M v Chief Constable of Hampshire Secretary of State for the Home Department (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins,LADY JUSTICE HALLETT |
| Judgment Date | 12 December 2012 |
| Neutral Citation | [2012] EWHC 4034 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8351/2011 |
| Date | 12 December 2012 |
[2012] EWHC 4034 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lady Justice Hallett DBE
Mr Justice Collins
CO/8351/2011
Mr Hugh Southey QC (instructed by Fulchers) appeared on behalf of the Claimant
Mr Dijen Basu (instructed by Deputy Force Solicitor) appeared on behalf of the Defendant
Mr Martin Chamberlain (instructed by Treasury Solicitor) appeared on behalf of the Interested Party
: Overview: The claimant is a convicted child abuser and, in a pre-emptive strike, invites the court to read down legislation which, on the face of it, would allow a senior police officer to apply for a search warrant to enter his home, without notice, for the purpose of assessing risk. Alternatively, the claimant seeks a declaration of incompatibility.
The legislation in question is the Violent Crime Reduction Act 2006. The Act came into force on 31 May 2007 and introduced Section 96B into the Sexual Offences Act 2003. The Sexual Offences Act contains numerous provisions designed to create a regime to prevent further offending by convicted sexual offenders. One part of the regime consists of visits to the homes of offenders by local police officers to assess risk. They monitor by visiting the offender at home. The higher the risk the offender is assessed to pose, the more frequent the visits. Someone assessed at low risk is visited once per year; someone assessed at medium risk, twice a year; someone at higher risk, four times a year; someone at very high risk is visited monthly. Initially, the system depends on the offenders allowing police into their homes without objection. However should police officers fail to gain access on two separate occasions, a senior police officer may apply to a justice of the peace for a warrant to enter and search the offender's home.
As yet, no application has been made against the claimant under this section but he wants to ensure that none is made. Further, he objects to the so-called "consensual" visits to his home made since the section came into force. He wants them declared unlawful and seeks damages. In addition, he seeks two undertakings:
(1) that he will be given advance notification of any application to apply for a search warrant under the section and
(2) that no application for a search warrant will be made unless there are reasonable grounds to believe that there is material in his home to demonstrate that he has offended or is about to offend.
Facts and Evidence
In this extempore judgment I do not need or intend to dwell upon the facts. Suffice it to say that the claimant was responsible for the appalling sexual abuse of a young child in his care whose identity must not be revealed. Although the claimant makes no mention of it in his witness statement in support of his application for judicial review, in 1990 he admitted, and was convicted in Australia, of five counts of indecent assault upon the child. On his own admission, one of the offences would amount to the offence of rape of an 8-year old in this country. To those of us accustomed to our Sexual Offences Act sentencing regime, the sentence of eighteen months imprisonment suspended was astonishing.
The claimant came to the United Kingdom with his family. In 1996 a further complaint was made by the same child of repeated sexual abuse over a period of years after they had left Australia. The claimant was convicted at Reading Crown Court of various offences of indecent assault, including digital penetration. He was sentenced to four years. His attempts to appeal the sentence and conviction failed. He served his sentence and was released on 8 October 1999. At the time of his release from prison, a probation officer reported that despite the claimant's earlier admissions in relation to his abuse of the child, members of his family, including his wife, did not believe the complainant. He has not subsequently been convicted of any further offences. However he was recently arrested and is on police bail for alleged offences of sexually assaulting another young child in his care.
Given the length of the term of imprisonment and the nature of the offences, the claimant was obliged to register with the police. In 2005 and 2006 he received police visits for the purpose of assessing the risk he posed. At that time he did not appear to object. Mr Hugh Southey QC, for M, insists that post 2007, since the enactment of the section, Mr M's consent has not been freely given. This is because he understood that if he did not co-operate a warrant could be obtained under the section.
In 2007 the claimant applied for contact with a granddaughter. He says he understood at that time there was nothing to prevent his allowing children into his home. Indeed, he had created a child's sand pit as an attraction for them in his back garden. His conduct does not seem to have triggered any alarm bells at this stage. Police continued to monitor and visits continued. They varied between once and twice per year. In October 2010 the claimant informed his police visitors that he "avoided children like the plague". This was despite the fact he was seeing his grandchildren on a regular basis at the house.
When, in November 2010, police officers learned that the claimant's 4-year old grandson was one of those regular visitors they expressed their concern. They decided they had no option, given the nature of the previous offending, but to inform the child's mother. She ceased all contact. The claimant's risk assessment was raised to high and the police visits increased. Both the claimant and his wife found the visits and the questioning increasingly intrusive. The most recent visit before the claim was launched occurred on 2 June 2011. On that occasion the claimant allowed police officers into his house for fifteen minutes. He then told them to leave. He refused to answer questions. Days later, a letter before claim was sent.
As well as a statement from the applicant explaining the impact of the visits upon him and his family, the evidence consists of a statement from a Mr French (a policy adviser at the Home Office) and from Detective Sergeant Darren Barrett. DS Barrett has been charged with assessing the level of risk which the claimant poses to children. Between them, Mr French and Mr Barrett explain that the power under Section 96B exists to enable the police to perform their duty of assessing risk. It would be impossible, it is said, to assess risk without being able to enter an offender's home. The power to obtain a search warrant would be rendered redundant if there was a requirement for reasonable suspicion to exist. There are already powers to apply to search premises where there is a reasonable suspicion. Further they point out there are a number of safeguards that apply to the issue of search warrants under the 2003 Act. They include the fact that the search can only be for the purpose of assessing risk.
In fact, police officers rarely apply for a warrant under the 2003 Act. They find the system of co-operation and consensual visits works, for the most part. If it does not work and they have to apply for a warrant, giving an individual notice of an application, in their judgment, would defeat the purpose by allowing that person the opportunity to hide or destroy evidence. It might also prevent the deployment of intelligence in support of the application.
The two men emphasise that as far as those responsible for the legislation and implementing it are concerned, safeguarding children is paramount and if they were forced to wait until there was a reasonable suspicion of further offending it might be too late and devastating harm might already have been caused.
The Law
That brings me to the legislation at the heart of the application. Section 96B provides that –
"(1) If on an application made by a senior police officer of the relevant force a justice of the peace is satisfied that the requirements in sub-section (2) are met in relation to any premises, he may issue a warrant authorising a constable of that force —
(a) to enter the premises for the purpose of assessing the risks posed by the relevant offender to which the warrant relates; and
(b) to search the premises for that purpose.
(2) The requirements are —
(a) that the address of each set of premises specified in the application is an address falling within sub-section (3);
(b) that the relevant offender is not one to whom sub-section (4) applies;
(c) that it is necessary for a constable to enter and search the premises for the purpose mentioned in sub-section (1) (a); and
(d) that on at least two occasions a constable has sought entry to the premises in order to search them for that purpose and has been unable to obtain entry for that purpose."
The section goes on to specify when an address falls within the sub-section and what constitutes a relevant offender.
Section 96B is within Part II of the Sexual Offences Act. Part II requires sex offenders to notify the police of various details, commonly known as sex offender registration. An offender subject to the notification requirements is also subject to Section 96B. The notification requirements apply for life where a person has been sentenced to a term of imprisonment of thirty months or more for a sexual offence listed in Schedule 3. The claimant is therefore subject to a notification requirement for an indefinite period.
However since...
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