NE, R (on the application of) v Birmingham Magistrates Court & Anor [2015] EWHC 688 (Admin)

Case No CO/2942/2014

[2015] EWHC 688 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20/03/2015

Before

THE PRESIDENT OF THE QUEEN’S BENCH DIVISION

(SIR BRIAN LEVESON)

MR JUSTICE WALKER

Between

Regina on the application of NEClaimant

And Between :

Between

Regina on the application of NMClaimant

Mr Matthew Stanbury (instructed by QualitySolicitors Jordans and Irwin Mitchell)

for NE and NM respectively

for The Defendant did not appear and was not represented

Ms Alison Hewitt (instructed by Staffordshire and West Midlands Police, Joint Legal Services) for Interested Party

Hearing Hearing date: 4 March 2015

Judgment

Sir Brian Leveson P :

[1]As originally drafted, Part 2 of the Sexual Offences Act 2003 (“the 2003 Act”), replacing the Sex Offenders Act 1997, provided that those sentenced to terms of custody of 30 months or more were required indefinitely, that is to say for the remainder of their lives, to comply with the notification provisions set out in ss. 83-86 of the 2003 Act so as to permit effective monitoring of their whereabouts by the police. In R (F)(a child) v Secretary of State for the Home Department, R (Thompson) v Secretary of State for the Home Department

[2011] 1 AC 331

, however, the Supreme Court determined that the lack of any mechanism ever to challenge the continued justification for the order constituted a disproportionate interference with the right to respect for private and family life as guaranteed by

Article 8 of the European Convention on Human Rights

(“ECHR”). The Supreme Court made it clear that the legislature could provide a suitably high threshold for any review (see [57] per Lord Phillips of Worth Matravers) but in default of any provision for individual review, it was appropriate to grant a declaration of incompatibility pursuant to s. 4 of the Human Rights Act 1998.

[2]The result was that the Sexual Offences Act 2003 (Remedial) Order 2012 (SI 2012 No 1883) inserted into the 2003 Act new provisions as ss. 91A-91F which created a mechanism whereby, if certain preconditions were met, an offender subject to indefinite notification could apply to the relevant chief officer of police for a review. If successful, the notification requirements lapsed; an adverse decision could be subject to appeal to the Magistrates’ Court within 21 days of its promulgation (see s. 91E). It is clear from the introduction to the Order, made pursuant to s. 10(2) and paras. 1(1)(a), (c) and (d), (2) and (3) of Schedule 2 to the Human Rights Act 1998 that it was intended to make such amendments to the 2003 Act as the Secretary of State considered “necessary to remove the incompatibility”.

[3]The claimants in these applications (identified as NE and NM) are two men affected by the indefinite notice provisions as originally enacted following their convictions for serious sexual offences in 1997. Following the change of the law, both independently applied to the Chief Constable of West Midlands to review the notification requirements. Both were refused and both appealed to the Birmingham Magistrates pursuant to s. 91E of the 2003 Act. Following separate hearings, both appeals were dismissed: in relation to NE, this was on 25 March 2014 and, in relation to NM, it was 19 May 2014. Each now seeks judicial review of the decision affecting him, effectively on the grounds that the reasons provided by the court revealed (in my words) errors of approach and were inadequate or misconceived. It is a coincidence that both were convicted of offences arising out of the same incident but it has been convenient to hear them together. Before embarking on the merits, however, one preliminary matter must be mentioned.

Anonymity

[4]Although neither NE nor NM sought or obtained anonymity for their hearings before the magistrates, both applied for anonymity in these proceedings on the basis that their sexual offending was, in the case of NE when he was a child (aged 13) and, as regards NM, was when he was a young person (aged 15). Neither is now entitled to anonymity pursuant to s. 39 of the Children and Young Persons Act 1933: see JC & RT v Central Criminal Court

[2014] EWCA Civ 1777

dismissing an appeal from this court

[2014] 2 Cr App R 13

[2014] EWHC 1041 (Admin)

. Nevertheless it is argued that both are entitled to anonymity orders in order to fulfil the state’s positive obligations under

Article 8(1) of the ECHR

to protect their reputations as an element of private life.

