Jersey Unreported Judgments

[2011]JRC055

ROYAL COURT

(Samedi Division)

11^th March 2011

Before     :

M. C. St. J. Birt, Esq., Bailiff, and Jurats de Veulle and Kerley.

The Attorney General

-v-

T

S

R

Application by the Attorney General under Articles 13(2) and 10 of the Sex Offenders (Jersey) Law 2010.

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

Advocate M. L. Preston for T, S and R.

JUDGMENT

THE BAILIFF:

1.        On 25th February the Court sat to hear applications by the Attorney General under Articles 13(2) and 10 of the Sex Offenders (Jersey) Law 2010 ("the Law") in respect of T, S and R, all of whom were convicted of sexual offences before the Law came into force.  We shall for convenience refer to applications in respect of offenders convicted before the commencement of the Law as retrospective applications. 

2.        This is the second retrospective application since the Law came into force.  The first was in the case of AG-v-Roberts [2011] JRC 050, which was the subject of a detailed judgment delivered by Bailhache, Deputy Bailiff setting out the background, the relevant legislation and some of the applicable principles.  We respectfully agree with the guidance to be found in that judgment. 

3.        In briefest outline the scheme of the Law is as follows:-

(i)        Notification:-

(a)       Where a person is convicted of a sexual offence (as defined in the Law) after the commencement of the Law, he becomes subject to the notification requirements of the Law.  Subject only to the limited power of exemption conferred by Article 4, the Court has no discretion in the matter and the notification requirement follows automatically upon a conviction. 

(b)       Where a person was convicted of such an offence before the commencement of the Law, the Court, following an application by the Attorney General, has a discretion to order that the person becomes subject to the notification requirements. 

(c)       Unlike in the United Kingdom, where the period of the notification requirement is fixed by statute depending upon the sentence passed, all notification requirements under the Law are unlimited in time.  However, the Court must specify a period that must expire before the offender may apply for revocation of the notification requirement and, pursuant to Article 5(5) the offender may apply for revocation at any time thereafter.  He may not apply earlier.  On any such application it will be up to the Court to decide on the evidence then available whether or not the notification requirement should be revoked. 

(d)       The Law does not specify any threshold for imposing a retrospective notification requirement but, given the fact that imposition of the requirement is automatic for all convictions after the commencement of the Law, the threshold must be regarded as being very much lower than in the case of a restraining order and an order should be made unless the risk of the offender committing further sexual offending can be discounted to the extent that the imposition of the notification requirement would be unjustified. 

(ii)       Restraining orders:-

(a)       Article 10 authorises the Court to make an order (a restraining order) prohibiting the offender from doing anything described in the order or requiring the offender to do something described in the order. 

(b)       The Court has jurisdiction to make a restraining order in respect of convictions both before and after the commencement of the Law. 

(c)       In both cases the decision is discretionary but the Court may only make such an order if it is satisfied on the balance of probabilities that the person poses a threat of serious sexual harm to the public or to any particular person or persons and that the making of the order is necessary to protect the public or any particular person or persons from serious sexual harm from the offender. 

(d)       The Court must specify the period of any restraining order it makes. 

T

4.        With that brief introduction, we turn to consider the individual cases.  T is now 54.  He was sentenced to 4½ years' imprisonment in 2007 for offences of indecent assault and procuring acts of gross indecency in respect of a young girl over a number of years when she was between the ages of 7 and 13.  This Court has been provided with the summary of facts provided to the sentencing court together with other papers supplied at the time, such as the social enquiry report, a psychological report and an assessment from the Lucy Faithful foundation.  We do not think it necessary to refer to the offending in any further detail other than to say that the assaults involved oral sex and digital penetration and the gross indecency involved procuring her to touch his penis as he masturbated.  T was released from prison in April 2010. 

