Application under Article 5(5) of the Sex Offenders (Jersey) Law 2010
Before : |
A. R. Binnington, Esq., Commissioner, and Jurats Austin-Vautier and Opfermann |
P
-v-
The Attorney General
Advocate A. E. Binnie for the Applicant.
Advocate K. A. Ridley for the Attorney General.
JUDGMENT
THE COMMISSIONER:
1. On 1 October 2024 we heard an application for an order, pursuant to Article 5(5) of the Sex Offenders (Jersey) Law 2010 ("the 2010 Law"), that the Applicant should no longer be subject to the notification requirements under the Law. At the conclusion of the hearing we granted the application and the following are our reasons for doing so.
2. In 2012 the Applicant appeared before the Inferior Number of the Royal Court for the purposes of sentencing in relation to two Indictments. The First Indictment consisted of 31 counts of making an indecent photograph of a child contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994. The Second Indictment contained 2 counts of possession of a controlled drug contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978. These were both small quantities of cannabis for personal use.
3. In summary, the case against the Applicant was that he admitted downloading legal pornography from the internet. He denied intentionally accessing indecent images of children and entered not guilty pleas to these offences. He was unanimously convicted of all 31 Counts at trial.
4. In respect of the First indictment, the Court sentenced the Applicant to 240 hours of Community Service (equivalent to 18 months imprisonment) and a 12-month Probation Order in respect of all Counts on the First Indictment. He received an additional 20 hours' Community Service (consecutive to the above) in relation to the second Indictment.
5. The Court also ordered that a period of 5 years must elapse before the Applicant be permitted to apply under Article 5(5) of the Sex Offenders (Jersey) Law 2010 (the "Law") to lift the Notification Requirement under Article 6 of the 2010 Law.
6. The 5-year minimum period expired in 2017, and the Applicant no longer wishes to be subject to the notification requirements under the 2010 Law.
7. The first matter the Court needed to determine was whether or not the application should be heard in public or in private.
8. The matters which the Court might consider when considering where the balance lies on such an application were helpfully set out by the Royal Court in A v AG [2020] JRC 004 and approved by the Court in S v AG [2023] JRC 140. The latter judgment made clear that the burden of showing that the needs of justice require the Court to sit in private lies on the applicant.
9. The Court recognises that there is a public interest in those who no longer pose a risk of sexual re-offending being removed from what is colloquially described as a sex offenders' register. Otherwise, the task of the Offender Management Unit of the States of Jersey Police ("OMU") becomes unmanageable in that the officers contained within that unit will ultimately be spending a substantial part of their time monitoring persons who no longer present a risk of this nature to the public. If applications for release from notification requirements were publicised in every case, then that would deter applicants. All applications are in any event scrutinised carefully by both the OMU and the Probation Service.
10. There are also other circumstances which may, in addition to the general factors we have just considered, operate in favour of a privacy order:
(i) The risk of publicity might destabilise an offender which has the potential to make further offending more likely and that there is a public interest in ensuring that this does not occur.
(ii) There is a need for the community to recognise that once an offender has served his sentence, both the community and the offender and his family need to move forward.
11. In this case, we were asked to take into account the fact that there was likely to be an adverse effect on the Applicant's personal life, the lives of his children who are aged [redacted] and [redacted], and potentially the mother of the children. The Applicant's children have been in the Applicant's full-time care since May 2024 pursuant to an Interim Care Order.
12. There had been some negative social media following the Applicant's conviction and as the Applicant has recently moved to new accommodation, more suitable for the children, he had expressed concern that this could be disrupted if he were to be subject to adverse publicity and identification by his neighbours. This concern was also felt in relation to attendance at playgroups and other activities for the children where there may be a need to disclose the existence of the notification requirements.
13. A report from the OMU stated that the OMU have encouraged the Applicant to consider the de-registration process for a number of years but that he had been reluctant to do so due to concerns about publicity.
14. The Crown indicated that there were no factors specific to this case that weighed against a private hearing and did not oppose the application that the judgment be published in anonymised form.
15. In these circumstances we were satisfied that the public interest and the interests of justice would be best served by the Court ordering that the hearing be in private with a consequential anonymised judgment and we so ordered.
16. We turn now to the application itself.
17. Article 5(6) of the 2010 Law states:
"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".
