NE, R (on the application of) v Birmingham Magistrates Court & Anor

Under section 91C(2) of the Sexual Offences Act 2003, the offender bears the burden of satisfying the chief officer that continued notification is no longer necessary to protect the public from sexual harm. Any applicable standard is the balance of probabilities, but the statutory threshold is high.

The review is not a further free-standing Article 8 proportionality assessment. The decision-maker must apply the statutory necessity test, consider the matters required by section 91D, and give adequate reasons showing how the evidence was assessed. A reduction in risk must be demonstrated before indefinite notification can be removed. Judicial review is generally unsuitable where the real challenge is to factual findings or legal conclusions arising from a magistrates’ appeal; case stated is ordinarily the proper route.

NE and NM were subject to indefinite notification requirements following serious sexual offences committed when they were young. Each applied under the remedial review scheme in the Sexual Offences Act 2003 to the Chief Constable of West Midlands. The applications were refused and their appeals to Birmingham Magistrates’ Court were dismissed.

They sought judicial review, alleging inadequate reasons, errors in the treatment of risk evidence, and failure to apply the statutory scheme correctly. The court also considered applications for anonymity. The central issues were the burden and standard of proof, the role of Article 8, the adequacy of the magistrates’ reasons, and the appropriate procedural remedy.

1. NE’s claim allowed in part. The magistrates’ decision was quashed and the appeal was remitted for rehearing. NM’s claim was dismissed.

2. Section 91C(2) places the burden on the offender. The offender must satisfy the decision-maker that continued notification is not necessary for protecting the public or particular members of the public from sexual harm. Where a standard of proof is relevant, it is the balance of probabilities. The statutory hurdle remains high.

3. The court rejected the suggestion that section 91D(1)(b) imports a separate Article 8 proportionality test. Article 8 required the creation of a review mechanism, but the operative question remains the statutory question of necessity. The effect of notification on private and family life may be relevant when fixing the period before a further application, but it does not determine whether notification must continue where a risk of sexual harm remains.

4. The scheme requires consideration of the statutory matters in section 91D(2), relevant risk information, and the effect of continuation for the purposes of the section 91C test. The decision must give sufficient reasons to show how the evidence and statutory factors were addressed. NE’s reasons were too brief to establish whether the magistrates had applied the correct approach or understood the treatment of the risk-assessment material.

5. For NM, the reasons were adequate. The magistrates were entitled to treat subsequent serious offending, including violence and Class A drug offences, as capable of supporting an inference that a continuing disregard for the law might extend to sexual matters. Given the underlying statutory assumption that serious sexual offenders require monitoring, a reduction in risk had to be demonstrated. The magistrates’ conclusion was open to them.

6. Judicial review was not the appropriate route for challenges which in substance attacked the evidence, factual conclusions, or reasoning arising from the magistrates’ appeal. Section 111 of the Magistrates’ Courts Act 1980 provided the appropriate case-stated procedure. Judicial review might be suitable in wholly exceptional circumstances, but the court did not deprive the claimants of a remedy in these cases because the earlier decision in Hamill had proceeded by judicial review.

7. Anonymity was continued temporarily because publication risked identifying the claimants as persons convicted of sexual offences and the press had not been given an opportunity to oppose the application. The order was continued subject to liberty for the press to apply to remove it.

The judgment describes the applications as judicial reviews of separate decisions by Birmingham Magistrates’ Court. No appeal history from this court is stated in the judgment.