QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HON. MR JUSTICE HOLGATE
| THE QUEEN on the application of SIMON HALABI
|- and -
|THE CROWN COURT AT SOUTHWARK
|COMMISSIONER OF POLICE OF THE METROPOLIS
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Jason Beer QC and Alice Meredith (instructed by Directorate of Legal Service, MPS) for the Interested Party
Hanif Mussa (instructed by Government Legal Department) for the Intervener
Hearing dates: 25th – 26th February 2020
Crown Copyright ©
Lord Justice Haddon-Cave and Mr Justice Holgate:
FACTUAL AND PROCEDURAL BACKGROUND
Magistrates' Court proceedings
Crown Court proceedings
The first judicial review proceedings
The second judicial review proceedings
Sexual Offences Act 2003
"(1) A chief officer of police may, by complaint to any magistrates' court whose commission area includes any part of his police area, apply for an order under this section (a "notification order") in respect of a person ("the defendant") if—
(a) it appears to him that the following three conditions are met with respect to the defendant, and
(b) the defendant resides in his police area or the chief officer believes that the defendant is in, or is intending to come to, his police area.
(2) The first condition is that under the law in force in a country outside the United Kingdom—
(a) he has been convicted of a relevant offence (whether or not he has been punished for it),
(b) a court exercising jurisdiction under that law has made in respect of a relevant offence a finding equivalent to a finding that he is not guilty by reason of insanity,
(c) such a court has made in respect of a relevant offence a finding equivalent to a finding that he is under a disability and did the act charged against him in respect of the offence, or
(d) he has been cautioned in respect of a relevant offence.
(3) The second condition is that—
(a) the first condition is met because of a conviction, finding or caution which occurred on or after 1st September 1997,
(b) the first condition is met because of a conviction or finding which occurred before that date, but the person was dealt with in respect of the offence or finding on or after that date, or has yet to be dealt with in respect of it, or
(c) the first condition is met because of a conviction or finding which occurred before that date, but on that date the person was, in respect of the offence or finding, subject under the law in force in the country concerned to detention, supervision or any other disposal equivalent to any of those mentioned in section 81(3) (read with sections 81(6) and 131).
(4) The third condition is that the period set out in section 82 (as modified by subsections (2) and (3) of section 98) in respect of the relevant offence has not expired.
(5) If on the application it is proved that the conditions in subsections (2) to (4) are met, the court must make a notification order.
(6) In this section and section 98, "relevant offence" has the meaning given by section 99."
ECHR and HRA
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility."
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(3) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."
(1) Whether the Decision was disproportionate and violated Article 8 of the ECHR;
(2) Whether, by reason of section 3 of the HRA 1998, section 97(5) of the SOA 2003 can be read so as so as to include the qualification "except in so far as such an order would be disproportionate and thus a breach of article 8"; and
(3) If it cannot, whether the court ought to make a declaration of incompatibility pursuant to section 4 of the HRA 1998.
Issue (1): Has there been any breach of the Claimant's Article 8 ECHR rights?
(1) The low risk of re-offending. This was demonstrated by evidence before the Commissioner, and positive evidence of his lack of risk in the 21 years since his conviction. He had not been convicted in relation to any sexual conduct occurring since September 1995; over 23 years ago.
(2) The length of time between the conviction and the N/O. Had a N/O followed his conviction, a 15 year period would have elapsed by 29th April 2013, nearly 6 years ago. The statutory scheme permits a review only after 15 years have passed from the date that the N/O is first made, rather than from the date of conviction. Thus, the Claimant would not be eligible for a review for 15 years from now, by which time he would be 75 years old, many years after the offence and conviction in question.
(3) The fact that the Claimant was already subject to "equivalent" notification requirements in France. This meant that the current N/O was unnecessary and duplicative. It also resulted in the Claimant being treated disadvantageously by comparison with an individual convicted before the domestic courts.
(4) The fact that the conviction had now been deleted from French records. This would create practical barriers to a review, as there would be no evidence of a conviction and the records available to the MPS would no longer demonstrate a valid conviction for the purposes of section 97.
(1) First, that prior to a N/O being made, the risk that the Claimant posed should have been assessed by the courts below through balancing the proportionality of any interference with his Article 8 rights with the level of risk he is judged to pose.
(2) Second, that had those risks been assessed, the conclusion would necessarily have been that he posed no risk.
(3) Third, that making a N/O without those two steps being taken constituted a breach of Article 8 rights, since the interference could not have been proportionate as the Claimant posed no risk.
"It is apparent from Lord Phillips' discussion in R (F (A Child)) that he recognised the uncertainties involved in risk assessments of serious sex offenders. This did not stop a declaration of the need for a review, but it remains a factor which supports the review being timed so as to allow consideration of the offender's behaviour over a substantial period while living in the community. In other words, a precautionary approach is appropriate."
"23. It is inevitable that a scheme which applies to sex offenders generally will bear more heavily on some individuals than others. But to be viable the scheme must contain general provisions that will be universally applied to all those who come within its purview. The proportionality of the reporting requirements must be examined principally in relation to its general effect. The particular impact that it has on individuals must be of secondary importance.
25. The automatic nature of the notification requirements is in my judgment a necessary and reasonable element of the scheme. Its purpose is to ensure that the police are aware of the whereabouts of all serious sex offenders. This knowledge is of obvious assistance in the detection of offenders and the prevention of crime."
"24. An appropriate starting point when considering the Strasbourg jurisprudence is the following statement of the Strasbourg court in Stubbings v United Kingdom (1996) 23 EHRR 213, para 62 in relation to the positive obligation owed by states to protect individuals against sexual abuse:
"Sexual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to state protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives."
The reference to deterrence was particularly relevant on the facts of that case, and the duty extends to taking such other steps as are reasonable to prevent the commission of sexual offences."
"37. ….. The notification requirements apply automatically on the occurrence of a specific judicially monitored event (i.e. conviction), but, once triggered, there is no judicial control until a review is due to take place. Lack of periodic review is not, however, unusual in relation to the imposition of penalties generally. In the absence of any prescribed procedure for an earlier review and, given the involvement of a court in the triggering event, there is no breach of Art 8 by reason of any lack of participation in the process of applying the requirements. They are either Art 8 compliant, on account of the prescribed review periods, or they are not.
38. ……In any event, the legislature is entitled to impose a general measure which applies to a pre-defined situation regardless of individual variations in circumstances (Animal Defenders International v UK (p 607), paras 106–110, Judge Bratza (concurring), para OI-4). The fact that hard cases are thereby created does not imply a violation of Art 8 (ibid). There is no basis for concluding that a less drastic measure would have the same impact than that selected in terms of reducing reoffending."
"The above factors justify not only the indefinite nature of the notification requirements for serious crimes, but also a 15-year delay in their review. The lifetime requirements are a tool for managing sex offenders, not for managing sex offenders whom the state can prove to be a risk to the public. For the person involved, it is the commission of a serious sexual offence which has triggered the consequences. The court has said that there is a need for a review bringing his or her particular circumstances into focus, but it by no means follows that a right of review must be exercisable at will, and as often as requested; this being the logical outcome of counsel for the reclaimer's submission that the requirements are incompatible with Art 8 if an individual is able to show that he poses no material risk."