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Article by Emily Watts
Factual and Procedural Background:
Mr Halabi (the claimant) was convicted of rape in France in April 1998, he was sentenced to 3 years imprisonment, suspended for 5 years.
In 2017, the Metropolitan Police discovered he had a conviction for a sexual offence and lodged an application at the Magistrate’s Court for a Notification Order against Mr Halabi, under S.97 Sexual Offences Act 2003 (SOA). A Notification Order in effectively where the individual is placed on the sex offenders register.
The Magistrates decided that the statutory test under s.97 SOA 2003 was satisfied. At this point the marking of the order becomes ‘automatic’ and the Notification Order was made. Mr Halabi decided to appeal this decision to Southwark Crown Court on the basis that the Order amounted to a disproportionate interference with his rights under Article 8 ECHR. The Crown Court came to the same conclusion as the Magistrates and dismissed the appeal against the Notification Order. In 2019 Halabi filed the present claim for judicial review challenging the Southwark Crown Court’s decision dismissing his appeal.
The Current Law:
Sexual Offences Act 2003:
Part 2 of the SOA 2003 creates a notification regime for those convicted of relevant sexual offences. The aim was to set up a system with essentially the same provisions to cover offending of the same nature committed in the UK or overseas.
S.97(1) SOA 2003 gives the police the power to apply for a Notification Order regarding an individual who has committed a sexual offence in another jurisdiction.
If three statutory conditions are met, which mirror the triggers and notification periods on ss.80,81 and 82 SOA 2003, then the court has no discretion in the matter. S.97(5) requires that the Magistrates Court “must” grant a notification order, effectively the Order becomes ‘automatic’.
Article 8 European Convention on Human Rights:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority… where it is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or moral or for the protection of the rights and freedoms of others.
Issues:
The main question was whether the ‘automatic’ effect of S.97(5) is contrary to Article 8 ECHR.
Claimant’s submissions:
The claimant contended that the imposition of the Notification Order constituted a disproportionate interference with his Article 8 rights. The Claimant contended firstly, that a proportionality analysis is required by law but was not conducted by the Magistrates or Crown Court. Secondly, that the proportionality review should take into account the individual circumstances of the offender before an Order is made.
The Claimant submitted these individual circumstances to highlight the disproportionality:
1. Low risk of reoffending
2. Length of time between the conviction and the Notification Order
3. Claimant was already subject to Notification requirements in France
4. The conviction was deleted from French records
Decision by the Divisional Court:
The court recognised that Article 8 was engaged in this case and the imposition of a Notification Order constitutes an interference with this right. There does not have to be a proportionality analysis under Article 8 ECHR that takes into account individual circumstances when imposing Notification Orders.
Relying mainly on the case of Main v Scottish Ministers [2015] SC 639 it was held that the ‘automatic’ imposition of Notification Orders by the courts is proportionate to the legitimate aims sought. Therefore, there is no breach of Article 8 ECHR.
The reasoning behind the decision was based on risk assessment. If a proportionality review was required in every case then a risk assessment would have to be done as part of this. It was conceded by the Claimant’s counsel that effective risk assessment could only take place where the perpetrator was subject to a Notification Order.
The requirement that the Claimant be subject to an Order ensures that ongoing risk assessment can take place. The court found that this struck a fair balance between the Article 8 rights of the individual and the state’s obligation to protect vulnerable individuals and potential victims in society. The reasoning here stems from, Stubbings v UK (1996) 23 EHRR 213 which held that there was a positive obligation on the UK to protect individuals from sexual abuse.
What does this mean for the law?
This case highlights the aim of the criminal justice system is not only to provide justice but to be preventive as well. If the court had permitted the individual circumstances of Mr Halabi this would give a chance to every convicted sexual offender not to be placed on the Register. The law can only work preventively if the ‘automatic’ stance is taken because there could be cases where a dangerous individual is able to convince the court they should not be on the Register.
The case also shows from a human rights perspective, that though there may be recognised infringements on the rights of an individual. If the wider public good is benefitted then this infringement will be justified.