18. The Court has a clear policy that notification requirements will not normally be lifted where the offender scores at moderate risk (see for instance H v AG [2014] JRC 226). In this matter, the Applicant scores a low risk of sexual conviction.
19. In AG v Roberts [2011] JLR 125 the Court held that the Applicant must 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".
20. As already noted, we had the benefit of a report from the OMU which, in summary, stated that:
(i) The Applicant has no additional convictions including no breaches of the notification requirements or restraining order;
(ii) The Applicant has been managed as a low-risk offender;
(iii) The Applicant has been routinely risk assessed using the SA07 risk assessment tool for sexual offending during his management period and the most recent Stable assessment scored the Applicant as low because he is in stable accommodation, has no negative social influences and his sexual preoccupation is low. In the Acute aspect of the assessment, which records day to day changes and takes into consideration domains which can change very quickly it was noted that the Applicant has never scored in any of the domains except in the most recent assessment in January 2024 where he scored "maybe present" in the category of Emotional Collapse based on the change in his childcare responsibilities and the possibility that this may become too much for him. However, a review of his situation found that the Applicant and the children have adapted well with no issues being identified.
(iv) The Applicant was found to have a good support network via his family, employer, and the children's mother, has a positive co-parenting relationship with the mother of the children, is focused on securing a better future with his children rather than finding a new relationship, has a close relationship with his sister, does not demonstrate hostility or disrespect towards women, has good relationships at work and is emotionally responsive. Whilst the Applicant does still insist that the offending was not deliberate, he accepts that the nature of the search terms he used were the likely cause of the images being downloaded. He does not dwell on the offending and has not allowed his conviction to hold him back. He does not demonstrate impulsivity and lives a relatively stable lifestyle, drinks rarely and never to excess. He is prescribed medicinal cannabis but has reduced the amount and strength. He is able to identify and address problems and has shown that he can plan for the future. He recognises that what he did was wrong but has moved on with his life. In relation to sexual self-regulation, this specific risk factor had been scored as 1 as a note of caution due to the possibility that there was some underlying sexual preoccupation. Otherwise, there were no concerns with this specific risk factor.
(v) It was further noted that the Applicant had adhered to his notification requirements with just two instances of him being late to register his address with no formal sanctions being imposed. He had complied with providing his mobile phone for examination, had been open to discussions and accommodating to officers in their management of him.
(vi) In relation to his current situation the Applicant had stability via accommodation and a job that he could return to if he is able to make suitable arrangements around the full-time care of his children. The Applicant had been co-operating with the Children's Service to ensure the needs of the children are met and has engaged with a sexual risk assessment (which scored him as low), and a psychological and parenting assessment all of which recommended his full- time care of the children.
21. We also had the benefit of a report from the Jersey Probation and After-Care Service which, in summary, stated that:
(i) The Applicant's personal circumstances appeared to be stable with him living a pro-social lifestyle and there being no indications that he has a proclivity to sexual offending.
(ii) The Probation Officer was in complete agreement with the OMU that the Applicant's overall sexual risk level was within the low bracket and that the only highlighted areas in the SA07 assessment were scored on a precautionary level only and were noted to have reduced since the original assessment was completed. There were areas of improvement from previous assessments including significant social influences, problem solving skills and no sexual deviance since the offences occurred.
(iii) Whilst on Probation, the Applicant had engaged fully with the Sex Offender module.
(iv) The Applicant had not come to the attention of the Police in the intervening years and had maintained consistent engagement with the OMU.
22. The Applicant's counsel advised us of the additional risk assessments that have been carried out on the Applicant for the purpose of the care proceedings and that he had therefore been subject to a far higher level of scrutiny than most people. It was submitted that the Court could therefore take further assurance from the recommendations of those assessments.
23. We further noted that the Crown did not oppose this application.
24. In the light of the evidence placed before us we were satisfied to the required standard that the Applicant does not pose a risk of sexual harm to the public, or to any particular person or persons and that due to the low likelihood of the Applicant reoffending, it is no longer justified for the Applicant to be subject to the notification requirements under the 2010 Law and we therefore ordered his release from the notification requirements.
Authorities
Sex Offenders (Jersey) Law 2010.
Protection of Children (Jersey) Law 1994.
Misuse of Drugs (Jersey) Law 1978.
A v AG [2020] JRC 004.
S v AG [2023] JRC 140.