England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		15 January 2013

1. LORD JUSTICE LAWS: This is an application for judicial review, with permission granted by Mr Justice Burnett on 17 September 2012, directed to the decision of His Honour Judge Pontius made at the Central Criminal Court on 28 March 2011 by which he purported to lift the notification requirements imposed on the interested party Michael Guilfoyle pursuant to Sections 81 and 82 of the Sexual Offences Act 2003.
2. On 4 August 2000 the interested party was sentenced at the Central Criminal Court to six years' imprisonment for a serious offence of indecent assault on his estranged wife and concurrent sentences for other offences arising out of the same incident. By virtue of the six-year sentence, he was subject, pursuant to Section 1 of the Sex Offenders Act 1997, to the notification requirements set out in that Act for an indefinite period. On 1 May 2004 material parts of the Sex Offenders Act 1997 were replaced by Sections 81 and 82 of the Sexual Offences Act 2003. The interested party continued under those provisions to remain subject to the notification requirements indefinitely.
3. Section 81 is cross-headed "Persons formerly subject to Part I of the Sex Offenders Act 1997". Section 81 (1) of the 2003 Act provides in part:

"(1) A person is, from the commencement of this Part until the end of the notification period, subject to the notification requirements of this Part if, before the commencement of this Part -

(a) he was convicted of an offence listed in Schedule 3;

..... "

Schedule 3 includes an offence of indecent assault on a female where the offender has been sentenced to imprisonment for a term of at least thirty months. Section 82 (1) prescribes an indefinite notification period for an offender sentenced to imprisonment for a term of thirty months or more. Under these provisions as enacted there was no legal power vested in any court or other body to lift the notification requirements once the offender became subject to them.

