Jersey Unreported Judgments

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Cite as: [2011] JRC 50, [2011] JRC 050

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[2011]JRC050

ROYAL COURT

(Samedi Division)

4^th March 2011

Before :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham and Fisher.

The Attorney General

-v-

Andrew David Roberts

Hearing in relation to notification requirements of the Sex Offenders (Jersey) Law 2010.

R. C. P. Pedley, Esq., Crown Advocate.

Mr Roberts in person.

JUDGMENT

THE DEPUTY BAILIFF:

1. On 29^th March, 2010, the defendant was convicted before this Court on two counts of making indecent photographs of children contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994. He was sentenced on 7^th May, 2010, (AG-v-Roberts [2010] JRC 088) when, exceptionally, a custodial sentence was avoided and he was required to perform 210 hours of community service on each of these two counts, to be served concurrently. The facts which had been adduced in evidence, as the Court reflected in its judgment of 7^th May, 2010, showed that there were a total of 354 images on Count 1, of which 82 were duplicates, and therefore there were 272 unique images. 63 of those were images in category 4 on the Copine scale and 7 were in category 5. The images therefore included some which showed penetrative sexual activity between children and adults, and at level 5 showed pictures of sadism or bestiality. There was no evidence before the Court that the images were to be distributed, produced or traded but the offences were complete upon the basis that the defendant had made the images by downloading them and possessing them.

2. The Sex Offenders (Jersey) Law 2010 ("the Law") came into force on 1^st January, 2011. Had it been in force at the date of the defendant's conviction on 29^th March, 2010, the defendant would automatically have become subject to the notification requirements of the Law pursuant to Article 3(1) offences under Article 2 of the Protection of Children (Jersey) Law 1994 being relevant offences as defined in the Law.

3. Article 13 of the Law applies to a person who, before the commencement of the relevant provisions had been convicted in Jersey of a sexual offence to which the Law applies, or convicted outside Jersey of an offence which if committed in Jersey would have been such an offence. Article 13(2) is in these terms:-

"The Royal Court may, on the application of the Attorney General, order that the person shall become subject to the notification requirements of this Law".

4. Article 10 of the Law confers a jurisdiction on the Court to make restraining orders in respect of an offender who has been convicted, whether before or after the commencement of the Article, of a relevant offence. The jurisdiction is conferred in these terms at paragraph (4):-

"Where-

(a) this Article applies to a person; and

(b) a court is satisfied on the balance of probabilities, on the application of the Attorney General, that the person poses a threat of serious sexual harm to the public or any particular person or persons,

the court may make such an order in respect of the offender as it is satisfied is necessary to protect the public or any particular person or persons from serious sexual harm from the offender".

5. There are detailed provisions as to the kind of orders which might be made in paragraphs (7) and (8) of the same Article.

6. This is the first occasion upon which the Royal Court has been invited to make orders under Article 13(2) and Article 10 in respect of a person who has been convicted before the commencement of the Law. It is therefore appropriate to give some guidance on the relevant legislation.

7. The Representation of the Attorney General so far as is relevant today sought the following orders from the Court:-

(i) That pursuant to Article 13(1)(a) of the Law, the defendant be subject to notification requirements for a period of 10 years, to take effect from 28^th January, 2011;

(ii) Pursuant to Article 10 of the Law, the defendant be subject to the following orders:-

(a) That he be prohibited from acquiring or using any computer software which is designed to destroy, delete or disguise internet activity on any device which may access the internet, or any computer software which is designed to encrypt data held on such a device.

(b) That he make himself available at any reasonable time to receive visits, either pre-arranged or unannounced, at his notified address from qualified or trained risk assessors, or that he attend any other pre-notified designated place for the purpose of carrying out risk assessment processes.

(c) To admit, at any reasonable time, qualified or trained risk assessors to all parts [of] his nominated address, for the purpose of carrying out risk assessment processes.

Crown Advocate Pedley applied sur le champ for leave to amend paragraph (i) above by reducing the notification period to 5 years. This was not opposed by the defendant and leave to amend was given. He also sought leave to add a further restraining order in these terms:-

"That [the defendant] be prohibited from associating or communicating with, by any means, persons whom he knows or believes to be a convicted sex offender, or under investigation for an offence of a sexual nature".

