Jersey Unreported Judgments
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URL: http://www.bailii.org/je/cases/UR/2011/2011_217B.html
Cite as: [2011] JRC 217B
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG -v- E [2011] JRC 217B (07 November 2011) URL: http://www.bailii.org/je/cases/UR/2011/2011_217B.html Cite as: [2011] JRC 217B |
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Appeal against the decision of the Relief Magistrate made pursuant to Article 5(1) of the Sex Offenders (Jersey) Law 2011.
[2011]JRC217B
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Before : |
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Clapham and Nicolle. |
The Attorney General
-v-
E
S. M. Baker, Esq., for the Appellant.
Advocate A. P. Begg for the Respondent.
JUDGMENT
THE commissioner:
1. This is an application by the Attorney General for an extension of time for an appeal against the decision of Harris, Relief Magistrate, made on 15th April, 2011, pursuant to Article 5(1) of the Sex Offenders (Jersey) Law 2010 ("the Sex Offenders Law") that a period of one year must expire before the respondent can make an application under Article 5(5) of the Sex Offenders Law for an order that he no longer be subject to the notification requirements.
2. Under Rule 3 of the Sex Offenders Law (Magistrate's Court Appeals) Rules 2010 ("the Rules") a notice of appeal must be lodged within 8 days of the decision. At the hearing on 15th April, 2011, the prosecution indicated to the respondent and to Mr Begg that it would be considering an appeal. On 20th April, 2011, in error, the prosecution applied under Article 21 of the Magistrate's Court (Miscellaneous Provisions)(Jersey) Law 1949 for the Relief Magistrate to state a case for the opinion of the Royal Court and on 3rd May, 2011, the Relief Magistrate stated his case accordingly. We say in error because appeals against decisions under the Sex Offenders Law are governed by Part 5 of that Law, in this case Article 20, and by the Rules.
3. When this was drawn to the attention of the prosecution, it filed a notice of appeal under the provisions of the Sex Offenders Law on 6th May, 2011, outside the 8 days specified by the Rules. Rule 10 provides that the Royal Court may extend the time appointed for doing anything in connection with an appeal.
4. Initially Mr Baker maintained that it was open to the prosecution to appeal under either law but in discussion accepted that the Royal Court would not entertain an appeal by way of case stated in the face of the express provisions governing appeals under the Sex Offenders Law. In any event, Mr Baker submitted that an appeal had been notified within the 8 days specified by the Rules and the short extension would cause no prejudice to the respondent.
5. In AG-v-M [2011] JRC 174, Bailhache, Deputy Bailiff, described the notification requirements under the Sex Offenders Law as a civil matter and in AG-v-Velosa [2011] JRC 026 he expressed the following view at paragraph 5:-
6. This is consistent with the view expressed in the report attached to the draft Sex Offenders (Amendment)(Jersey) Law 2011, which was lodged au Greffe on 26th April, 2011. Under that Law it was proposed to delete Article 18(3), which provides that an appeal under Article 20 (inter alia) shall be taken to be an appeal in criminal proceedings, but this amendment was withdrawn by the Minister of Home Affairs because (quoting from the transcripts of the debate held in the States Assembly on 9th June, 2011):-
"...I am now of the view and advised and that it is best to leave this in place temporarily so that we do not have the situation with appeals from the same decision going off in two different directions, which is most undesirable but what will ultimately need to happen in my view is an amendment to the Court of Appeal Law to be passed in conjunction with this Article being deleted."
7. Thus, in this appeal, we are required by Article 18(3) to apply the criminal law and in that context Mr Begg referred us to AG-v-Fossey [1982] JJ 223 where Ereaut, Bailiff, stated:-
8. In La Solitude Farm Limited [1985-86] JLR 1, a case in which an extension of some two years was being sought, Le Quesne JA stressed the importance in criminal matters that rules be observed and that it should be made clear that leave to appeal out of time in criminal matters
9. Under English criminal law, substantial grounds are also required to be given for the delay before the court will extend time (see Archbold 2011 7-182) and in deciding whether to grant time, the court will be influenced by the likelihood of a successful appeal if the extension is granted (see R-v-Marsh 25 Cr. App. R. 49).
10. We therefore turn to the substance of the appeal.
11. The respondent was convicted on 14th February, 2010, after a trial of three days of five charges of making indecent photographs of children contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994. They reflected computer images found on his computer of which 183 were rated at Copine level 1, 5 at level 2 and 1 at level 3. The respondent was additionally convicted of 12 charges of attempting to make indecent photographs of children. The files comprised in these attempted charges had file names (which are not measurable against the Copine scale) of which the following is representative:-
"real child porn!!! (illegal preteen underage Lolita kiddy incest little girl rape anal cum sex lesbian blow".
12. Upon conviction and by virtue of Article 3(1) of the Sex Offenders Law, the respondent became subject to the notification requirements as set out in Article 6, which require him to notify an authorised officer of all names he uses and his home address and any change of address. He may additionally be required to give his fingerprints, a photograph of himself and a non intimate sample. The Minister may, by order, impose obligations if the respondent travels outside Jersey.
