Application to be no longer subject to the notification requirements under the Sex Offenders Law

[2019]JRC223

Royal Court

(Samedi)

11 November 2019

Before     :		J. A. Clyde-Smith O. B. E., Commissioner, and Jurats Crill and Olsen
Between	L		Applicant
And	The Attorney General		Respondent

IN THE MATTER OF L

AND IN THE MATTER OF AN APPLICATION UNDER ARTICLE 5(5) OF THE SEX OFFENDERS (JERSEY) LAW 2010

Advocate A. M. Harrison for the Applicant

R. P. Pedley Esq., Crown Advocate for the Respondent.

JUDGMENT

THE COMMISSIONER:

1.        The Applicant applies that he no longer be subject to the notification requirements under the Sex Offenders (Jersey) Law 2010 (“the Sex Offenders Law”).  The Applicant was made subject to those requirements following his conviction more than five years ago for making or attempting to make indecent photographs of children. 

2.        When he was sentenced, the Court determined that five years should expire before he could apply to have the notification requirements lifted.  The Court also imposed restraining orders for a period of five years and those orders have now lapsed. The Applicant is now in his fifties.  

3.        The application is brought under Article 5(5) of the Sex Offenders Law, and the test to be applied is set out in Article 5(6), which is in the following terms:-

“(6)     The court must not make the order applied for under paragraph (5) unless it is satisfied that the risk of sexual harm to the public, or to any particular person or persons, that the person subject to the notification requirements of this Law poses by virtue of the likelihood of re-offending does not justify the person’s being subject to those requirements.”

4.        The notification requirement scheme amounts to a legitimate interference with the private life of those subject to it, within the scope of Article 8(1) of the European Convention on Human Rights, but as the Court said at paragraph 12 of AG v Roberts [2011] JLR 125:-

“….it nonetheless remains necessary for the court to satisfy itself that the orders which it makes are proportionate so that the extent of the interference with the convention right is balanced appropriately against the important public interest which is the basis of the legislation.”

5.        As the Court concluded in AG v Roberts at paragraph 23, an applicant has to satisfy the Court to the civil standard:-

“… that the risk of his or her committing further sexual offending can be discounted to the extent that the imposition of the notification requirements is unjustified.  The facts on which the offender would rely for such a contention will be too diverse for summary, but the seriousness of the original offence, the length of time since the offending and special circumstances, if any, which led to the offending and which no longer exist, might all potentially be relevant.  The Court would expect to have all background reports at the time the offending took place, and in most cases an update on those reports to highlight material changes in the interval.”

6.        If the Court refuses to lift the notification requirements, then under Article 5(7) it must make an order specifying a further period before another application may be applied for.

Hearing in private

7.        As in all of these cases, the Applicant sought an order that the hearing be in private or, if not, that any judgment be anonymised.  The principles to be applied in such an application are to be found in the case of Jersey Evening Post Limited v Al Thani and Four Others [2002] JLR 542, where it was held, quoting from the headnote:-

“(2)     The principle of open justice had not yet found statutory expression in Jersey but formed part of the law and an order for proceedings to be heard in camera was only to be granted when it was necessary to do justice in the exceptional circumstances of the case, e.g. to protect specific individuals or prevent the destruction of the subject-matter in issue.  Public proceedings ordinarily deterred inappropriate behaviour on the part of the court, maintained public confidence in the impartial administration of justice, made uninformed and inaccurate comment on the proceedings less likely, and could result in additional evidence becoming available.  The burden lay with the party seeking an order for hearing in camera to prove that it was the only way in which justice could be done; convenience, potential embarrassment and parties’ preferences were in themselves insufficient justification (paras. 12-17).”

8.        Examples of exceptional circumstances which might justify sitting in private were mentioned in AG v Roberts in relation to applications under Article 30(2) of the Sex Offenders Law which could also apply to applications under Article 5(5):-

“43……..It is pointed out that there may have been a change in circumstances since the date of the conviction – the offender may have married, and the existence of the previous conviction may be unknown to his or her spouse and/or children.  It is possible that the effect of further publicity would lead the offender to the view that he or she could not escape the consequences of the previous offending which might therefore be a disinhibiting factor to further offending. It is said that there may be circumstances where the publicity given to the application might be an extremely negative factor in the context of the work being done with the offender by the probation services.  This is not necessarily an exclusive list of objections, but these examples are provided as illustrations of the kind of case where the courts might consider the interests of the offender outweighed the public interest that the court should sit in public, or that the court’s judgment should be pronounced publicly and without anonymizing the offender.”

9.        As the Court in Jersey Evening Post Limited v Al Thani concluded at paragraph 16:-

“The aim therefore was to do justice to the parties before the Court.  That aim must not be stultified by a rigid application of the principle that justice must be done in public.  Yet the principle of open justice should not be displaced as a matter of convenience or expedience, or to avoid embarrassment to one or more of the parties, but only if it is necessary to do so in the interests of justice.”

10.      Publicity accompanying the Applicant’s conviction created difficulties for himself and his wife.

11.      The Attorney General accepts that publicity about this case now could inflame passions again and recognised, in particular, the impact of this upon the Applicant’s wife, who is an innocent party.  The Attorney General was not therefore firmly opposed to the Court sitting in private.