[5]Mr Matthew Stanbury, for the claimants, recognises that

Article 10 of the ECHR

(dealing with freedom of expression) is also engaged but submits that this right is not “strong” on the basis that there has been no press interest to date although this might be because the nature of these proceedings has not been appreciated by the press. In any event, it is not suggested that the proceedings should not be reported but merely that the names of the claimants should be withheld.

[6]The reason is easy to understand. The convictions are undoubtedly very old and represent offending by the claimants when they were adolescents. Both men (now adult) have sought to live down the consequences of the convictions for many years and, whatever the merits of the applications, are entitled to pursue the issue of whether it remains necessary for the purposes of protecting the public from sexual harm for them (or either) to remain subject to the indefinite notification provisions. If their names were published, there is a real risk that the fact of this offending (albeit so many years ago) would now impact on them, their work and their families. At the level of principle, this would act as a very real disincentive to pursuing the right to argue that they should no longer be subject to the notification provisions, notwithstanding that Parliament has specifically legislated to permit them to do so.

[7]For the Chief Constable, as an interested party, Miss Alison Hewitt does not advance any contrary argument and it is not suggested that the court does not have the power so to

[8]The interlocutory anonymity order lasted only until the hearing. At the hearing Mr Stanbury made an oral application for it to continue. Notice was not given to the press of this application and I am concerned that there has been no opportunity to argue the contrary case. In R v Jolleys ex parte Press Association

[2013] EWCA Crim 1135

, a complaint that an order pursuant to s. 39 of the Children and Young Persons Act 1933 had been made without notice to the press was held justified. In the circumstances, we made an order at the hearing which continued the interlocutory anonymity order, but only until hand-down of judgment. We indicated to counsel that we envisaged that at hand-down we would make a further order to continue the interlocutory anonymity order indefinitely, subject to a provision giving liberty to the press, within 7 days thereafter, to apply to remove the prohibition on reporting; if an application is made, the order will continue until that issue can be heard and determined.

[9]It is also important to emphasise that the only effect of the interlocutory anonymity order as continued is that nothing may be reported of these judicial review proceedings that might identify the claimants as being persons convicted of sexual offences. There is no prohibition upon the press taking an interest in those who have committed sexual offences, however old or, indeed, in the operation of the notification provisions. Further, the restrictions on reporting do not apply to the fact that these judicial review applications have been brought by claimants who complain of decisions by Birmingham magistrates dismissing appeals from the chief constable’s refusal to vary their reporting requirements. Nor do they apply to the arguments and the reasons for the decision. Whether the publication of any material gleaned as a consequence of this hearing would mean that the publisher has acted in breach of any other obligations imposed upon them is not for this court to determine.

The Statutory Scheme

[10]By s. 91A of the 2003 Act a “qualifying relevant offender” (that is to say an offender subject to the indefinite notification requirements and not subject to either a sexual offences prevention order or an interim sexual offences prevention order made) can apply to the chief officer of police for the police area in which he is recorded as residing or staying in the most recent notification that was given by him. If over 18 when the notification requirement commenced, the offender may only apply for a review once he has completed 15 years of the notification requirement; if (as in these cases), he was under 18, 8 years must elapse.

[11]If the application fails, so that the notification provisions continue, no further application can be made for a period of at least 8 years, which can be extended by the chief officer up to a total of 15 years after the determination: see s. 91B(4)-(6). The test for imposing the requirement beyond the minimum further 8 years is that the chief officer 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 s. 91B(11)(b) as “a risk of physical or psychological harm to the public ... or any particular members of the public caused by the qualifying relevant offender committing one or more of the offences listed in Schedule 3”.

[12]Central to the application and to these appeals is the test to be applied by the chief officer (or, on his behalf, by an appropriate delegate). It is set out in s. 91C(2) in these terms:

“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.”

[13]In reaching his decision, s. 91D(1) requires the chief officer to have regard to any information received from “a responsible body” (i.e. the relevant probation trust, a Minister exercising functions in relation to prisons and bodies mentioned in s. 325(6) of the Criminal Justice Act 2003 concerned with assessing risk), consider the risk of sexual harm posed by the offender “and the effect of a continuation of the indefinite notification requirements on the offender” and “take into account” the matters listed in s. 91D(2). These 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;

(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.”

