Jersey Unreported Judgments

[2011]JRC174

Royal Court

(Samedi)

1 September 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Breton and Milner

The Attorney General

-v-

M

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

M. T. Jowitt, Esq., Crown Advocate.

Advocate M. L. Preston for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        This is an application under Article 13 of the Sex Offenders (Jersey) Law 2010 brought by the Attorney General to have M made liable to the notification requirements contained in that legislation.  It is based upon, substantially, the judgment of the sentencing Court in 2010 where M was to be sentenced for an offence of indecent assault.  The judgment reflected that this offending was at the lower, but not the lowest, end of the scale.  The application is also based on the probation information which has been provided.  The probation officer says this:-

"In the light of the assessments which he had made the Court may consider there are limited grounds for [M] to be made subject to the notification  requirements.  The available tools all indicate the likelihood of him appearing before the Court again for sexual offences is low, equally the Court may consider a period of notification warranted given the short period of time since his conviction, the gravity of the index offence and the allegation made against him a mere three months prior to the index offence.  In my assessment given these considerations I am unable to conclude that the risk of further sexual conviction can be entirely discounted.  I am also mindful that had this offence been committed 12 months later [M] would have been automatically made subject to notification requirements."

2.        The Court has a discretion as to whether or not to make M subject to the requirements because he was convicted before the Sex Offenders Law came into force.  We apply the tests set out in AG-v-Roberts [2011] JRC 050 and in particular paragraph 23 of the judgment of the Court in that case where it was said:-

"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."

That reverse burden, I just note in passing, is consistent with the approach that is taken in the legislation under Article 5(6) which sets out the circumstances where the Court can lift a notification requirement after it has been imposed; that is to say the Court must be satisfied on the application, probably by the applicant, that the applicant no longer poses a risk of sexual harm to the public or any particular person or persons. 

3.        This is a civil matter and the application to have M subject to the notification requirements is not opposed.  The Court has noted everything that is contained in the probation report, has certainly a slight concern that M may be in a state of some denial given the index offence was committed so shortly after the previous incident where consent was an issue.  What the Court is required to do is balance risk and the proportionality of making the order, given M's rights under the European Convention of Human Rights.  We are satisfied that it is appropriate that he be subject to the notification requirements and the reasons for that are both the concern I have mentioned, the evidence that we have had, and also the fact the index offence was a serious offence.  We also note that the time he has been out from custody is still relatively short and we take that into account in our assessment of risk.

4.        As to the period before which M can bring an application to have the notification requirements removed from him, the Court has given careful consideration to the matter.  We consider that the period should be 5 years to run from the date of release from custody.  That is partly because of the nature of the offending and the concern as to the state of denial which I have mentioned.  We also have noted that the longer period will not work against M because it will have the advantage that he will be able to point to a longer track record if he comes to make an application on the expiry of the 5 years to have the notification requirements lifted.

5.        We were surprised to be told that the police had made three visits to him in five months.  This does seem to be a relatively high incidence of visiting.  It may be due to the assessment that it was necessary to give M some support on his release from custody, or it may have been the requirements to make an assessment for the purposes of this hearing, but we would be surprised if the incidence of such visits were to continue at that level.  This is a small Island.  Neighbours and others would notice regular police attending and it is important to recognise that the purpose of this notification requirement is to protect the public in the future from risk of sexual harm and it is not in any sense a punishment for the offence which has been committed because M has served his sentence and that is now over and he is entitled to rebuild his life from this stage.

Authorities

Sex Offenders (Jersey) Law 2010.

AG-v-Roberts [2011] JRC 050.

European Convention of Human Rights.