Hamill v The Chelmsford Magistrates' Court & Anor (Rev 1)

An appeal under section 91E of the Sexual Offences Act 2003 involves reconsideration of both fact and law. The magistrates must apply the statutory test, consider all relevant factors in section 91D, and assess whether continued notification is proportionate under Article 8. They must give sufficient reasons for the balance reached. Police forces may coordinate information when an offender has lived or worked in another jurisdiction; mobility alone is not a proper reason to refuse review. General reconviction statistics cannot be applied mechanically to establish an individual’s continuing risk. Where the magistrates have applied the wrong test or omitted material factors, their decision should ordinarily be quashed and remitted unless only one lawful outcome was possible.

The claimant, convicted of rape and subject to indefinite notification requirements, applied under sections 91B and 91C of the Sexual Offences Act 2003 for those requirements to end. A Detective Superintendent refused the application. The claimant appealed to the magistrates, who dismissed the appeal, relying principally on the seriousness of the offence, the claimant’s movements between police jurisdictions, and a 21-year reconviction study.

The claimant sought judicial review of the magistrates’ decision, alleging errors of law, inadequate reasons, failure to apply the statutory factors, and disproportionate interference with Article 8 rights. The court also considered whether the police determination could be delegated and what the statutory appeal required.

1. Delegation. The statutory power under section 91C could validly be exercised by a Detective Superintendent. A Chief Constable is a statutory office-holder, and the statutory scheme necessarily permits an appropriate degree of delegation. Delegation to an officer of Superintendent rank or above was sufficiently senior. The approach in Director of Public Prosecutions v Haw [2008] 1 WLR 379 was adopted.
2. Nature of the appeal. An appeal under section 91E lies on fact and law. The magistrates must reconsider the matters relevant to the police determination, including the factors in section 91D, and decide whether the offender has satisfied them that continued notification is unnecessary to protect the public from sexual harm.
3. The magistrates must consider the effect of continuation for at least a further eight years on the offender’s Article 8 rights. The proportionality assessment may require consideration of the effect on the offender’s children.
4. The magistrates erred by applying an overriding-monitoring test rather than section 91C(2), failing to demonstrate consideration of all section 91D factors, relying on insufficient time to monitor the claimant in Essex, and treating the Irish monitoring arrangements as inadequate without proper evidence. Movement between jurisdictions could not, by itself, justify refusal.
5. The magistrates also misused the reconviction study. General statistics could not be applied mechanically to determine an individual’s risk, and the study was inconclusive. Their Article 8 reasoning was likewise inadequate because it did not address the mandatory continuation period.
6. The decision was quashed. The matter was remitted to a differently constituted magistrates’ court for rehearing. The High Court could not substitute its own decision because it could not conclude that only one lawful outcome was available.

1. Magistrates’ Court: The claimant’s appeal against the police determination was dismissed on 5 June 2013.
2. High Court (Administrative Court): The magistrates’ decision was quashed and the appeal remitted for rehearing before a freshly constituted court.