[14]Further assistance is provided by s. 91F which provides that the Secretary of State “must” issue guidance to relevant chief officers of police in relation to the determination of applications. That guidance includes reference to the relevant responsible bodies and appropriate risk assessment tools. The guidance goes on (at para. 23):

“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.”

[15]The scheme and these provisions have been analysed by this court in R (Hamill) v Chelmsford Magistrates Court

[2014] EWHC 2799

although the main part of the hearing was conducted in the absence of any submissions either from the court or the relevant Chief Constable. The arguments in this case have sought to build upon and, in one regard, to modify the approach identified in that case.

[16]The first general question raised in these appeals (but specifically not addressed in Hamill: see [25]) concerned the burden and standard of proof. Mr Stanbury submitted that these concepts had no place in these applications which depended on judgment rather than fact finding: the chief officer should start with a blank sheet and determine whether the evidence placed before him satisfied the test. Miss Hewitt, on the other hand, argued that the burden of establishing that he should no longer be subject to the notification requirements rested with the offender. For my part, I have no doubt that Miss Hewitt is right: s. 91C(2) provides, in terms, that the offender “must satisfy the relevant chief officer of police”: it is thus up to him to do so. Further, to such extent as the standard of proof is relevant to any issue, it will be on the balance of probabilities. Having said that, however, the hurdle is high: it is that “it is not necessary for the purpose of protecting the public or any particular members of the public from sexual harm”.

[17]The second general issue concerns the part, if any, played by

Article 8 of the ECHR

in the analysis to be performed by the chief officer of police and the court. In R (F)(a child) v Secretary of State for the Home Department, R( Thompson) v Secretary of State for the Home Department (supra), the Supreme Court held that it was the absence of review that offended Article 8 and not the onerous nature of the notification requirements. Lord Phillips of Worth Matravers put the matter (at [41]) in this way:

“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.”

[18]He clearly accepted (at [52]) the threshold identified in the Divisional Court and Court of Appeal that there were “some ... who could ‘clearly demonstrate’ that they presented no risk of reoffending or of whom ‘it can confidently be said that there was no risk’ that they would commit a sexual offence”. He went on (at [57]) that it was open to the legislature “to impose an appropriately high threshold for review”.

[19]Nevertheless, Mr Stanbury argues that not only should there be no burden on the applicant but that it is appropriate to insert an Article 8 proportionality analysis into the test identified in s. 91C(2) of the 2003 Act because s. 91D(1)(b) require the chief officer of police to “consider the risk of sexual harm posed ... and the effect of a continuation of the indefinite notification requirements”. He cites in support of this proposition the observations of Aikens LJ in Hamill (at [68]) in these terms:

“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 [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.”

[20]Miss Hewitt argues that Article 8 has required the review but there is no further place for an argument as to proportionality when applying the test in s. 91C(2) which requires the chief officer (and, in due course, the magistrates) to consider whether “it is not necessary for the purpose of protecting the public ... from sexual harm for the ... offender to remain subject to the indefinite notification requirements”. As for s. 91D(1)(b), this merely reflects the language of the test in s. 91C(2).

[21]With respect to Aikens LJ (before whom no contrary argument was advanced), I do not accept that s. 91(D)(1)(b) imports a proportionality test which was neither suggested by the Supreme Court nor identified within the Order which utilised the Human Rights Act 1998 to modify the law for the purposes of achieving compatibility as required by the Supreme Court. Furthermore, the wording is not to require the chief officer to consider the risk of sexual harm posed by the offender together with the effect on the offender of a continuation of the indefinite notification requirements but, rather, the effect of continuation of the requirements for the purposes of s. 91C.

[22]This construction is supported by a consideration of the possible circumstances in which this issue might arise. Take the case of an offender for whom it is legitimately considered that there remains a risk of his causing sexual harm unless appropriately monitored (i.e. by compliance with the notification provisions). It is, in my view, unarguable that a different conclusion would be reached in relation to such an offender for whom the continuation of the requirements of notification posed little additional burden, (perhaps because the offender was unemployed or had no children) to that in relation to an offender for whom the burden was very greatly increased (because of the risk, raised in one of these cases, of information seeping out and affecting employment, family or both). In both cases, if there is a risk of causing sexual harm, the high threshold test is not met and the notification provisions must remain in place. It might be appropriate to take account of the impact on private life when deciding where to fix the point at which a further application can be made (on the spectrum between 8 and 15 years) but the line to be drawn between those who must continue to be subject to the notification provisions and those who are relieved of that responsibility cannot depend on the impact of notification on private and family life; the test remains necessity for the purpose of protecting the public or any particular members of the public from sexual harm.