That application to amend was opposed by the defendant and we refused leave. The application was brought too late for it to be fair to the defendant to prepare his defence to it today, and an adjournment would not be fair in circumstances where the Attorney could always apply at a future date for a restraining order if none were granted today or for an amendment of an existing order if one were granted.

The Notification Requirements

8. Although the application in relation to the notification requirements is ostensibly made pursuant to Article 13(1)(a) it seems to us it is appropriately made under Article 13(2) of the Law and we have treated it accordingly.

9. The notification requirements which are set out in Article 6 of the Law require the person who becomes subject to them to notify an authorised officer of each name he or she uses and his or her home address. The notification must be renewed annually, and the person must also notify an authorised officer if he or she uses a name that has not been notified to an authorised officer pursuant to that Article. There is a requirement to notify any change in the person's home address, which must take place at the latest within 24 hours of the change. It is an offence, punishable with five years imprisonment and/or a fine for a person, without reasonable excuse to comply properly with these requirements.

10. The notification requirements may, if an authorised officer so requests, extend to an obligation to allow the officer to take the fingerprints and a photograph of the person subject to the requirements, together with a non-intimate sample. Once again, a person who fails properly to comply with these obligations is guilty of an offence and liable to imprisonment for a term of 5 years and/or to a fine.

11. Finally, the notification requirements potentially extend to an obligation to give an authorised officer other information regarding any travel outside Jersey, again on penalty of a criminal offence punishable with the same level of imprisonment and/or a fine.

12. As the Court said in the case of AG-v-Velosa [2011] JRC 026 which did not involve any application for the retrospective imposition of notification requirements but was the first occasion on which the Royal Court had considered this legislation on sentence, the notification requirements are an interference with the convicted person's right to respect for private and family life under Article 8 of the European Convention on Human Rights. As we set out at paragraphs 4 to 7 inclusive of the decision in that case, the interference with the Convention right is prescribed by law, and the legislation is primarily concerned with the protection of potential victims. Accordingly the legislation includes amongst its purposes public safety and the protection of the rights and freedoms of others and accordingly the interference with the Article 8 Convention right is for a legitimate purpose. Nonetheless, as was said in AG-v-Velosa, in any particular case where the Court's powers are to be invoked, 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.

13. The Law is not drafted so as to follow precisely the legislation applicable in the United Kingdom on this subject matter but there are nonetheless substantial similarities. In those circumstances it is in some cases useful to consider at the United Kingdom case law. Furthermore, the Court is charged to take into account the Strasbourg jurisprudence by virtue of Article 3 of the Human Rights (Jersey) Law 2000. We note therefore the statement of the European Court of Human Rights in Stubbings-v-UK [1997] 3 FCR 157 (paragraph 64) in relation to the positive obligation owed by states to protect individuals against sexual abuse:-

"Sexual abuse is unquestionably an abhorrent type of wrong doing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to State protection, in the form of effective deterrents, from such grave types of interference with essential aspects of their private lives".

14. In Adamson-v-UK [1999] 28 EHRR CD 209, at page 211, the Court said:-

"The purpose of the measures in question is to contribute towards a lower rate of re-offending in sex offenders, since a person's knowledge that he is registered with the police may dissuade him from committing further offences and since, with the help of the Register, the police may be enabled to trace suspected re-offenders faster".

15. The Strasbourg jurisprudence, dealing with the UK legislation, clearly found therefore that although the notification requirements amounted to an interference with private life within the scope of Article 8(1) of the Convention, the requirements were "in accordance with the Law" and pursued the legitimate aims of "the prevention of crime and the protection of the rights and freedoms of others". In determining whether the measures were generally proportionate, the Court found that the notification requirements - giving the police information - were proportionate when considered against the importance of protecting individuals from serious forms of interference.

