Court of Appeal
| DOI | 10.1350/jcla.2009.73.4.578 |
| Published date | 01 August 2009 |
| Date | 01 August 2009 |
| Subject Matter | Court of Appeal |
Court of Appeal
Indeterminate Notification: Revisiting the Sentence
Rv F[2009] EWCA Crim 319
Keywords Sex offenders; Notification requirements; Human rights;
Proportionality; Duration
The previous issue of this journal reported the case of R (on the application
of F and Thompson) vSecretary of State for the Home Department [2008]
EWHC 3170 (see (2009) 73 JCL 191–5). In that case the Divisional Court
held, inter alia, that it was disproportionate for a juvenile convicted of a
sexual offence to be required to notify his details to the police indef-
initely. This case concerns the same offender, F, and it involves the novel
question of whether a finding that an offender’s Article 8 Convention
rights have been breached should require the Court of Appeal (Criminal
Division) to allow an appeal against sentence.
F, aged 11 at the time of the alleged incidents (but 13 when tried), was
convicted of two counts of the rape of a child under 13, three counts of
causing or inciting a child under 13 to engage in sexual activity and one
count of the sexual assault of a child under 13. All the offences related to
the same complainant, a six-year-old boy who lived next door to F.
The complainant and F would play together regularly but one day the
complainant alleged that F had requested the complainant to perform
fellatio on him and had anally raped him. When interviewed by the
police, the complainant alleged that he had been both anally and orally
raped, and that he had been forced to fellate F and also to penetrate his
anus with his penis. F denied all the incidents, but was convicted at trial.
Despite F’s age, the judge stated that these were very serious offences
and sentenced him to 30 months’ detention.
Following the Divisional Court ruling (above), F appealed to the
Court of Appeal arguing that as being subject to the notification require-
ments indefinitely without the possibility of review was a breach of
Article 8, the Court of Appeal should reduce his sentence on appeal
(despite the fact that he had now been released from detention) so as to
ensure that the offender had to notify his details for a determinate
period of time. This, F contended, would ensure that F’s rights under
Article 8 were not breached.
H
ELD
,
DISMISSING THE APPEAL
, it was a long-standing principle that
the courts should not alter the sentence of an offender purely to evade
the notification requirements. The Divisional Court held that indefinite
notification was disproportionate, but what it did not hold (because it
was not its role to do so) was that notification for five years (which
would be the duration if the sentence were reduced) was appropriate for
this particular offender. The Divisional Court had instead stated that
there should be an opportunity for an offender to show that he no
longer posed a risk of harm. Accordingly there was no logical reason to
298 The Journal of Criminal Law (2009) 73 JCL 298–304
doi:1350/jcla.2009.73.4.578
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