The Index Offences

[23]On 13 June 1997, in the Crown Court at Birmingham, before the Recorder of Birmingham, NE (then aged 14 years) and NM (then aged 16 years) were each sentenced to five years’ detention pursuant to the provisions of s. 53(2) of the Children and Young Persons Act 1933. NE (described by the judge as the ringleader) had been convicted of raping one girl, kidnapping and raping another girl and kidnapping a third. NM was convicted of one offence of rape and two offences of kidnap; he also fell to be sentenced for one offence of indecent assault.

[24]The convictions arose out of an incident on 7 August 1996 when two 13 year old girls were abducted by NE and NM from a street in the vicinity of a youth club; they were taken to a block of flats where they were raped and indecently assaulted by a group of four youths. The incident led to the prosecution of no fewer than nine teenagers for various offences.

[25]Of the nine teenagers who fell to be sentenced, the judge observed that had the most serious offenders (including NE and NM) been fully adult, the court would have been thinking in terms of ten years imprisonment. He considered NE (although only 13 when the offences were committed) to have played a leading role with qualities of leadership. NM, two years older and much nearer to adulthood, bore “a greater blame” because he ought to have had greater control of himself albeit “marginally less of a ringleader”. In the circumstances, no distinction was drawn between them. It is unnecessary to rehearse the detail of their offending but sufficient to note that the Recorder observed:

“[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.”

[26]Both served the sentences imposed upon them, being conditionally released from detention in December 1999 and January 2000 respectively. They accepted that the consequence of their convictions was an indefinite requirement to comply with the notification requirements then contained in the Sex Offenders Act 1997 (now replaced by the 2003 Act). Their lives then followed different paths and it is necessary to deal separately with the years that have followed, their applications to the Chief Constable of West Midlands and then, by way of appeal, to the Birmingham Magistrates’ Court. NE

[27]NE was released from custody in 1999, having undertaken a course specific to his offending behaviour. In his application, he said that he was now a different person, with respect for others. He had committed no offences of a similar nature in the 17 years that had passed and did not believe that he posed a risk to anyone. Over the years, he had been self employed in the motor trade but had also been employed when it was available and, by the end of 2013, was training for what appears to be a heavy goods vehicle licence. He has a settled address, a settled relationship and a very young child.

[28]The police point to his criminal record with 9 appearances after his 5 year sentence for offences including possession of a CS gas canister, two offences related to disorderly behaviour (one of which involved racially aggravated criminal damage), possession of cannabis and (in 2011) production of cannabis for which last offence he received 6 months imprisonment suspended for 18 months. In 2014, he was due to appear before the Crown Court for sentence in relation to the supply of controlled drugs (for which we were told he also received a suspended sentence). Finally, relevant to the notification provisions, in 2001, he had also once been convicted of failing to notify a change of address for which he was conditionally discharged; he says that this conviction flowed from a misunderstanding when he was 17/18 spending occasional nights away at home and was clearly not considered serious by the court.

[29]The police also considered 24 intelligence logs relating to drug activity, involvement with others connected with criminality and linking him to gangs; it was reported that he had been arrested for 10 offences ranging in gravity from attempted murder to public order offences (none said to involve allegations of sexual offending): whilst some had been the subject of no further action, it was clear to the Detective Inspector reviewing the case that some had not proceeded “because of issues with victims”. The officer noted the gravity of the index offences and commented:

“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.”

[30]NE challenged parts of this analysis and, in particular, challenged the use of Risk Matrix 2000 which is a static risk assessment tool which is not suitable for those whose sexual offending was only committed before the age of 16 years. The officer explained its completion in this way:

“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.”

[31]It was recommended that the application made by NE should be refused; that view was endorsed both by Superintendant Cowley and the Temporary Deputy Chief Constable. The reasons for the refusal, with an application for further review set no earlier than 8 years following this determination on 12 November 2013, were:

“– 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).”

