The case of R v Wiles (2004) 2 Cr App R (S) 88 may have gone under the radar but it raises important questions as to how laws can be applied retrospectively and inconsistency as to how the law is applied.
What are Notification Requirements for Sexual Offences?
The notification requirements for those convicted or cautioned for sexual offences (commonly referred to as the ‘sex offenders’ register’) were initially introduced as part of the Sex Offenders Act 1997. This system which applied retrospectively, was amended under Part 2 of the Sexual Offences Act 2003 meaning that relevant offenders were required to notify certain personal details to the police in their area including name, date of birth, national insurance number, main address, other addresses resident for more than seven days and foreign travel plans for three days duration or more. In August 2012 under the Sexual Offences Act 2003 (Notification Requirements) (England & Wales) Regulations 2012, the notification requirements were made far more onerous. Failure to comply with the notification requirements is a criminal offence itself and punishable by up to five years imprisonment.
Ten Year Notification Requirements
In summary, R v Wiles states that for an offence that attracts the notification requirements (prescribed sexual offences), when calculating the length of the custodial sentence, the extended licence period is to be included. So, for example, a determinate sentence of between six and thirty months without any extension period would require a notification period of ten years – the defendant serving one half in custody and one half on licence.
Lifetime Notification Requirements
However a sentence of custody, no matter how short, that includes an extended period of supervision under section 85 Powers of Criminal Courts (Sentencing) Act 2000, would in almost all cases attract a lifetime notification. This is somewhat perverse, since by agreeing to be subject to the extended licence, in order that rehabilitation can take place, a defendant will also be subject to a lifetime notification. If a defendant were to refuse the rehabilitation aspect of the sentence and receive a custodial sentence with no rehabilitation requirement the notification requirements would in all likelihood be for a set period of time rather than life!
Wiles was actually decided on the 4th March 2004 but because it went below the radar it didn’t dawn on anybody (including the Home Office) of the consequences until over a year later. But even then Judges were still not aware of it for years afterwards and were telling Defendants they were subject to ten year notifications, when in fact it was life.
As unfair as that seems, matters were further confused that not every police force in England and Wales enforced the ruling in Wiles for convictions dated prior to the 1st April 2005. So dependant on where you lived in the country would depend on whether you were subject to the notification requirements.
Can this be applied retrospectively?
Now even more bizarrely and unjustly the National Police Chiefs Council sent guidance to all police forces advising that each police force should be applying the ruling as from the 25th August 2000 regardless as to what approach they had taken hitherto.
Consequently this means that for a number of defendants who were sentenced between August 2000 and April 2005, who believed they were subject to notification requirements for ten years or less may still be subject to these requirements, long after the period has expired. Further, depending upon where the defendant lives, they may now be contacted by the Sex Offenders Unit in the area they reside and asked to re-register long after their notification period has expired.
This is contrary to previous police policy, an abuse of process based on the law of unintended consequences and a legitimate expectation as well as an infringement of Human Rights.
Max Saffman – Notification Requirements (Sexual Offences) Specialist Solicitor
If you are one of these people who are still signing the register in excess of the term announced by the Judge we would advise you contact Max Saffman to discuss how we can help. Alternatively if you have ceased being subject to the register and have subsequently been contacted by the police to re-register or wish to discuss any aspect of this legislation anonymously and in the strictest confidence please contact Max Saffman at Olliers Solicitors on 0161 834 1515 or email firstname.lastname@example.org.