16. The structure of the Law is that these requirements continue indefinitely unless the Court orders otherwise on the application of the person subject to the requirements, made pursuant to Article 5. It would appear that the possibility of an indefinite notification requirement would be incompatible with Article 8 of the European Convention on Human Rights, in the absence of any mechanism for the review of the justification for continuing the requirements in individual cases - see R(JF)-v-Secretary of State for the Home Department [2010] 2 AER 707, a decision of the Supreme Court on the comparable provisions in the Sexual Offences Act 2003. For that reason, it was contended by Crown Advocate Pedley that the Court should read down the Law so as not to apply the notification requirements indefinitely but instead apply them for a period of only 5 years. We decline to read down the legislation in this way. As set out below, the decision of the Supreme Court was reached because there was no mechanism under the English legislation for the review of an order even if the person subject to the notification requirements posed no significant risk of re-offending. This is not the case in Jersey by virtue of the provisions of Article 5 of the Law which does allow the Court to review the applicability of the notification requirements. It may well be necessary for the Court to consider very carefully any extension of the period provided under Article 5(5) of the Law, the effect of which is to stifle any review of the continued application of the notification requirements to an offender, bearing in mind the decision of the Supreme Court referred to. The statutory minimum period, subject to variation downwards for exceptional reasons, seems to us to be a good starting point as the appropriate period generally unless there is clear evidence that the offender poses a risk of sexual harm to the public or particular individual(s) for a longer period. The provisions of the statute appear to us to be clear and not subject to the criticism made of the English statutory provisions by the Supreme Court. It follows that our statutory provisions should be applied and read down only to the extent set out in AG-v-Velosa and in this judgment.

17. It is clear from Article 13(2) of the Law that the Royal Court is conferred a discretion as to whether it should order that a person convicted of a relevant sexual offence before the commencement of the Law should become subject to the notification requirements. The legislation provides no guidance as to what the Royal Court should or should not take into account in deciding whether to make an order of this kind. In the circumstances we think it would be useful to set out the factors which would be material.

18. Unfortunately there is in this respect little guidance to be obtained from looking at the UK legislation and decisions made thereunder. An important distinction between our legislation and Section 82 of the Sexual Offences Act 2003 is that the latter prescribes the period of notification according to the description of the relevant offender, whereas the Law, leaving aside the special provisions of Article 4, prescribes only that the Court can limit the period before which an application to lift the notification requirements can be made. In other words, pursuant to our legislation, the result of the imposition of the notification requirements is that they all continue for an indefinite period, subject to an order of the Court, and of course subject to any review of the kind which is contemplated in R(JF)-v-Secretary of State (supra).

19. There is similarly no assistance to be gained from the provisions of Sections 97 et seq of the 2003 Act which enable a Chief Officer of Police to apply to any Magistrate's Court for an order in respect of a defendant where the conditions of the statute are met. In these cases, the Court has no discretion to exercise, but, provided the conditions are met, must make the notification order. The limit to which these provisions are helpful is that they indicate the intention of Parliament to ensure that the notification provisions apply where a person has been convicted abroad of a relevant offence provided that the conviction occurred on or after 1^st September, 1997, and provided also that the notification period as prescribed in Section 82, as modified appropriately, has not expired.

20. In this context however it is useful to refer to a decision of the High Court of Northern Ireland in Re Gallagher's application for judicial review [2003] NIQV 26 and the reasoning of Kerr J, which was treated as being "of obvious relevance" by Lord Phillips in his judgment in R(JF)-v-Secretary of State (supra). The relevant paragraphs of the judgment of Kerr J appear to me to be these:-

"[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 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.

[24] The gravity of sex offences and the serious harm that is caused to those who suffer sexual abuse must weigh heavily in favour of a scheme designed to protect potential victims of such crimes. It is important, of course, that one should not allow revulsion to colour one's attitude to the measures necessary to curtail such criminal behaviour. A scheme that interferes with an individual's right to respect for his private and family life must be capable of justification in the sense that it can be shown that such interference will achieve the aim that it aspires to and will not simply act as a penalty on the offender.

[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. If individual offenders were able to obtain exemption from the notification requirements this could - at least potentially - compromise the efficacy of the scheme.

[26] By the same token the fact that the notification requirements persist indefinitely does not render the scheme disproportionate. While this is unquestionably an inconvenience for those who must make the report, that inconvenience must be set against the substantial benefit that it will achieve of keeping the police informed of where offenders are living and of their travel plans so that further offending may be forestalled both by rendering detection more easily and deterring those who might be tempted to repeat their offences."

21. This analysis of the principles underpinning and justifying the notification requirements was endorsed by Sir Igor Judge P in Forbes-v-Secretary of State for the Home Department [2006] EWCA Civ 962, [2006] 4 AER 799.