[32]NE appealed to the magistrates’ court. Statements were lodged and documentary material submitted (including the intelligence logs). We were told that oral evidence was given and subject to cross examination. By way of example, it is said that the fact that prison records have been destroyed meant that it was recognised that confirmation of his offence related work was not available; it was also argued that no, or no sufficient, allowance has been made for his age at the time of the offence, the very limited effect of the breach of licence (itself over 12 years earlier) and his current circumstances.

[33]As for the Risk Matrix RM2000, in a statement for this court, Det. Insp. Thursfield explained that his decision was not based on the Risk Matrix; the criticisms of its use were made before the magistrates and “fully accepted”. As to this last point, Miss Hewitt explained that, viewed correctly, its purpose was to identify how NE was being managed and, in any event, was not relied on by Superintendant Cowley.

[34]Unfortunately, there is no record of any of the evidence before the magistrates or the extent of the analysis of the issues of fact and law. All that is before the court are the statements to which we have referred (whether or not given to the magistrates) and the record in the Memorandum of the Register at Birmingham Magistrates’ Court for 26 March 2014 which is in these terms:

“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.”

[35]It is asserted in the Statement of Grounds in support of this application that the justices accepted and adopted in full the reasons of the Chief Constable; it is not suggested by Miss Hewitt that this assertion is inaccurate.

[36]Mr Stanbury submits that although this brief summary purports to provide reasons for the decision, in reality, it does not provide a reasoned decision which identifies the test applied, the interplay between the facts and the statutory factors and the way in which the balance was struck. He goes on that, if by the phrase ‘Assessment of Risk’ it is intended to rely on the RM 2000, this was a material error given that it is not intended to apply in cases such as that of NE. For my part, I simply do not know whether the magistrates understood the careful way in which the inspector sought to use the assessment tool or the way in which it impacted on the decision: assessing risk is exactly what was required but how the task was undertaken is unclear. Neither can I discern how the court addressed the factors set out in s. 91D(2). Other criticisms are also made of the approach but in the absence of sufficient reasons it is impossible to say whether the magistrates have approached their responsibilities in accordance with the statutory provisions.

[37]This case is not the paradigm of an offender who committed a very serious sexual offence many years ago and has since led a blameless life without any cause for concern. Similarly it is entirely possible to conclude that the commission of crime which is not sexual in nature remains relevant to the risk of committing crime that is. As Aikens LJ made clear in Hamill (at [75]-[76]) on quashing a decision, s. 31(5) and (5A) Senior Courts Act 1981 as amended by s. 141 Tribunals, Courts and Enforcement Act 2007 requires a decision to be remitted for reconsideration unless it permits of only one decision. In my judgment, even if we had had a full note of the evidence before the magistrates (which we do not), this is not such a case.

[38]In the circumstances, I would quash the decision in relation to NE and remit it to the magistrates to be reheard. In that regard, I would echo the observations of Aikens LJ in Hamill (at [79]) as equally applicable in this case as in that:

“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.”

[39]The position of NM is somewhat different. At the time of the offence, he described himself as young, foolish and having made wrong choices, using the time in custody to reflect upon his mistakes and “sensibly to rehabilitate”. He said that, in the years following release in January 2000, the notification requirements had caused him considerable difficulties to get his life back on track and that he “would not jeopardise [his] liberty by breaking the law in the future”. He was assessed as not suitable for the Sex Offender’s Treatment Programme on the grounds that he was appealing his conviction; after the appeal was dismissed there was insufficient time to do so and it was not a condition of his licence. He did, however, complete Victim Awareness and Enhanced Thinking Skills courses.

[40]NM says that he has demonstrated that he was able to lead a law abiding life and had only once been arrested for breach of the licence following an oversight in relation to change of address: this explanation was accepted and he was cautioned. He has stable accommodation but his current licence and requirement (including the obligation to disclose his previous convictions) has meant that he is currently unemployed. His probation officer reported that he had not demonstrated pro-criminal attitudes or attitudes of a sexist or discriminatory nature, and had not been convicted of a further offence of a sexual nature. Risk assessment tools suggested low risk of re-offending with low risk of harm. His mother and (legally qualified) cousin wrote in support of his application.

