In R (Commissioner of Police of the Metropolis) v Central Criminal Court & (1) Guilfoyle & (2) Crown Prosecution Service  EWHC 179 (Admin) the High Court quashed an order purporting to lift a sex offender’s notification requirements as the Central Criminal Court had no power to make the order.
Sections 91A and 91B of the Sexual Offences Act 2003 form part of the new regime for the review of indefinite notification requirements for sex offenders. In outline:
- An offender who has been made the subject of an indefinite notification order can apply to the local Chief Constable for a review of the continuing need to be subject to notification requirements.
- The Chief Constable has to notify certain public bodies, such as the local probation service and the Home Secretary.
- If the Chief Constable refused to remove the notification requirements, there is a right of appeal to the Magistrates’ Court.
- Importantly, a person cannot apply until 15 years have elapsed if they were an adult at the time of the original notification requirement, or 8 years if a juvenile.
The new regime came into effect on 30th July 2012.
Mr Guilfoyle had originally been sentenced to six years’ imprisonment for an indecent assault on his estranged wife, and was made subject to an indefinite notification requirement on his release from prison. He applied for a review of the order before the 15 years had elapsed, and the correct parties were not notified of his application. Although the Court accepted that he had ‘turned his life around’, the judge lifting the order plainly did not have jurisdiction to do so. However, the applicant was very late in applying for judicial review (the application was not being lodged until 11 months after the original decision).
Despite being very critical of the delay – calling it ‘lamentable’ – the High Court had little doubt that the order had to be quashed. The High Court relied upon two important principles:
- firstly, that the rule of law should be upheld;
- secondly that there was a public interest in the proper procedure under the Sexual Offences Act 2003 being followed.
The last point of significance is that the High Court confirmed that, although the order had to be quashed, it nevertheless had been a valid order for the 11 months for which it had been in place. This emphasises the important principle that Court orders that are apparently valid on their face must be complied with, even if it seems obvious that they could be challenged successfully.