22. These principles are consistent with the purpose of the Law which is to protect potential victims from sexual harm. We similarly endorse these statements of principle as underpinning the notification requirements in the Law. At the same time, we note that Article 13 (2) affords us a discretion, as indeed does Article 15. In our view, the exercise of discretion should take place against the background of those principles, subject to this. We note in particular that the legislature has decreed that all those who commit relevant offences are subject to the notification requirements contained in the Law, regardless of whether there is established any risk of re-offending, where the conviction occurs after the commencement date. This is a signal as to the importance attached by the legislature to the imposition of these requirements and, though the Court is afforded a discretion under Article 13(2), we consider we should approach the exercise of that discretion on the premise that it should be exercised to apply the notification requirements unless there is good reason not to do so. Nonetheless, in R(JF)-v-Secretary of State (supra) the Supreme Court accepted the conclusion of the Divisional Court and the Court of Appeal that there were some people who were subject to notification requirements who could clearly demonstrate that they presented no risk of re-offending or of whom it could confidently be said that there was no risk that they would commit a sexual offence. The Supreme Court noted that it had no evidence that would demonstrate that it is not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who posed no significant risk of re-offending. As the proportionality of the scheme depends upon its potential to protect victims of future sexual offences, it seems to us to follow that some exception needs to be made where there is evidence that the offender poses no significant risk of re-offending. Indeed, this is consistent with the power conferred on the Court under Article 5(5) of the Law to rescind the application of the notification requirements to an offender if satisfied that (s)he no longer poses a risk of sexual harm to the public or to any particular person(s).

23. The Court therefore should not exercise its discretion under Article 13(2) or under Article 15 where an offender satisfies the Court, clearly to the civil standard as this is a civil matter, that the risk of him 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.

24. It is very unsatisfactory that the Crown should have submitted no evidence to the Court on this occasion in advance of the hearing other than the sentencing remarks of the Court in May 2010, and a copy of a police document which contains hearsay material, and is probably a part of the records of the police as a public authority for the purposes of Article 11 of the Civil Evidence (Jersey) Law 2003. By Article 3 of that Law, the hearsay evidence is admissible, but there is no sign of any notification to the defendant that reliance might be placed upon this document, and all the considerations which are set out in Article 6 of the said legislation apply to be taken into account for the purposes of considering the weight which should be given to it. In our view it would have been preferable if at the very least the Crown had put before the Court all the background reports which existed at the time sentence was passed in May 2010. Although not much time has elapsed since then, it would also have been desirable to have the reports updated to reflect any changes in circumstance which have taken place during the interval, even if the updates included only a statement that there were no such changes.

At the hearing, the Crown adduced viva voce evidence from Detective Sergeant Latham and Mr Simon Davies a retired police officer in the United Kingdom with considerable experience in offender management and who joined the States of Jersey police as a civilian officer in December 2010. We think it is fair to summarise their evidence in this way. There have been numerous contacts between the Public Protection Unit and the defendant since the date of conviction but these contacts have not, in the view of Detective Sergeant Latham, been meaningful and the defendant has not satisfactorily co-operated to the extent that the officers were able to offer any definitive risk assessment. Indeed Mr Davies has had no contact with the defendant at all, neither has he sought to solicit any contact. Detective Sergeant Latham confirmed that although the officers have not been allowed access to the defendant's home address to assess the risk, no-one has ever formally asked him to permit such access. Concern was expressed that the defendant was in denial, which made him a bigger risk, and that the extent of that denial was demonstrated by his efforts to have the 1994 Law amended.

25. Mr Roberts pressed us at length as to why he should not be the subject of notification requirements. The reasons relevant to this, as opposed to the Article 10 restraining orders, seemed to us to be these:-

(i) He had not viewed any images of bestiality; he did not know he had made the thumbnail images and indeed he denied committing the offences knowingly. He did not solicit any of the images in question. He had not applied the suspicious identification tags to the films - this had been done by the maker of the films. He downloaded them in bulk with other material which was lawful and did not read the tags on downloading. His offences were thus not serious.

(ii) The specialist wiping software had been installed but was not functional.

