Sexual Notification Requirements for those convicted of sexual offences outside the UK
Those who have been convicted of sexual offences abroad should be aware that they may be subject to notification requirements within England & Wales, if an application is made by the police.
Sonn Macmillan Walker have been instructed in two cases recently where such applications have been made by the police. The process is not always straightforward and there may be grounds for not imposing the notification requirement.
Careful consideration of the offence committed outside the UK and all the relevant circumstances needs to be undertaken, particularly where the offence committed abroad does not exactly mirror such an offence under our own legislation.
The relevant law is contained in sections 97- 99 Sexual Offences Act 2003 (“the Act”). Under section 97 a chief officer of police may make an application to add an individual to the register for an offence committed outside of the UK. The use of the word ‘may’ is important, as it implies a discretion to make the application.
The application is made by the chief officer of police where the individual lives or is known to be coming to. The application is made to the magistrates’ court by way of complaint and a hearing will be set down where the application is contested.
For the application to be granted there must be three conditions present:
1. The individual has been convicted or cautioned abroad of a relevant offence, or has been made the subject of a finding of fact in circumstances where the individual suffered from a disability.
2. The conviction, finding or caution must have occurred on or after 1 September 1997.
3. The period set out in section 82 of the Act in respect of the relevant offence, has not expired.
Section 99 defines a relevant offence as one 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 (other than at paragraph 60) if it had been done in any part of the United Kingdom.
Obviously where offences are clearly analogous then the application will be relatively straightforward and difficult to contest. For example, someone convicted of rape in France would have difficulty resisting an application that they should be subject to notification requirements on return to the UK.
In the recent appeal case of R (Halabi) -v- Crown Court at Southwark [2020] EWHC 1053 (Admin) the Divisional Court of the Queen’s Bench Division held that the automatic imposition of notification requirements on a person who had been convicted of relevant sexual offences in a foreign country, years earlier, without a proportionality assessment or consideration of individual circumstances, did not constitute a disproportionate interference with his right to respect for private and family life under Article 8 of the European Convention on Human Rights. There will, however, be cases where the offence abroad will not exactly mirror domestic law and which may therefore lead to an argument that the conviction, caution or finding abroad does not amount to a relevant offence.
Case study
Sonn Macmillan Walker represented a British national who had been convicted of offences amounting to ‘obscenity’ in the USA. He returned to the UK and did not think anything further of the matter until he was approached at his home address by an officer from his local constabulary. This was about 2 years after his conviction in the USA.
The officer informed him that the police were looking to add him to the sex offenders register. They had obtained details concerning the conviction and under section 97 of the Act made an application to the local magistrates’ court.
We contacted the firm acting on behalf of the police force and they seemed surprised that our client had legal representation as such applications were rarely challenged. We examined the application and formed the view that it lacked detailed information about the conviction in the USA. On one view, it was arguable that it did not amount to possession of indecent images, which is what the police application contended.
A date was set for a hearing at the magistrates’ court but on receiving our detailed representations the police withdrew their application.
Our client was obviously very pleased with the outcome as, if the application had succeeded, it would amongst other issues have created serious problems for his work.
Summary
It is in the public interest to have a mechanism for monitoring those coming into the UK who have been convicted of offences that give rise to a risk to children or other vulnerable groups. However, in the case study above there were issues with the application which could have led to our client being unfairly placed on the register.
If you have any concerns about having a foreign conviction that might be subject to an application by your local police force, please contact Chris Stevens.
