R (on the application of NE and NM) v Birmingham Magistrates' Court and The Chief Constable of West Midlands Police
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P,Mr Justice Walker |
| Judgment Date | 20 March 2015 |
| Neutral Citation | [2015] EWHC 688 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 March 2015 |
| Docket Number | Case No: CO/2942/2014; CO/3883/2014 |
[2015] EWHC 688 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Mr Justice Walker
Case No: CO/2942/2014; CO/3883/2014
and
and
Mr Matthew Stanbury (instructed by QualitySolicitors Jordans and Irwin Mitchell) for NE and NM respectively
The Defendant did not appear and was not represented
Ms Alison Hewitt (instructed by Staffordshire and West Midlands Police, Joint Legal Services) for the Interested Party
Hearing date: 4 March 2015
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.
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".
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
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.
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.
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.
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 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.
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.
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
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.
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...
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