(iii) He was wrongly accused of taking indecent pictures of his daughter. These were withdrawn two weeks before trial.

(iv) A police officer involved in the investigation assaulted his son.

(v) He had never physically or sexually harmed anyone and he wanted to live a normal unimpeded active life.

(vi) His children had been removed from the Child Protection Register and he had not heard from the Children's Service for many months.

(vii) He had a clean record until 2010. He was not a serious risk but a family man with a conviction for an internet offence. The police had harassed him over the last months, and were incompetent. They could have carried out a risk assessment and he had met them voluntarily many times. He agreed he would willingly co-operate in a risk assessment.

(viii) While he supported the need for a sex offender's register, it would be disproportionate to put him on it, not least because that would increase the risk to him that someone would falsely accuse him of an offence.

The defendant made a number of criticisms of the proposed restraining orders too. We do not consider it is necessary to deal with them here for reasons which will shortly become obvious.

26. We have considered the evidence against the legal test described in paragraph [23] above in relation to the exercise of our discretion. We do not think that the risk of further sexual offending can be discounted to the point that the imposition of the notification requirements is unjustified and accordingly we order that the defendant be subject to them. In our view, the defendant is in denial of his guilt to the extent that he does not appear to believe he has done anything wrong. He does not seem to accept that the damage he has done by making the images in question is to fuel the market for this pernicious material and therefore to cause actual sexual harm to one or more children somewhere in the world, even if not to the girl next door.

We emphasise that though in some respects similar, the test we apply on the exercise of discretion in relation to the notification requirements is not the same test as is applied under Article 10 of the Law in relation to the restraining obligations, as we set out below, not least because the point of departure for the exercise of discretion is different.

27. Article 13 does not require the Court to specify a period that must expire before an application under Article 5(5) can be made for an order that the defendant no longer be subject to the notification requirements. If we do not so specify, it would appear from the language of Article 5(5) that the defendant will have no right to make any such application. As a matter of principle, the Court should therefore specify such a period. Mr Pedley contends that the Court should apply the same notification period as exists in England and Wales pursuant to Section 82 of the 2003 Act, but as has been mentioned earlier, that provision stipulates the notification period and, by contrast with our own legislation, does not stipulate the period before which no application can be made. In other words the approach taken in the 2003 Act is to fix arbitrary limits rather than confer a discretion on the Court to lift the notification requirements.

28. It does not follow that simply because the Court stipulates a period of five years (or any other period) during which no application can be made for the notification requirements to be rescinded, that an application will be made for that purpose immediately thereafter. It is also relevant to note that even if an application is made that the person should no longer be subject to the notification requirements of the Law, there is no requirement upon the Court to grant that application. Indeed Article 5(6) makes it plain that the Court must not make such an order unless satisfied that the applicant no longer poses a risk of sexual harm to the public or any particular person or persons. This is a high threshold for any applicant to pass, but it is one that the legislature has specifically included in the legislation. The Court dealing with any such application must consider it with due regard to the proportionality of continuing the application of the notification requirements, having regard to the principles set out above. In the circumstances, in our view it is sufficient to determine in this case that no application to lift the notification requirements may be brought within the period of 3 years from today's date. We do not think the statute requires us to have an exceptional reason as this is a retrospective application but if we needed one, it lies in the preponderance of evidence that the defendant is at a low risk of re-offending.

Restraining Orders

29. I turn next to the application for restraining orders pursuant to Article 10 of the Law.

30. Article 10(4) of the Law clearly provides a preliminary threshold before the Court's jurisdiction to make a restraining order arises. The Crown must prove on the balance of probabilities that the person poses a threat of serious sexual harm to the public or particular persons.

The threat itself does not have to be a serious threat but it seems to us that it must in practice be a significant threat. The reason for this is that the restraining order must be necessary to protect the public or particular persons from serious sexual harm from the offender. If the threat were insignificant or minor, then in most cases it might not be necessary to protect against it.

31. The power to make restraining orders under Article 10 of the Law, although wider as it permits positive as well as prohibitive orders, is in many respects not dissimilar to the power conferred on the Court by Section 104 of the Sexual Offences Act 2003 to make a Sexual Offences Prevention Order. This power arises if the Court is satisfied that:-

"It is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the Defendant."