5.        We were provided with risk assessments carried out by the States of Jersey Public Protection Unit.  The main work was undertaken by Mr Simon Davies, who is a self employed public protection consultant specialising in the management of sexual offenders in the community and who has been employed by the States of Jersey Police to advise on retrospective applications.  He was a UK police officer for 30 years but in the latter part of his career he specialised in the area of public protection.  He was trained in the use of the risk assessment tools known as Thornton's Risk Matrix 2000 and the Hanson and Harris 2007 Stable and Acute Assessment Tools.  He told the Court that the Thornton Risk Matrix is an actuarial tool that gives a predictive scale of reconviction rates for further sexual offences (S scales), for non-sexual violent offences (V scales) or for violent non-sexual or sexual offences (C scale).  The tool is entirely actuarial and is based on objective factors such as previous offending, age etc.  It is a static measurement which does not change save for any change in the factors mentioned e.g. a further conviction. 

6.        Mr Davies said that the Hanson and Harris Assessment takes account of a number of additional factors personal to the offender and often involves an interview with the offender.  It predicts the likelihood of re-offending rather than of reconviction.  Because it takes into account additional factors, it may vary from time to time.  For example if an offender has lost his home and is suddenly living alone under stressful conditions consuming more alcohol than he should, this would be a factor which would increase the risk as measured by the Assessment.  Such matters are not taken into consideration in the Thornton Risk Matrix. 

7.        T was assessed as being at high risk of reconviction for a sexual offence under the Thornton Risk Matrix 2000 test and also at high risk of re-offending under Hanson and Harris. 

8.        The Attorney General sought an order that T be subject to the notification requirement and that the period which must expire before he can apply for its removal should be 5 years.  He also applied for certain restraining orders for a period of 5 years. 

9.        On behalf of T, Advocate Preston did not oppose the notification requirement or the restraining orders, although he made certain observations on the detailed wording of the restraint orders, which we have accepted where appropriate. 

10.      We are quite satisfied in accordance with Article 10(4) that T poses a threat of serious sexual harm to the public.  The question then arises as to whether the restraining orders sought are necessary to protect the public from serious sexual harm from the offender.  The case of R-v-Hemsley [2010] EWCA Crim 225 emphasised that, in relation to the making of Sexual Offences Prevention Orders (which have many similarities with restraining orders in this jurisdiction) the courts in the United Kingdom must bear in mind that the key words or phrases in the statutory provision are "necessary", "for the purpose of protecting" and "serious harm".  The court in that case also emphasised that orders must be 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 needed to be carefully drafted and simplicity was a virtue, particularly bearing in mind that they were often made against those of limited education.  In our judgment similar principles are applicable in the case of restraining orders. 

11.      We have borne these principles in mind.  We are satisfied that we should, for the purposes set out in Article 10(4), make restraining orders against T in the following terms for a period of 5 years:-

"1. That the respondent be prohibited from initiating any verbal or physical contact with any female whom he knows or believes to be under the age of 16 in a public place without good cause, details of which he will provide on request to a police officer or a probation officer. 

2. That he is prohibited, whilst on licensed premises, from buying alcohol that is consumed by, or intended for consumption by, any female person whom he knows or believes to be under the age of 18 years. 

3. That he be prohibited from remaining in or on any property or vehicle where there is unsupervised contact with any female whom he knows or believes to be under the age of 16 years, save for inadvertent or unavoidable contact."

12.      As to the notification requirement, Advocate Preston did not oppose a period of 5 years as being the period during which T cannot apply for revocation of the requirement and we so order. 

S

13.      S is now 80.  He was convicted in 2009 of 8 offences of indecent assault against 3 females whose ages varied from 14 to 16.  The offences were carried out over approximately a 3 year period from 1970 to 1973.  The children concerned were in Haut de la Garenne, where he was a live-in house parent.  We do not need to describe the assaults in detail.  Suffice it to say that, in relation to the first victim, he was convicted of two counts of touching her breasts through her clothing.  As to the second victim, he was convicted of three counts of indecent assault involving touching her breasts and inner thigh through her clothing and touching her neck with his mouth.  As to the third victim, he was convicted of two counts of touching her breasts through her clothing.  All of the counts were specimen counts.  He was sentenced to 2 years' imprisonment and was released in January 2011. 

