Applications for review of Indefinite Notification Requirements

Ruth Peters, Solicitor at Olliers, considers the circumstances where it may be possible to make an application for review of notification requirements for those sex offenders made subject to indefinite notification requirements.

Notification requirements (i.e. the requirements of the Sex Offenders Register) have been imposed on qualifying sex offenders since the introduction of the Sex Offenders Act in 1997.  The legislation sets out the time period that an offender will remain subject to notification requirements and this is dependent on the type of sentence and length of sentence received.

What are notification requirements?

Convicted sex offenders will become subject to a variety of requirements as a result of the notification requirements. Upon initial registration an offender will be required to attend at a local police station within three days to make an initial notification. The police may photograph them and/or take their fingerprints unless these are already held on the system. An offender will be required to provide the police with the following information initially:

• Their name
• Any other names used by them or previously used
• The police will also need to know the name used when convicted
• Date of birth
• National Insurance Number
• Home address. This is the address of the place where an offender usually lives. If they do not have an address of their own they may provide police with an address where they regularly stay or where they can be found, for example, a friend’s house or a shelter. The police will also want to know about previous home addresses including the address provided when convicted
• Whether they reside or stay for at least 12 hours in a household with a child (someone under the age of 18)
• Details of their passport or other identity documents
• Details of bank and building society accounts including credit/debit cards in their name. They will also want to know about any accounts held jointly with a partner or those held in the name of a business.

During the notification period the following requirements must also be complied with;

• Individuals must notify the police of a change of name
• If an individual does not have a usual home address they must go to the police station every 7 days and tell the police, their address or place where they can be found
• If a usual home address has changed the police must be notified within 3 days. This includes being released from hospital, prison or a detention centre
• If they have a usual home address but state another address for 7 days or longer they must go to the police station and notify the police within 3 days of having stayed at the new address.

Who will become subject to indefinite notification requirements?

Those offenders who are made subject to a custodial sentence of 30 months or more or a hospital order with restrictions will become subject to notification requirements for an indefinite period.

Is it possible to challenge indefinite notification requirements?

Prior to 2010 there was no means of challenging indefinite notification requirements. however, in April 2010, the Supreme Court ruled that the absence of any review mechanism for notification requirements rendered them disproportionate to the legislation and therefore incompatible with article 8 of the European Convention and Human Rights. Accordingly, the Sexual Offences Act 2003 (Remedial) Order 2012 was introduced and provided the mechanism whereby offenders could seek a review. This order provides offenders with the right to apply for a review once they have completed a minimum period of time subject to notification.  This is 15 years for adults and 8 years for juveniles.

What factors are considered in determining an application to review indefinite notification requirements?

The burden is on the applicant to satisfy the police that it is not necessary for the purpose of protecting the public from sexual harm for the offender to remain subject to notification requirements.  factors to be considered in relation to this include;

• The seriousness of the offence(s)
• Length of time since the offence(s)
• The age of offender
• The age of victim
• An assessment of risk by the Offender Management
• Any submissions from the victim
• Any convictions or cautions subsequent to the original offence
• Any other relevant matters

The outcome of the review will be determined by the police’s assessment of ongoing risk of sexual harm posed but will also consider the effect of continuation of the notification requirements on the offender. The police will then make a decision as to whether an offender should remain subject to notification requirements or the requirements should cease. The applicant should receive notification of the decision within 12 weeks. If the police agree then a discharge letter should be provided. If unsuccessful the applicant should receive a Notice of Determination letter which should include a statement of reasons for the decision.

Can I appeal a decision that I must remain subject to indefinite notification requirements?

There is a right of appeal to the Magistrates Court against any unsuccessful decision within 21 days of service of the determination letter. An applicant will need to pay a court fee and there are potential cost consequences of pursuing an unsuccessful appeal. If no appeal is pursued an applicant is precluded from seeking a further review for a minimum of 8 years but this can be as long as 15 years if the police consider the same necessary.

Why is it important to have a mechanism for individuals to be able to apply for review?

Rehabilitation is a crucial and fundamental aspect of our Criminal Justice System. It is extremely important that individuals who commit crime should be afforded the opportunity to change their behaviour and become productive members of society.