32. We note that in R-v-Smith [2009] 2 Cr. App. R. (S.) 110, it was held in the Court of Appeal in England and Wales that a prohibition on the offender denying police officers access to his home in order to check that other prohibitions in the order relating to access to, and use of, equipment capable of connecting to the internet and viewing images of pornography were being complied with was, without being objectionable in principle, not justifiable on the particular facts. In R-v-Thompson, Unreported, [2008] EWCA Crim 3258, the Court of Appeal quashed a similar prohibition in a more serious case for being unreasonably wide and intrusive, even though the powers of entry granted to the police were limited to the hours of 8am to 8pm. The Court of Appeal held that it was not the sort of case in which the nature of offending was such that it was necessary to monitor the offender's compliance by such an intrusive condition.

33. We have had cited to us the case of R-v-Hemsley [2010] 3 AER 965. In that case the Court of Appeal was considering the power in Section 104 of the Sexual Offences Act 2003 to make a Sexual Offences Prevention Order in circumstances where the offender had pleaded guilty to 23 counts of making an indecent photograph or pseudo photograph of a child. Of the 6,592 images discovered on the offender's computer, 6,565 were at level 1, 20 at level 2, 2 at level 3, 5 at level 4 and none at level 5. In addition there were 71 moving images, 24 at level 1, 18 at level 2 and significantly 29 at level 4. The offender was of clean character and at the time of the Court of Appeal decision aged 27. The Court of Appeal noted that there was no material tending to show that the applicant was progressing towards offending directly against children. The judgment of the Court, delivered by Judge Cook QC, the Recorder of Cardiff, summarised the principles against which the Court subsequently considered and quashed the Sexual Offences Prevention Order that had been made in the lower Court:-

"[4] Key words or phrases in that statutory provision [Section 104], often overlooked are "necessary", "for the purpose of protecting" and "serious harm". We also consider that it is essential, bearing in mind that a breach of a SOPO is a criminal offence carrying a maximum sentence of five years imprisonment by virtue of S113(2) of the 2003 Act, that such orders are clear on their face, capable of being complied with by the subject thereof without unreasonable difficulty and/or the assistance of a third party and free of the real risk of unintentional breach. Such orders need to be carefully drafted and bearing in mind that, although not the case in this instance, they are often made against those of limited education, simplicity is a virtue. Against that background we find much to criticise in this SOPO."

34. The language of Article 10(4) is sufficiently similar that we can indicate that we find the dicta above helpful and we adopt it. The Court must be satisfied that it is necessary, for the purpose of protecting one or more persons from serious sexual harm from the offender that the order be made. Against that background we now consider the orders requested.

35. We also note that the orders which the Crown seeks, which are summarised in paragraph 7(ii) above would, if implemented, also amount to an interference with the Article 8 right to respect for his private and family life which the defendant is entitled to enjoy under the European Convention on Human Rights. In considering making these orders, the Court must also consider whether the provisions of Article 8.2 of the Convention apply so as to justify the interference with these rights by the making of the orders sought by the Crown.

36. The case for the Crown, stripped to its bare essentials, amounted to this. The defendant, it was claimed, was a person with a low risk of re-offending according to the static Risk Matrix 2000 test. Statistically this gave a 5% chance of re-offending over a 15 year period in a violence case, a 7% chance in a sexual case, and a 10% combined risk. However because the defendant had not co-operated appropriately, it had not been possible to carry out the Dynamic risk assessment under the 2007 Hanson/Harris test. That failure to co-operate with supervision was a dynamic risk factor in itself which substantially increased his risk. Furthermore the defendant's use of the deleting/disguising software previously justified the making of the order described at paragraph 7(ii)(a) above.

37. The difficulty with these submissions is that the Court must be satisfied as to the relevant risk on the balance of probability before it makes the restraining order, and to say such order should be made because the relevant risk could not otherwise be ascertained puts the cart before the horse. On the evidence put before it, the Court is not satisfied that it is necessary to make any of the restraining orders. In reaching this conclusion the Court has had particular regard to the assurance given by the defendant that he will voluntarily co-operate in the making of the relevant assessment. We add that it is very much in his interests to do so because, if he is to apply successfully to have the notification requirements disapplied to him, Article 5(6) of the Law requires that the Court then be satisfied that he "no longer poses a risk of sexual harm to the public or any particular person or persons".