14.      The Attorney General does not seek any restraining order in the case of S as he does not argue that S poses a threat of serious sexual harm to anyone.  But he does argue that S should be subject to the notification requirement, with the period before which he can apply for revocation being one of 3 years. 

15.      The evidence from the Police Public Protection Unit was to the effect that S was at low risk of reconviction of a sexual offence.  It was explained to us that the policy of the States Police is that retrospective applications will not be brought in respect of offenders assessed as being at low risk of re-offending unless they are still serving a prison sentence.  The decision in relation to S was taken before his release from prison and accordingly the present application was brought as falling within the policy guideline.  However, S was released in January and Advocate Pedley accepted that, if the matter had been considered after S's release, no application would have been brought as S would have fallen outside the policy guidelines. 

16.      As we have said earlier in this judgment and as was said by the Court in Roberts, the threshold for imposing the notification requirement, even in the case of retrospective applications, is not a high one given that the requirement is automatic where conviction occurs after the commencement of the Law.  However, given that the risk of re-offending is low, that S is now 80, that the offending was nearly 40 years ago since when S has not re-offended despite not having been subject to any notification requirement throughout the period, and given that the application would not have been brought if the Police had considered S's case after his release and that he has now been released, the Court is satisfied that the risk of S re-offending in relation to a sexual offence is so low that imposition of the notification requirement cannot be justified. 

17.      We therefore make no order in respect of S. 

R

18.      R was sentenced to 3½ years' imprisonment in 2007 after having pleaded guilty to charges of indecent assault, gross indecency, attempted sodomy and possession and distribution of indecent photographs in relation to a boy who was aged 14.   He was released at the end of 2008. 

19.      In his case the Attorney General sought certain restraining orders as well as the imposition of the notification requirement with the relevant period for application for discharge being 5 years. 

20.      We do not propose to say anything further about this case at present.  Having heard somewhat conflicting and confusing evidence about the level of risk and the different types of risk assessments carried out, the Court decided that it would wish to receive a report from the Probation Service pulling together the various assessments already carried out and updating the risk assessment in the light of the most recent developments.  The matter was therefore adjourned for a short period in order that such a report could be produced. 

Nature of the evidence

21.      It is appreciated that these are amongst the first retrospective applications under the Law and the various agencies are feeling their way.  Nevertheless, we have to express some disquiet at the confusing nature of some of the evidence put before the Court, at the production of last minute material, and at amendments to the nature of the orders sought being made very late in the day.  As it happens, no prejudice was caused in the cases of T and S, but we can imagine that a respondent could be faced with difficulties in facing such additions or amendments at such a late stage and would quite reasonably need to apply for an adjournment.  This would not be in anyone's interests.  

22.      We are also surprised not to have received anything from the Probation Service.  It had been the Court's understanding that the Probation Service would be preparing reports in all cases of retrospective applications.  As it happened, Mr Cutland, the Assistant Chief Probation Officer was in court and was able to give evidence to us in this respect.  He explained that the Service had certainly been expecting to prepare reports and had taken on staff accordingly.  He did however emphasise that the Service had been working closely with the Police Public Protection Unit and indeed some of the risk assessments had been carried out jointly. 

23.      In our judgment the Attorney General should in future ensure that there is a report from the Probation Service in all retrospective applications.  This is not simply because the Probation Service is experienced at writing clear reports in simple language and in applying the various risk assessment modules, but also because the Service will often be in the best position to assist the Court.  Thus it will probably have been in contact with the offender during the course of his sentence as part of the through-care plan and it will in many cases have continued to have contact with the offender following his release.  It will be in the best position to give the Court the most up to date and helpful information. 