12.      The purpose of the Sex Offenders Law is to protect potential victims from sexual harm, and not to further penalise the offender, by ensuring that the police are aware of the whereabouts of all serious sex offenders, knowledge which is of obvious assistance in the detection of offenders and the prevention of crime (see paragraph 25 of AG v Roberts).  Knowledge that a person is registered with the police may also dissuade him or her from committing further offences, and thus the measures contribute towards a lower rate of re-offending in sex offenders (see paragraph 14 of AG v Roberts).

13.      It is no part of the scheme to encourage vigilantism through publicity of applications of this kind, putting the safety of the Applicant and in particular innocent parties at risk; indeed, that would increase the burden upon the paid and honorary police, who have already deployed resources at the time of the Applicant’s conviction in regular patrols of the area in which the Applicant’s wife lives. It also seems to the Court that in a small community such as Jersey, the potential for vigilantism is greater than otherwise might be the case.

14.      For these reasons, the Court agreed to sit in private, but it accepts that there is a legitimate interest in the public and the legal profession knowing how applications of this kind are treated by the Court, and therefore, this judgment will be issued in an anonymised form.

The application

15.      The Applicant is described as leading a lonely secluded life.  He has numerous health concerns, including depression and anxiety to name but two, for which he has been prescribed an extensive number of tablets daily.  He has two earlier convictions for sexual offences, both of which resulted in short prison sentences and both of which he denies. He has been unemployed for over 20 years.

16.      The Applicant made it clear from the outset that he was not going to undergo any sexual offending treatment, whether in prison or on his release.  His claimed rationale for engaging in looking at indecent images of children was to identify victims of abuse.  He denied any sexual gratification from his sexual offending and stated that the sexual abuse of children “disgusts him”. 

17.      However following his release, he has attended regularly with his probation officer, Ms Janette Urquhart, and whilst he would not discuss his sexual convictions with her, she says he has shown insight into the detrimental and potential long-lasting consequences of sexual abuse for victims (he would place himself in this category).  He engaged well with Ms Urquhart, and the indications are that he has been fully compliant with the restraining orders when they were in place and there has been no recurrence of sexualised behaviours.

18.      His devices have been checked during home visits and nothing of a concerning nature was revealed.  According to the police report, he had accessed adult pornography on his laptop but Advocate Harrison informed the Court, on instructions, that the Applicant denied viewing any adult pornography.

19.      Advocate Harrison submitted that there were a number of factors in the case which could justify the conclusion that the risk of sexual harm posed by the Applicant does not justify his being subject to the notification requirements:-

(i)        In the view of Ms Urquhart, the Applicant is towards the low end of the moderate band of sexual recidivism.

(ii)       He has the ongoing support of his wife.

(iii)      He has a number of health concerns which have affected his libido.

(iv)      Under the SAS07 Stable Assessment, he scored primarily in “significant social influences”, “capacity for relationship stability”, “general social rejection” and “negative emotionality”.  In Advocate Harrison’s view, there was a degree of overlap in the justification for scoring in each area, and the reasons for the scores were, to some extent, a result of his offending and the consequences rather than the cause.

(v)       The De-Notification Report records the Applicant as saying that lifting the reporting requirements would enable him to start moving on with his life without trying to live under the label of “sex offender”.  Advocate Harrison argued that lifting the restrictions may, in the particular circumstances of this case, serve to reduce the risk still further.

20.      Crown Advocate Pedley, for the Attorney General, opposed the application for the following reasons:-

(i)        The SA07 Stable Assessment placed him in the middle of the moderate range for sexual recidivism.

(ii)       He remains in denial as to the nature of the offences and justifies his possession of the images by saying he was looking for images of himself.

(iii)      He has done limited work whilst in custody and refused any sexual offending treatment.  He is therefore an untreated sex offender.

Decision

21.      After some deliberation, the Court has decided that it cannot make an order under Article 5(5) of the Sex Offenders Law lifting the notification requirements for the following reasons:-

(i)        The offences are serious.  The images were downloaded over a lengthy period of time, using sophisticated practices to do so.  Of the images found, more than a third were of severe sexual abuse of children involving sexual intercourse between children and adults.

(ii)       He has maintained from the outset that there was no sexual element to his offending and has refused any sexual offending treatment whilst in prison.  Whilst making some progress after his release with Ms Urquhart, he has refused to discuss his convictions and sexual behaviours with her.  He is, therefore, an untreated offender in denial, a denial that extends back to the two earlier contact sexual offences.

(iii)      Whilst Ms Urquhart has placed him within the lower end of the moderate band for sexual recidivism, as against the SA07 Stable Assessment which placed him in the middle of the moderate band, he is still within the moderate band for sexual recidivism.

(iv)      The Court is concerned with the risk of sexual harm, and in the context of this case, principally with the risk of his accessing indecent images of children again.  His continued denial of any sexual interest in them, a denial which in itself suggests that his interest may remain, combined with the very isolated lifestyle he leads is of concern, as is his denial of accessing the adult pornography found on his laptop.

22.      In our view the risk of further sexual offending cannot be discounted to the extent that the notification requirements are no longer justified.  We therefore refuse the application and pursuant to Article 5(7), we order that a further two years must expire before a further application can be made to lift the notification requirements.

Authorities

Sex Offenders (Jersey) Law 2010. 

AG v Roberts [2011] JLR 125. 

Jersey Evening Post Limited v Al Thani and Four Others [2002] JLR 542