4. Judge Pontius on 28 March 2011 accepted evidence that the interested party - who was an alcoholic - had not had a drink for four years and had effectively turned his life around. He held that the purpose of the notification requirements in his case could be regarded as having come to an end; and so he made the order he did.
5. It is plain and uncontested that the judge's order was wholly without jurisdiction. He had no legal power whatever to impose it. The application for an order that the order be quashed is nonetheless resisted by the interested party on the grounds that the judicial review claim was lodged eleven months out of time and no good reason for any extension is shown. On the contrary, it is said there are good reasons not to extend time. Mr Daniels this afternoon has developed his argument to support that position. The judge, it is said, was right to be impressed with the interested party's merits. Those merits have if anything grown since the judge's order. There are before us a number of testimonials. There is a good deal of material to show that indeed the interested party has turned his life around.
6. On 30 July 2012, by force of the Sexual Offences Act 2003 (Remedial) Order 2012, Sections 91A to 91F were inserted into the 2003 Act. For the first time they provided a mechanism for the review of notification requirements. Sections 91A to 91F were introduced in order to comply with the decision of the Supreme Court in F and Thompson v Secretary of State for the Home Department [2010] UKSC 17, in which it was declared that the indefinite notification requirements were incompatible with Article 8 of the European Convention on Human Rights for want of a provision for review of their continuation in individual cases. Section 91A (1) allows a qualifying relevant offender - that is one who is not subject to a sexual offences prevention order under Section 104 (1) or an interim sexual offences prevention order under Section 109 (3) - to apply to the chief officer of police for a determination that he be no longer subject to the notification requirements. But in the case of an offender aged 18 or over at the date of his conviction the application may not be made until fifteen years have elapsed since his first notification following his release from prison (Section 91B (1) and Section 91B (2) (a)).
7. In determining the application under Section 91C, the chief officer of police must consider whether it is necessary (for the protection of the public or any member of the public from sexual harm) that the offender should remain subject to the indefinite notification requirements. He must take into account information received from any "responsible body" notified by him under Section 91B (8) (b) and also have regard to a list of factors which are specified in Section 91D (2). By Section 91E, an offender may appeal to a Magistrates' Court against the determination of the chief officer.
8. This regime was not in force at the time of Judge Pontius's decision and thus provides no authority whatever for the order made by him.
9. The claimant offers no excuse whatever for the very considerable delay in lodging the judicial review claim. There is none. For my part, I regard it as lamentable that a public body in the position of and having the responsibilities of the Commissioner of Police for the Metropolis should perpetrate such a delay in bringing proceedings of this kind.
10. In considering whether to refuse to quash Judge Pontius's order by reason of the Commissioner's delay, it seems to me however that the overriding consideration must be the public interest. We are not to decide the case as if we were exercising the discretion vested in the chief officer of police or the Magistrates' Court under Section 91. Nor are we reviewing any such discretion exercised by Judge Pontius, for he had none.
11. The delay has given the interested party a period of some eleven extra months free from the notification requirements. I accept that Judge Pontius's decision is effective until set aside (see, amongst other cases, Crown Prosecution Service v T [2007] 1 WLR 209). The interested party has also, it may well be said, enjoyed an enhanced expectation that he would remain free of those requirements. As I have already said, his conduct and lifestyle have become yet more positive on the evidence over the period since Judge Pontius's order. However had the judicial review application been brought in time, Judge Pontius's order would certainly have been quashed and indeed, as Mr Daniels accepted, he would have no basis for contesting such a result. That would be the normal course in relation to a plainly unlawful decision (see Edwards v Environment Agency [2008] UKHL 22, paragraph 63).
12. So far as the interested party is concerned, the only relevant consideration - important though it undoubtedly is to him - is the added impact occasioned by the delay. In my judgment there are much broader public interest considerations which it is our duty to have in mind. Two such considerations strike me in particular.
13. First, this is not a case where the legal merits of the claim are merely arguable; they are positively established. Judge Pontius made an order without the least power to do so and that is plainly and rightly accepted by Mr Daniels. Accordingly if we grant relief we will be upholding the rule of law; not merely the litigant's claim to argue his case. Secondly, the interested party has had the notification requirements lifted without having had to undergo any of the procedures now contained in Section 91. This is not merely a matter of mechanics. There has for instance been no input from the responsible bodies who have to be consulted under the section, and because of the fifteen-year bar on his making an application the interested party would not be entitled to make one. The fifteen years runs from his first notification after being released from prison, and as I have said he was sentenced to six years in August 2000. There is in my judgment a plain public interest in seeing that all applications to lift the notification requirements are dealt with in accordance with the Section 91 procedure. The interested party has uniquely obtained the removal of the requirements not only outwith those procedures but several years before those procedures would have allowed an application to be made.