Anonymity

24.      Each applicant applied for his case to be heard in private and for any judgment to be published in an anonymised form.  We were informed that the Probation Service supported these applications and Crown Advocate Pedley said that, whilst the Crown remained neutral, he could well understand the arguments in support of the applications. 

25.      The principles as to when the Court may sit in private are to be found in two Jersey cases, namely G-v-A [2000] JLR 56 and Jersey Evening Post-v-Al Thani [2002] JLR 542.  The question of anonymity in relation to retrospective applications under the 2010 Law was also touched upon at paras 42 - 46 of the judgment in AG-v-Roberts referred to earlier. 

26.      One begins with the strong presumption that proceedings should take place in public and there must be compelling reasons to depart from this principle.  That principle is also reflected in Article 6 of the European Convention on Human Rights which confirms that, in the determination of his civil rights and obligations, everyone is entitled to (amongst other things) a public hearing.  However, consistently with the jurisprudence, Article 6 goes on to recognise that the press and public may be excluded "... in the interests of morals, public order or national security in a democratic society where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."  The reference to the protection of the private life of the parties enables the Court to take into account Article 8 of the Convention requiring respect for the private life of persons. 

27.      We find it difficult to conceive of circumstances where an application under the Law in respect of an offence committed after its commencement should be heard in private, because such applications will almost invariably take place at or near the date of sentencing, which will always be in public.  Similarly, where the offender is still serving a sentence of imprisonment, it seems unlikely that there would be justification for the matter to be heard in private, although naturally consideration would need to be given to the facts of individual cases. 

28.      However, where a retrospective application is made in respect of an offender who has served his prison sentence and is now back in the community, different considerations may arise.  For example, the offender may have successfully rehabilitated himself after serving his sentence and the sudden publicity may undo the progress he has made.  Alternatively, he may be undertaking therapeutic work with the Probation Service which would be adversely affected by the stress of publicity.  The Court will in these cases have to balance the Article 8 rights of the offender and his family against the principle of public justice referred to earlier.  The circumstances will vary considerably from case to case and it is impossible to lay down any guidelines. 

29.      In relation to T, he was released nearly a year ago.  He has been subject to verbal abuse when his identity has become known and his daughter is in very considerable trouble, which has led to care proceedings being instituted.  We have received a medical report to the effect that the publicity of a retrospective application might well jeopardise his rehabilitation and may also threaten the already fragile situation of his daughter.  In all the circumstances, we decided to accede to Advocate Preston's application that the hearing be in private and the judgment anonymised. 

30.      In the case of S, he was released in January.  In his case we also have a medical report to the effect that the publicity which has already been given to his case is having an adverse effect on his health and indeed the stress is causing a deterioration in his health.  Given his age and given the factors which led the Court not to impose a notification requirement, the Court felt that it would be disproportionate for his health and family life to be adversely affected and that accordingly his case should also be heard in private and the judgment anonymised. 

31.      In relation to R, he was released from prison back in 2008.  We have received a report from the Adult Mental Health Services team.  He has suffered prolonged feelings of depression and hopelessness following his release and it is suggested that the potential publicity would compound his difficulty in reintegrating into wider society.  He has had suicidal thoughts.  It is pointed out that publicity surrounding the current application could lead to his being targeted by others and he is thought to be at high risk of death, whether by accident (contributed to by alcohol) or from suicide.  In the circumstances, the Court acceded also to his application that the matter be heard in private and the judgment anonymised. 

32.      However, we were conscious that some publicity had been given to the earlier stages of all these applications and accordingly we specifically gave leave to the media to apply to set aside the orders for anonymity should they think fit. 

Authorities

Sex Offenders (Jersey) Law 2010.

AG-v-Roberts [2011] JRC 050.

R-v-Hemsley [2010] EWCA Crim 225.

G-v-A [2000] JLR 56.

Jersey Evening Post-v-Al Thani [2002] JLR 542.

European Convention on Human Rights.