R (on the application of Hamill) v Chelmsford Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens |
| Judgment Date | 08 August 2014 |
| Neutral Citation | [2014] EWHC 2799 (Admin) |
| Docket Number | Case No: CO/12468/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 August 2014 |
[2014] EWHC 2799 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Aikens
Mr Justice Bean
Case No: CO/12468/2013
and
Ian Brownhill (instructed by the Prisoners' Advice Service) for the Claimant
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 the Interested Party
Hearing dates: 09/05/2014 and 08/07/2014
This is the judgment of the court to which both of us have contributed.
I. Synopsis
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.
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.
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.
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. 1 It was largely for that reason that we decided to reserve our reasons for allowing the appeal.
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
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
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.
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".
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. 2
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
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.
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.
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...
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