notification given by him under section 84(1) or 85(1).(5) Subsection (6) applies if a qualifying relevant offender is recorded as residing or staying at more than one address in the most recent notification given by him under section 84(1) or 85(1).(6) If this subsection applies, the “relevant chief officer of police” means the chief officer of police for the police area in which, during the relevant period, the qualifying relevant offender has resided or stayed on a number of days which equals or exceeds the number of days on which he has resided or stayed in any other police area.(7) In subsection (6), “the relevant period” means the period of 12 months ending on the day on which the qualifying relevant offender makes an application for review. 91B Review of indefinite notification requirements: application for review and qualifying dates (1) An application for review must be in writing and may be made on or after the qualifying date or, as the case may be, the further qualifying date. (2) Subject to subsection (7), the qualifying date is— (a) where the qualifying relevant offender was 18 or over on the relevant date, the day after the end of the 15 year period beginning with the day on which the qualifying relevant offender gives the relevant notification; or (b) where the qualifying relevant offender was under 18 on the relevant date, the day after the end of the 8 year period beginning with the day on which the qualifying relevant offender gives the relevant notification. (3) Subject to subsections (4) to (6), the further qualifying date is the day after the end of the 8 year period beginning with the day on which the relevant chief officer of police makes a determination under section 91C to require a qualifying relevant offender to remain subject to the indefinite notification requirements. (4) Subsection (5) applies if the relevant chief officer of police, when making a determination under section 91C to require a qualifying relevant offender to remain subject to the indefinite notification requirements, considers that the risk of sexual harm posed by a qualifying relevant offender is sufficient to justify a continuation of those requirements after the end of the 8 year period beginning with the day on which the determination is made. (5) If this subsection applies, the relevant chief officer of police may make a determination to require a qualifying relevant offender to remain subject to the indefinite notification requirements for a period which may be no longer than the 15 year period beginning with the day on which the determination is made. (6) If subsection (5) applies, the further qualifying date is the day after the end of the period determined under that subsection. (7) The qualifying date must not be earlier than the expiry of the fixed period specified in a notification continuation order made in relation to a qualifying relevant offender in accordance with sections 88A to 88I(1).(8) The relevant chief officer of police within 14 days of receipt of an application for review— (a) must give an acknowledgment of receipt of the application to the qualifying relevant offender, and (b) may notify a responsible body that the application has been made.(9) Where a responsible body is notified of the application for review under subsection (8)(b) and holds information which it considers to be relevant to the application, the responsible body must give such information to the relevant chief officer of police within 28 days of receipt of the notification.(10) In this section “the relevant notification” means the first notification which the relevant offender gives under section 83, 84 or 85 when he is first released after— (a) being remanded in or committed to custody by an order of a court in relation to the conviction for the offence giving rise to the indefinite notification requirements; (b) serving a sentence of imprisonment or a term of service detention in relation to that conviction; (c) being detained in hospital in relation to that conviction.(11) For the purposes of this Part— (a) “responsible body” means— i. the probation trust for any area that includes any part of the police area concerned, ii. in relation to any part of the police area concerned for which there is no probation trust, each provider of probation services which has been identified as a relevant provider of probation services for the purposes of section 325 of the Criminal Justice Act 2003(2) by arrangements under section 3 of the Offender Management Act 2007(3), iii. the Minister of the Crown exercising functions in relation to prisons (and for this purpose “prison” has the same meaning as in the Prison Act 1952(4)), and iv. each body mentioned in section 325(6) of the Criminal Justice Act 2003, but as if the references in that subsection to the relevant area were references to the police area concerned; (b) “risk of sexual harm” means a risk of physical or psychological harm to the public in the United Kingdom or any particular members of the public caused by the qualifying relevant offender committing one or more of the offences listed in Schedule 3. 91C Review of indefinite notification requirements: determination of application for review (1) The relevant chief officer of police must, within 6 weeks of the latest date on which any body to which a notification has been given under section 91B(8)(b) may give information under section 91B(9)— (a) determine the application for review, and (b) give notice of the determination to the qualifying relevant offender. (2) 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 qualifying relevant offender to remain subject to the indefinite notification requirements. (3) If the relevant chief officer of police determines under this section that the qualifying relevant offender should remain subject to the indefinite notification requirements, the notice of the determination must— (a) contain a statement of reasons for the determination, and (b) inform the qualifying relevant offender that he may appeal the determination in accordance with section 91E. (4) If the relevant chief officer of police determines under this section that a qualifying relevant offender should not remain subject to the indefinite notification requirements, the qualifying relevant offender ceases to be subject to the indefinite notification requirements on the date of receipt of the notice of determination. (5) The Secretary of State may by order amend the period in subsection (1). 