13. On 15th April, 2011, when the question of the period to be specified under Article 5(4) arose, neither the prosecution nor the defence submitted that the period should be anything other than five years, Article 5(4) being in the following terms:-
14. The Relief Magistrate said this:-
15. In his case stated, the Relief Magistrate explained his reasoning in the following way:-
16. Mr Baker submitted that the legislature had imposed a standard minimum of 5 years, reduction from which is restricted to cases where 5 years is not necessary and/or not proportionate to the need to prevent crime. The standard period of 5 years must reflect the desire of the legislature to ensure that those convicted of relevant sexual offences will generally remain subject to the notification requirements for a significant time in order to protect the public from sexual harm.
17. He said it may be a matter for judicial notice that offenders of this kind are rarely if ever cured "quickly". They commonly fail to accept that they have done wrong. This is a reason to continue to subject them to a degree of monitoring (i.e. requiring them to say where they are living and what they are calling themselves) and not a reason to enable them to bring notification requirements to a swift end.
18. If the prospect of an early end to the notification requirements were to incentivise a respondent to engage with the appropriate agencies and accept his guilt, then there would be doubts as to whether any professed change of heart was genuine or was simply expressed in order to improve his chances of succeeding in an Article 5(5) application. Furthermore, the argument that a shorter period is justified in order to provide an incentive to the respondent to change his attitude produces the perverse result that a defendant who refuses to accept that he has done wrong can benefit by receiving a reduction in the period, as an incentive to change his ways, while a defendant who accepts wrongdoing would need no such incentive and would thus receive no such reduction. If anything, the respondent's attitude meant he posed more, not less, of a risk than someone who accepts guilt and welcomes help to change his behaviour. While the right to make an application is no guarantee of success of that application, a defendant who had evinced the change of heart requested by the Magistrate's Court could have a legitimate expectation of favourable treatment by the Court upon his application.
19. Whilst the offending was not at the most serious scale of sexual offending, the Relief Magistrate had in his statement of case downplayed the importance of the names of the files referred to in the attempt charges, which indicate an interest in serious sexual abuse.
20. As for proportionality, the burden of the notification requirements is not onerous and the interference in the respondent's life is minimal in comparison to the seriousness of the imperative to protect the public from any risk of sexual harm.
21. Mr Begg submitted that there had been no substantial miscarriage of justice and the Royal Court should not interfere with the Relief Magistrate's decision. It could not be said that no reasonable judge could have reached the same conclusion. The Relief Magistrate was entitled to come to the decision which he did - and make the minimum notification period 1 year.
22. Mr Begg accepted that in AG-v-M [2011] JRC 174 the Court adopted a different approach. In that case (which involved an application under Article 13 of the Sex Offenders Law for no notification requirements to be imposed in respect of an offence of indecent assault committed before the Sex Offenders Law came into force) the Court did not reduce the period of 5 years, partly because of the nature of the offending and partly because of a concern as to the state of denial of the defendant. The Court noted that the longer period would not work against the defendant because it would have the advantage that he would 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. In Mr Begg's submission, the purpose and effect of the decision in AG-v-M and of the Relief Magistrate in this case were the same. By imposing a shorter notice period, the Relief Magistrate was encouraging the respondent to engage with the Probation Service sooner because if he did so there would be a prospect that, within a year, he could be off the Sex Offenders' Register. However, if he did not engage with the authorities, then clearly any application by him to be removed from the Sex Offenders' Register would be deferred. Had the defendant been placed on the Sex Offenders' Register for 5 years, he may have taken the view that there would be no point in him engaging with Probation and the other agencies until much more time, say 4 years, had elapsed. The theory therefore would be that if he were, indeed, a risk to the public, the risk would be extended the longer he continued without having any incentive for engaging with the relevant agencies.
23. Article 18(1) of the Sex Offenders Law provides that an appeal shall be by way of a review.
24. In civil cases, the test on an appeal by way of review is that the appeal Court will only interfere in three situations:-
(i) Where the judge has misdirected himself with regard to the principles in accordance with which his discretion has been exercised.
(ii) Where the judge, in exercising his discretion, has taken into account matters which he ought not to have done or has failed to take into account matters which he ought to have done; or
(iii) Where his decision is plainly wrong,
(see UCC-v-Bender [2006] JLR 269).
25. In addition to these three principles in Hadmore Prods Limited-v-Hamilton (1983) 1 AC 191, a further supplementary ground is added, namely that there has been a change of circumstances after the judge made his order that would have justified his acceding to an application to vary it.
26. Notwithstanding that these notification requirements are regarded as a civil matter, Article 18(3) requires us on any appeal to apply the criminal law. We agree with Mr Baker that the standard test on an appeal against sentence, namely whether the decision was wrong in principle or manifestly excessive (see AG-v-Samson (1965) JJ 495) has no application because this is not an appeal against sentence. As made clear in Velosa, the legislation is concerned with the protection of potential victims and does not intend the fixing of the period to be part of the sentence.