[41]The police point to a very different side of NM in the form of his criminal record. Thus, within two months of his release, he committed an offence of violent disorder which led to his return to custody for one year for breach of licence, followed by 3 years’ custody in a young offender institution for the offence. Having received suspended sentences of imprisonment in 2007 for three separate offences of driving while disqualified (along with offences of assaulting and resisting police officers and failing to surrender to custody) in the same year he was sentenced to 6 years’ imprisonment for three offences of possession of a drug of Class A with intent to supply. In 2012, he was convicted of being found on enclosed premises for an unlawful purpose and in 2013 was cautioned for possessing material which bore a false trade mark (counterfeit DVDs).

[42]It is clear from police records that P.C. Lewis recommended that NM should not remain on the register; Det. Insp. Thursfield endorsed that view on the basis that he had not been arrested or linked by intelligence to criminality creating a risk of sexual harm. Superintendant Cowley, however, disagreed and recommended that he remain on the register. She noted the testimonials and stable accommodation, but pointed to the circumstances of the original offending (gang linked), the absence of offence focused work and his subsequent convictions (along with intelligence that he continued to associate with gang members in relation to drugs); she also noted the caution for breach of the notification requirements. She observed that “drugs use would be a well evidenced trigger factor for sexual offending” and, highlighting para. 23 of the Guidance, observed that there was no clear indication that there had been a change in a positive direction with protective factors in place: there was no mention of RM 2000 in her memorandum. The Temporary Assistant Chief Constable (as delegate of the Chief Constable) agreed with Superintendant Cowley.

[43]In his appeal to the magistrates, NM submitted a document prepared by his solicitors which went through the features set out in s. 91D(2) of the 2003 Act arguing that unrelated convictions did not increase the risk that he would commit sexual offences; further, the notification offence did not evidence a significant risk. It challenged the basis for a risk assessment of ‘High’ and submitted that the age of NM when the offence was committed and the lapse of time should lead to the conclusion that the risk of sexual offending could be discounted to the extent that the continuance of the notification requirements was unjustified.

[44]A detailed statement was also submitted by Superintendant Cowley who identified the facts set out above and also went through the factors set out in s. 91D(2) of the 2003 Act, making it clear that she had taken into account the views expressed by NM’s probation officer. Although not mentioned in her memorandum to the Assistant Chief Constable, she referred to RM2000 as “a tool which can assist in making assessments as to risk”, it being clearly recognised from the document that it was not suitable for those who had not committed a sexual offence after the age of 16. In fact, the analysis in the document does little more than group together what might be considered, in any event, to be obvious risk factors.

[45]Once again, there was an oral hearing and evidence was given touching not only the above features but also the Guidance issued by the Secretary of State. In the event, the appeal was “not upheld”. The reasons provided by the magistrates were reduced into note form and are as follows:

“- 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.” - 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.”

[46]Mr Stanbury argues that these reasons are insufficient on the grounds that they do not show that the magistrates took account of the real points in NM’s favour and, in particular, his age at the time of offending and the lack of evidence of risk of sexual harm. This is to be combined with a criticism that the magistrates focused on reduction of risk whereas s. 91C(2) does not require a demonstration of reduction of risk: para. 23 of the Guidance merely identifies one example where the decision maker might conclude that registration is not required, rather than being necessary criteria for de-registration.

[47]The history was clearly before the magistrates and, in my judgment, they did not need to rehearse NM’s age or the length of time that had elapsed before the application. They were clearly focused on risk and specifically noted the difference of opinion between probation and PC Lucas on the one hand and the senior police officers on the other. As for reduction of risk, it is beyond argument that when the offences were committed, NM demonstrated far more than a risk of sexual offending so that it was critical that he was able to show that he had matured and taken steps to demonstrate that the risk in place when he offended had been reduced. To suggest otherwise is to misunderstand the nature of the exercise; as Miss Hewitt submits, the underlying assumption of the scheme (making notification requirements automatic following conviction for serious sexual offences) is that such offenders pose a level of risk which must be monitored. Thus, it is axiomatic that if the question whether it remains necessary for the offender to be subject to such requirements is to be answered in the negative, a reduction of risk must be demonstrated.