91D Review of indefinite notification requirements: factors applying to determination under section 91C (1) In determining an application for review under section 91C, the relevant chief officer of police must— (a) have regard to information (if any) received from a responsible body; (b) 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; and (c) take into account the matters listed in subsection (2). (2) The matters are— (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(10); (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 (a); (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.” (3) In this section, a reference to a conviction, finding or caution for an offence committed in a country outside the United Kingdom means a conviction, finding or caution for an act which— (a) constituted an offence under the law in force in the country concerned, and (b) would have constituted an offence listed in Schedule 3 or Schedule 5 if it had been done in any part of the United Kingdom. Amendment of the Sexual Offences Act 2003 (a) subject to the indefinite notification requirements; and (b) not subject to a sexual offences prevention order under section 104(1) or an interim sexual offences prevention order under section 109(3). (a) section 80(1); (b) section 81(1); or (c) a notification order made under section 97(5). (a) where the qualifying relevant offender was 18 or over on the relevant date, the day after the end of the 15 year period beginning with the day on which the qualifying relevant offender gives the relevant notification; or (b) where the qualifying relevant offender was under 18 on the relevant date, the day after the end of the 8 year period beginning with the day on which the qualifying relevant offender gives the relevant notification. (a) must give an acknowledgment of receipt of the application to the qualifying relevant offender, and (b) may notify a responsible body that the application has been made. (a) being remanded in or committed to custody by an order of a court in relation to the conviction for the offence giving rise to the indefinite notification requirements; (b) serving a sentence of imprisonment or a term of service detention in relation to that conviction; (c) being detained in hospital in relation to that conviction. (a) “responsible body” means— i. the probation trust for any area that includes any part of the police area concerned, ii. in relation to any part of the police area concerned for which there is no probation trust, each provider of probation services which has been identified as a relevant provider of probation services for the purposes of section 325 of the Criminal Justice Act 2003(2) by arrangements under section 3 of the Offender Management Act 2007(3), iii. the Minister of the Crown exercising functions in relation to prisons (and for this purpose “prison” has the same meaning as in the Prison Act 1952(4)), and iv. each body mentioned in section 325(6) of the Criminal Justice Act 2003, but as if the references in that subsection to the relevant area were references to the police area concerned; (b) “risk of sexual harm” means a risk of physical or psychological harm to the public in the United Kingdom or any particular members of the public caused by the qualifying relevant offender committing one or more of the offences listed in Schedule 3. (a) determine the application for review, and (b) give notice of the determination to the qualifying relevant offender. (a) contain a statement of reasons for the determination, and (b) inform the qualifying relevant offender that he may appeal the determination in accordance with section 91E. (a) have regard to information (if any) received from a responsible body; (b) 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; and (c) take into account the matters listed in subsection (2). (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(10); (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 (a); (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.” (a) constituted an offence under the law in force in the country concerned, and (b) would have constituted an offence listed in Schedule 3 or Schedule 5 if it had been done in any part of the United Kingdom. Appendix Two – Magistrates’ Reasons “We have listened carefully to the arguments placed before us today by the appellant Mr Hamill and the respondent Essex Police. We have read considerable amounts of documentation provided for us in the bundle, including the findings within the 21 year reconviction study. We have noted the legislation with regard to the Sexual Offences Act 2003 on which this appeal is based. Mr Hamill states that the original offence took place a long time ago. His personal circumstances have changed in that he is now in a solid relationship and has a family of four daughters. He states that the notification requirements are intrusive and he fears his young family will discover his past. Essex Police have considered the application at various levels within the force and we heard evidence from Detective Superintendent Ewan Wilson as to his decision to continue the notification requirement. He states the reasons to continue the notification requirement are as a result of the whole picture of Mr Hamill’s history. These specifically include (at p105-108): the seriousness of the offence, the period of time that has elapsed since that offence, the level of compliance with the notification requirement, the assessment of risk. He states that he considers that due to disjointed monitoring by a number of police forces in Essex, London and Ireland, Essex Police has had insufficient length of time to monitor Mr. Hamill. This is substantiated by the 21 year reconviction study which suggested that the risk of reconviction increases with the passage of time. We find that due to the nature and seriousness of the original offence and the fact it was opportunistic and random in nature, coupled with the fact that the risk of reconviction increases over the length of time, that there is an overriding requirement to monitor the risk that Mr. Hamill poses to society. We have considered the right to family life of Mr. Hamill and his family under Article 8 of the HRA. We consider that the level of monitoring is proportionate considering all the circumstances. Therefore the appeal is dismissed.”

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