38. We add that there are other objections to the said orders proposed. The breach of the orders, if made, makes the defendant liable to 5 years imprisonment or a fine. It is therefore essential that any orders made are framed with sufficient precision that the defendant knows if he is in breach. An expression such as "at any reasonable time" is not sufficiently precise. In argument Crown Advocate Pedley submitted this could be replaced with "between the hours of 8am and 8pm". Even if we had given leave for such replacement, we would not have considered such an order proportionate.

39. The proposed order referred to at paragraph 7(ii)(b) would require the defendant to make himself available at his notified address for unannounced visits. Unless he remained in the premises for the entire time, this would not appear to be practicable, and it would be obviously unreasonable to require him to do so.

40. The proposed order referred to at paragraph 7(ii)(c) above would give the police full rights to entry upon the premises without any of the normal protections a citizen has before such rights were exercised. The evidence put before the Court came nowhere near justifying such an order.

41. For these reasons the application for the restraining orders under Article 10 of the Law is refused.

Anonymity

42. The Court was addressed at some length in relation to concerns expressed over the fact that these proceedings took place in public. This also gave rise to the issue as to whether or not a judgment which might be pronounced should be published giving due anonymity to those concerned. The facts are that on 14^th January, 2011, the Representation of Her Majesty's Attorney General was presented in the Royal Court during the course of public business. The Court then ordered that a copy of the representation and supporting documentation should be served personally on the respondent summoning him to appear before the Court on 28^th January at 10am. The fact of the representation and the name of the respondent was given some publicity in the media. On 28^th January at 10am, again during the course of public business, the Court adjourned the matter to 23^rd February for argument. With rather less publicity, the Court's order attracted some media attention on that day. There were in fact on 14^th and 28^th January three other applications made by the Attorney General under the Law, all of which received some publicity, and counsel for one of the offenders raised the issue of anonymity when he appeared on 28^th January.

43. It may be that there will be circumstances where persons are convicted of relevant offences after the Law comes into force where it would be appropriate to consider applications for restraining orders under Article 10 in private. However, where the Court is dealing with the relevant period which must expire before any application to have the notification requirements disapplied to an offender pursuant to Article 5 of the Law, in nearly all cases it appears to us the matter will be dealt with in public as a civil process immediately before the sentencing of the offender takes place, as required by Article 5(1) of the Law. Different considerations however may apply in connection with applications for the notification requirements to be retrospectively applied to the offender pursuant to Article 13(2). It is said, for example, that applications under Article 13(2) are not intended to be punitive, and indeed cannot be punitive without infringing Article 7 of the Human Rights (Jersey) Law 2000, and further publicity is one of the potential consequences of registration should the hearings be held in public. 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 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 anonymising the offender.

44. The Court clearly has jurisdiction to sit in camera, and/or to publish its judgment in such a way as provides anonymity to a party. A full discussion of the principles to be applied is to be found in JEP Limited-v-Al Thani [2002] JLR 542, which we adopt.

45. In the circumstances of this case, particularly given the fact that publicity has already been given to this application, and that the criminal proceedings were fully reported only some 12 months ago, the Court considers in this case that it is appropriate not only that it sat in public but also that the judgment should be published without anonymity.

46. There is no need for representations of this kind to be presented to the Royal Court during public business on a Friday morning. Rule 6/38 of the Royal Court Rules 2004, as introduced by the Royal Court (Amendment No.11) Rules 2010 confers on the Bailiff a jurisdiction to make in chambers orders regarding the service of the proceedings, the convening of the parties and any order incidental thereto. It follows that the Court can be asked in chambers to make an order convening an offender before the Court for a particular day, and there is no reason why, when making that order, the Court should not at the same time order that the first hearing of the representation should take place in private. The first hearing will be an occasion when the Court can give directions as to the filing of further pleadings, or any other procedural directions which may be necessary for the convenient disposal of the application, and at that stage the Court can receive an application from either the Attorney General or the offender for the proceedings to be heard in private. That application can be adjudged on its merits. The procedure which is set out above is the procedure recommended by this Court to enable issues of privacy and anonymity to be ventilated in private at an early stage of the proceedings and adjudicated upon.