Jason Beer QC and Alice Meredith appear in the Divisional Court, successfully resisting a further high profile challenge to the national regime for monitoring sex offenders
On 1 May 2020, Haddon-Cave LJ and Holgate J handed down Judgment, rejecting Mr Simon Halabi’s challenge to the Notification Order regime.
Mr Halabi, a British citizen, had been convicted of a serious sexual offence in France many years ago, and sentenced to a suspended term of imprisonment. The Metropolitan Police was not informed of his conviction until late October 2017, bringing an application for a Notification Order in November 2017. The Order was granted following a contested hearing in the Westminster Magistrates’ Court in September 2018, and upheld on appeal to Southwark Crown Court in April 2019.
Mr Halabi challenged the Crown Court’s decision by Judicial Review. He contended that:
- The Decision of the Crown Court was disproportionate and contravened Article 8. When an application was made, instead of automatically imposing an Order where the three statutory conditions were met, courts must take into account the level of risk posed by the individual defendant and assess the Article 8 proportionality of making an Order.
- The word “must” in s97(5) of the Sexual Offences Act 2003 should be read down (under s3 HRA) to include the qualification “except in so far as such an order would be disproportionate and thus a breach of Article 8”, to make s97 compatible with Article 8.
- If it was not possible to read s97(5) in this way, a declaration of incompatibility should be made pursuant to s4 HRA.
The MPS (as the Interested Party) robustly resisted the claim with the support of the National Lead for Public Protection, and alongside the Secretary of State for the Home Department, who was given permission to join as an Intervener.
The Claimant failed on Issue 1, and it was therefore unnecessary for the Court to make findings in relation to Issues 2 and 3.
The Court concluded that automatic imposition of an Order where the s97 conditions were met – without considering risk or conducting a proportionality assessment – struck a fair balance and did not breach Article 8, finding that:
- Risk cannot be properly assessed unless and until an Order is imposed.
- Courts should take a “precautionary” approach where there is a risk of sexual offending.
- The proportionality of notification requirements should be judged primarily on their general effects, rather than the impact on individuals.
- There is no discretion for a court to refuse to make an order if the s97 conditions are met.
In accepting the MPS submission on these points, the Judgment decisively upheld and provided clear justification for the approach taken to applications for Notification Order applications by police forces nationally.
The Divisional Court’s Judgment can be found here.