Sexual Offences Act 2003 s.91D – Review of indefinite notification requirements: factors applying to determination under section 91C

(1)In determining an application for review under section 91C, the relevant chief officer of police must—

(a)have regard to information (if any) received from a responsible body;

(b)consider the risk of sexual harm posed by the qualifying relevant offender and the effect of a continuation of the indefinite notification requirements on the offender; and

(c)take into account the matters listed in subsection (2).

(2)The matters are—

(a)the seriousness of the offence in relation to which the qualifying relevant offender became subject to the indefinite notification requirements;

(b)the period of time which has elapsed since the qualifying relevant offender committed the offence (or other offences);

(c)where the qualifying relevant offender falls within section 81(1), whether the qualifying relevant offender committed any offence under section 3 of the Sex Offenders Act 1997;

(d)whether the qualifying relevant offender has committed any offence under section 91;

(e)the age of the qualifying relevant offender at the qualifying date or further qualifying date;

(f)the age of the qualifying relevant offender at the time the offence referred to in paragraph (a) was committed;

(g)the age of any person who was a victim of any such offence (where applicable) and the difference in age between the victim and the qualifying relevant offender at the time the offence was committed;

(h)any assessment of the risk posed by the qualifying relevant offender which has been made by a responsible body under the arrangements for managing and assessing risk established under section 325 of the Criminal Justice Act 2003;

(i)any submission or evidence from a victim of the offence giving rise to the indefinite notification requirements;

(j)any convictions or findings made by a court (including by a court in Scotland, Northern Ireland or countries outside the United Kingdom) in respect of the qualifying relevant offender for any offence listed in Schedule 3 other than the one referred to in paragraph (a);

(k)any caution which the qualifying relevant offender has received for an offence (including for an offence in Northern Ireland or countries outside the United Kingdom) which is listed in Schedule 3;

(l)any convictions or findings made by a court in Scotland, Northern Ireland or countries outside the United Kingdom in respect of the qualifying relevant offender for any offence listed in Schedule 5 where the behaviour of the qualifying relevant offender since the date of such conviction or finding indicates a risk of sexual harm;

(m)any other submission or evidence of the risk of sexual harm posed by the qualifying relevant offender;

(n)any evidence presented by or on behalf of the qualifying relevant offender which demonstrates that the qualifying relevant offender does not pose a risk of sexual harm; and

(o)any other matter which the relevant chief officer of police considers to be appropriate.

(3)In this section, a reference to a conviction, finding or caution for an offence committed in a country outside the United Kingdom means a conviction, finding or caution for an act which—

(a)constituted an offence under the law in force in the country concerned, and

(b)would have constituted an offence listed in Schedule 3 or Schedule 5 if it had been done in any part of the United Kingdom.

Definitions used in section 91D 8

relevant chief officer of police

(4) In this Part, the “relevant chief officer of police” means, subject to subsection (5), the chief officer of police for the police area in which a qualifying relevant offender is recorded as residing or staying in the most recent notification given by him under section 84(1) or 85(1).

Defined in s.91A(4) · see it in the full Act

responsible body

(a) “responsible body” means—

(i)the probation trust for any area that includes any part of the police area concerned,

(ii)in relation to any part of the police area concerned for which there is no probation trust, each provider of probation services which has been identified as a relevant provider of probation services for the purposes of section 325 of the Criminal Justice Act 2003 by arrangements under section 3 of the Offender Management Act 2007,

(iii) the Minister of the Crown exercising functions in relation to prisons (and for this purpose “prison” has the same meaning as in the Prison Act 1952 ), and

(iv)each body mentioned in section 325(6) of the Criminal Justice Act 2003, but as if the references in that subsection to the relevant area were references to the police area concerned;

(b) “risk of sexual harm” means a risk of physical or psychological harm to the public in the United Kingdom or any particular members of the public caused by the qualifying relevant offender committing one or more of the offences listed in Schedule 3.

Defined in s.91B(11) · see it in the full Act

risk of sexual harm

Defined in s.91B(11) · see it in the full Act

relevant offender

(2) A person for the time being subject to the notification requirements of this Part is referred to in this Part as a “relevant offender”.

Defined in s.80(2) · see it in the full Act

“relevant offender” has the meaning given by section 80(2);

Defined in s.133(1) · see it in the full Act

finding

and in paragraphs (a) and (b), “finding” in relation to an offence means a finding of not guilty of the offence by reason of insanity or a finding that the person was under a disability and did the act or omission charged against him in respect of the offence.

Defined in s.88(4) · see it in the full Act

court

(2) In sections 92 and 103A(1) of this Act, and section 345 of the Sentencing Code, “court” includes a service court.

Defined in s.137(2) · see it in the full Act

country

“country” includes territory;

Defined in s.133(1) · see it in the full Act

caution

and “caution” is to be interpreted accordingly;

Defined in s.133(1) · see it in the full Act

Cases considering section 91D 3

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

[2015] EWHC 688 (Admin) · 20 March 2015Interprets

Section 91D(1) requires consideration of responsible-body information, the risk of sexual harm, and the effect of continuation for the purposes of the section 91C test. It does not import a separate Article 8 proportionality test (see paras [13], [20]-[22]). The decision-maker must take into account the listed matters, including seriousness, elapsed time, age, subsequent offending, risk assessments, victim evidence, and evidence bearing on current risk. The reasons in NE did not show that these matters had been addressed (see paras [13], [36]).

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

[2014] EWHC 2799 (Admin) · 8 August 2014Interprets

Requires consideration of information from responsible bodies, the risk of sexual harm, the effect on the offender, and the listed statutory matters. The magistrates had to reconsider these matters on appeal (see paras [26], [66], [69]). Lists the factors relevant to review, including seriousness, elapsed time, age, risk assessments, convictions and cautions, victim evidence, other evidence of risk, evidence of no risk, and other appropriate matters. The magistrates failed to show that they had considered the full list (see paras [26], [69], [77]).

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

[2013] EWHC 179 (Admin) · 15 January 2013

Requires the decision-maker to have regard to specified factors when determining whether notification requirements remain necessary. (see para [7])

What each judgment says about section 91D is in the case-law panel in the full Act.