[48]The issue of risk also manifested itself in the reasons dealing with subsequent offending. The magistrates were clearly concerned with the nature and gravity of NM’s criminality subsequent to the index offences and, in particular, the ongoing and blatant disregard for the law: this concern was entirely justifiable. Offences which justify 3 years’ imprisonment and 6 years’ imprisonment for violence and the sale of Class A drugs can legitimately justify the inference that the disregard extends to people (being the victims of violence or those to whom the drugs are sold). Once NM has failed adequately to address that concern, it is entirely appropriate to conclude that the disregard could extend to sexual matters. Although expressed in different language, that is the interpretation that I place on the magistrates’ reasoning. By way of additional comment, it is worth adding that NM’s pattern of offending might be said to undermine the way in which he described himself in his application.

[49]Mr Stanbury made the same point in relation to RM 2000 as advanced in the case of NE. In fact, the magistrates do not mention RM 2000 Neither do I accept that the reference to the assessment tool used by the prison and probation services, OASys, as not being as specifically focussed on sexual offenders can be read as meaning that reliance has been placed on RM 2000, particularly given the very clear written evidence adduced on behalf of NM made the point (conceded in NE and doubtless also in NM) that:

“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).”

[50]Although the note of the reasons is not, perhaps, as clear as it could be (and, for my part, I would again repeat the observations of Aikens LJ in Hamill (at [79]) that these difficult cases might be better placed before a District Judge used to providing a reserved judgment in writing), I am satisfied that it is adequately reasoned and its contents sufficient to demonstrate that the magistrates considered the correct issues and reached conclusions entirely open to them on the facts of the case. I would dismiss this claim.

Procedure

[51]It will be apparent from the foregoing analysis that I consider that this court has been considerably disadvantaged by not having a complete note of the evidence available to the magistrates in either case. Both parties have relied on statements of evidence as to their respective positions which themselves were not before the magistrates and contain assertions as to what transpired. In a Note in response to the grounds submitted on behalf of the Chief Constable, Mr Stanbury goes so far as to say that his challenge is not to rationality but with the reasonableness of the process. With respect, that is not the basis on which this case has been put. The process, that is to say the mechanism of the appeal, the way in which evidence has been adduced and the ability to take full part in the proceedings have not been challenged in any way. The criticism advanced by Mr Stanbury is that the evidence did not justify the conclusions which themselves were based on flawed reasoning: it is self evident that this requires an analysis of the evidence, the conclusions and the reasons.

[52]For my part, I have no doubt that challenging these decisions by way of judicial review is not the appropriate method of ventilating the issues which lie behind these appeals. What should have happened is that the claimants should each have embarked upon an appeal by way of case stated. That such an avenue is available is clear from s. 111 of the Magistrates’ Courts Act 1980 (“the 1980 Act”) in these terms:

“(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 …”

[53]The value of proceeding by way of case stated is that the aggrieved party can identify the decisions of law with which issue is taken and, in the context of those decisions, both parties can ensure that all the facts are set out, along with the relevant findings on those facts made by the justices, so that all the material necessary for the decision of the High Court is available: the magistrates, with the advice of their clerk, then provide their input before signing the case. Had that course been taken in this case, the need for statements and further material would have been entirely obviated. The fact that there is a strict time limit of 21 days within which to request the case to be stated (see s. 111(2) of the 1980 Act) is an advantage: it requires all concerned to focus on the case while the facts remain freshly available.

[54]Judicial review is a discretionary remedy and, for my part, I would be very reluctant to accede to a challenge by that route when an application for a case to be stated is more appropriate. That is not to say that there may not be circumstances when judicial review could be better suited to the issues under review but I consider that such circumstances are likely to be wholly exceptional. Given that judicial review was sought in Hamill without adverse comment, it would not have been right to deprive these claimants of a remedy in this case. The same will not necessarily be so in the future.

Conclusion

[55]In the circumstances, I would quash the decision in relation to NE and remit the appeal to be reheard by the Birmingham Magistrates’ Court. I would dismiss the claim for Judicial review in relation to NM. Mr

Justice Walker :

[56]I agree.

order

see CPR 39.2(4). In granting an interlocutory order in order to preserve the position (“the interlocutory anonymity order”), Stewart J specifically referred the issue to the court. For my part, I see very real force in the proposition that the claimants are doing no more than seeking to relieve themselves of obligations imposed on them many years ago whereas now they contend that there is the absence of risk of sexual offending. Making no application and remaining silent would almost inevitably have allowed them to keep their offending out of the public eye.