Commissioner of Police for the Metropolis v Central Criminal Court & Anor

A criminal court has no jurisdiction to remove indefinite sex-offender notification requirements unless legislation confers that power. The review mechanism introduced by the Sexual Offences Act 2003 did not retrospectively validate an earlier unlawful order. Although delay may justify refusing judicial review relief, the overriding consideration is the public interest. Where the challenged decision is plainly unlawful, the rule of law and the need to ensure that statutory procedures are followed may outweigh the prejudice caused by delay. Applications to remove notification requirements must therefore be dealt with under the statutory review regime, including its eligibility requirements and procedural safeguards.

The Commissioner sought judicial review of an order made by His Honour Judge Pontius at the Central Criminal Court on 28 March 2011. The order purported to remove Michael Guilfoyle’s indefinite notification requirements under sections 81 and 82 of the Sexual Offences Act 2003.

The order was made because of evidence that Mr Guilfoyle had overcome alcoholism and reformed his life. The Commissioner accepted that the judge had no jurisdiction, but issued the claim approximately eleven months late. The central issue was whether relief should nevertheless be refused because of delay and the resulting impact on Mr Guilfoyle.

1. The claim succeeded. The court quashed the order made by Judge Pontius. Under sections 81 and 82 of the Sexual Offences Act 2003, there was no power to lift the indefinite notification requirements. The judge’s assessment of Mr Guilfoyle’s rehabilitation could not confer jurisdiction.
2. The review provisions introduced by the Sexual Offences Act 2003 (Remedial) Order 2012 did not assist. Sections 91A to 91F were introduced following F and Thompson v Secretary of State for the Home Department [2010] UKSC 17, but they were not in force when the impugned order was made and provided no authority for it.
3. In deciding whether to refuse relief for delay, the court had to consider the public interest. It was not exercising the discretion later given to a chief officer of police or a Magistrates’ Court under section 91, nor reviewing a discretion exercised by Judge Pontius, because he had none.
4. The order remained effective until set aside: Crown Prosecution Service v T [2007] 1 WLR 209. Nevertheless, the added eleven-month period without notification and the resulting expectation of continued freedom did not outweigh the public interest in quashing a plainly unlawful order. That was the normal course for such a decision: Edwards v Environment Agency [2008] UKHL 22.
5. The public interest was particularly strong because the statutory procedure required consideration of responsible bodies’ information and imposed a fifteen-year bar before an adult offender could apply. Mr Guilfoyle had obtained removal of the requirements outside that procedure and years before he could apply under it. The Commissioner was ordered to pay the interested party’s costs.