27. The appropriate test on an appeal by way of review in criminal proceedings is that applied on appeals to the Royal Court from decisions on bail made by the Magistrate's Court. That approach is set out in the case of AG-v-Skinner 1994/127 (applied in AG-v-Godel [2009] JRC 249) where the then Bailiff said this:-
28. Both Counsel submitted that there is little difference between the first two heads under the civil and criminal tests but recognise that there may be a distinction under the third head, namely whether a decision was (civil) or was (criminal). Insofar as this third limb of the criminal test placed a higher burden upon the prosecution, it was content to assume it.
29. Constrained as we are by Article 18(3) of the Sex Offenders Law, we have therefore applied the criminal test on appeal by way of review as set out in the case of Skinner.
30. A further point arises in relation to Article 5(5) of the Sex Offenders Law and the requirement for there to be exceptional reasons for reducing the period below 5 years, best explained by quoting from the report to the draft Sex Offenders (Amendment)(Jersey) Law 2011:-
31. When the amendment comes into force, Article 5(4) will therefore read as follows:-
32. At the time of sentencing, the Relief Magistrate and the advocates appearing before him were not aware of this advice from the Ministry of Justice but Mr Baker for the Prosecution accepted that in the light of this advice parts of the Sex Offenders Law may not be compatible with the European Convention on Human Rights and that pending the amendment coming into force, Article 5(4) should be read down. Two parts are affected:-
(i) The phrase "exceptional reasons" should be read down such that the Court should consider whether there is a "reason" to make the period shorter, the test being whether it is necessary and proportionate for the purpose of the prevention of crime for the person to subject to the notification requirements for a particular period.
(ii) The reference to the seriousness of the offence should be treated as follows: while the seriousness of the offence might be an indication of the likelihood of re-offending, it is not necessarily so and the correct approach is that the seriousness of the offence should be used only as one element in assessing the risk of re-offending posed by the offender, not as an indication, of itself, that a particular period of notification is justified.
33. In considering this appeal, we have read down Article 5(4) accordingly, applying the above approach. Nevertheless, the Prosecution maintains that even if the sentencing hearing had proceeded in this manner, it would still have been wrong, in the circumstances of the case, for the Relief Magistrate to have imposed a period of 1 year for the reasons put forward by him.
34. We accept the arguments put forward by the Prosecution and agree that the Relief Magistrate erred in specifying a period of 1 year for the reasons put forward by him. The principles underlying and justifying the notification requirements are analysed by Kerr J in Re Gallagher's application for judicial review (2003) NIQV 26 where he says this:-
35. These principles have been endorsed by the Court in AG-v-Roberts [2011] JRC 050. The legislation creates a scheme the purpose of which is to protect potential victims from sexual harm by setting out a period of at least 5 years for the notification requirements which will be the minimum period that will apply to all who come within its purview, unless the Court is satisfied that there is a reason why a shorter period would be appropriate, the test being whether it is necessary and proportionate for the purpose of the prevention of crime for the person to be subject to notification requirements for a particular period.
36. Bearing in mind the purpose of the scheme, the respondent's continued denial of his guilt and failure to engage with the Probation Services, cannot in our view be a reason for reducing the period of the notification requirements. If anything, it would constitute a reason for increasing the period. If such reasoning were to be applied more generally, we accept the danger that it would lead to the perverse results argued by the prosecution, thus potentially undermining the scheme's primary purpose.
37. In our view, the prosecution would succeed in the third limb of the test, namely that no reasonable Magistrate could have reached that decision for those reasons. There may of course be other reasons for reducing the period and we come to that later.
38. That being the case, we conclude that there are substantial grounds for granting the short extension of time for the filing of the notice of appeal to 6th May, 2011, which we now do. For the reasons set out above, we allow the appeal and set aside the decision of the Relief Magistrate to specify a period of 1 year.
39. Article 18(2) of the Sex Offenders Law provides that on an appeal the Court may make any order it considers necessary to give effect to its determination of the appeal.
40. Mr Begg submitted that this appeal had been stressful for the respondent, which we accept, and invited us, should the appeal succeed, not to refer the matter back to the Magistrate's Court but to bring this matter to a close without any further delay by specifying the appropriate period under Article 5(4) of the Sex Offenders Law. We think it right to proceed in that manner.
41. We accept that the offending here was not at the most serious end of the scale of sexual offending covered by the Sex Offenders Law. Of concern is the respondent's denial of guilt and failure to engage with the Probation Services.
42. As against that the respondent is, bar one historic and unrelated conviction, a man of good character who has a stable family life and work record. The Children's Services have no concerns with regard to his relationship with his children. Significantly for the purposes of Article 5(4), the respondent is assessed at a low risk of general re-offending and at a low risk of further sexual offending. We are satisfied that these are reasons for specifying a shorter period than five years and we determine that three years is the appropriate period before which an application to lift the notification requirements can be brought.