14. I consider that these are powerful public interest considerations. For these reasons I have concluded that this court should quash Judge Pontius's order notwithstanding the Commissioner's late application. For my part therefore I would accede to this judicial review application.
15. MR JUSTICE HICKINBOTTOM: I agree.
16. LORD JUSTICE LAWS: Miss Ventham, I think my Lord and I are still provisionally of a mind to order your client to pay the costs of the other side as well as your own. We will hear you about that.
17. MISS VENTHAM: I would like to have a go at least of persuading you otherwise.
18. LORD JUSTICE LAWS: By all means.
19. MISS VENTHAM: Your Lordship will have seen in the chronology attached to my skeleton argument - - - - -
20. LORD JUSTICE LAWS: I have seen that but let us look at it.
21. MISS VENTHAM: - - - - - what in fact has happened since the order of His Honour Judge Pontius was made. What that chronology sets out is a number of attempts by not just the police but also the Crown Prosecution Service and the Central Criminal Court to rectify the situation without the need for judicial review proceedings.
22. LORD JUSTICE LAWS: How could it be rectified without proceedings? The judge's order was good until set aside.
23. MISS VENTHAM: Yes. That certainly was the view that all the parties reached in the end. It was not a view shared by all parties throughout.
24. LORD JUSTICE LAWS: It is elementary law. A superior court of record's orders are good until set aside.
25. MISS VENTHAM: Absolutely. The difficulty that the police faced - in fairness to them - was that the Central Criminal Court could not be persuaded of that particular argument.
26. LORD JUSTICE LAWS: All the more reason to get on with the proceedings.
27. MISS VENTHAM: Yes. I appreciate that. What in fact occurred was that clearly there was a certain amount of time lost by corresponding with the various different parties involved in the initial application before Judge Pontius.
28. LORD JUSTICE LAWS: You had the transcript within the three months, did you not?
29. MISS VENTHAM: We did.
30. LORD JUSTICE LAWS: 27 May.
31. MISS VENTHAM: Yes. I do not seek to persuade you that those amount to very good reasons but they are the reasons. With the best of intentions the police were making efforts to rectify the situation without recourse to this court albeit I take the point that that was never going to be achievable.
32. The only other observations that I would make about the order your Lordships make in this claim are these. In a sense, making an order that the police pay not only their own costs but those of the interested party would be to visit the sins of others upon them in the sense that this situation came about in the first place through the conduct of others, not least those then acting on behalf of Mr Guilfoyle who initiated the application on an entirely erroneous basis without any legal basis whatsoever. Also the CPS and Central Criminal Court inevitably had a part to play in that. The point is that the police had no part to play in that and essentially were left to sort out the mess after the events.
33. Finally I urge you to have regard to the basis upon which this claim has been contested by Mr Guilfoyle. I take the point that the only point available to him was that of delay. Without that, they say that they would not have sought to contest. That has to be taken at face value. Nevertheless they have advanced a basis, even with the delay point, for seeking to defend this claim which in my submission was from the outset wholly unrealistic.
34. LORD JUSTICE LAWS: That is not entirely fair, if I have understood it. Mr Daniels has not sought to defend the claim in the sense of submitting that in any way Judge Pontius was right. His submissions have been wholly confined to addressing the discretion of this court to give relief in the face of the delay.
35. MISS VENTHAM: Yes. It was sloppy language on my part. That is precisely what I meant. But the basis on which they contended that this court should not exercise its discretion to grant the remedy sought in my submission was an unrealistic and unmeritorious basis as has perhaps been revealed by the absence of any need to hear from me today.
36. LORD JUSTICE LAWS: If we were to accept that we would be downgrading the importance of the time limit, as if it did not matter.
37. MISS VENTHAM: I appreciate that your Lordship will seek to make an order in costs that reflects the overall justice of the case, and into that balancing exercise will go not only our inexcusable delay in issuing the proceedings but also the fact that the situation was not of our making in the first place and the basis upon which the interested party has sought to persuade you not to grant the order sought. Those are matters I urge upon you.
38. LORD JUSTICE LAWS: Thank you. Very tenacious, Miss Ventham.
39. Mr Daniels, I do not think you can do better than getting an order that the Commissioner pays your costs. Is there anything you want to say?
40. MR DANIELS: I do not think I can do better that that bearing in mind your Lordship's judgment. The only thing I raise with you - just for your information as opposed to anything you need to do about it - is that it seemed to us on this side of the court that the proper approach now from Mr Guilfoyle would be to re-register.
41. LORD JUSTICE LAWS: One thing at a time. You are not suggesting that we make any order other than an order quashing Judge Pontius's order in the light of our judgment and an order that the Commissioner pay your costs to be subject to detailed assessment if not agreed?
42. MR DANIELS: No.
43. LORD JUSTICE LAWS: We will make that order. Those are the orders we make. You have something else you wanted to say?
44. MR DANIELS: I only wanted to raise this publicly so your Lordships know how this progresses. Clearly this is a unique situation. Mr Guilfoyle does not want to fall foul of any technicalities. The process that we intend to adopt is that Mr Guilfoyle will contact the Metropolitan Police to re-register, to notify as if he were in effect notifying for the first time, and we put in a process whereby that will take place.
45. LORD JUSTICE LAWS: I do not think it is for us to advise Mr Guilfoyle how to proceed but no doubt you and Miss Ventham will have a word and some appropriate course of procedure will be agreed.
46. MR DANIELS: Yes. I am grateful.
47. LORD JUSTICE LAWS: We are obliged to counsel for their helpful submissions.