Law Drafting Instructions
Amendments to the Sex Offenders (Jersey) Law 2010
- A number of amendments are required to the Sex Offenders (Jersey) Law 2010 (‘the Law’), which centre on appeals under Article 18 and discretion in relation to notification requirements.
Appeals
- When the Sex Offenders (Jersey) Law 2010 (‘the Law’) received Royal Assent on 21 July 2010, a number of issues were raised by the Ministry of Justice, which they felt could reasonably be subject to a challenge in the European Court of Human Rights. One of the concerns that they had was that Article 18 of the Law provided, inter alia, that appeals under Articles 20, 21, 22 and 24 of the Law would be dealt with by way of criminal proceedings rather than civil proceedings; whereas the UK had maintained that measures like these are civil, preventative measures rather than criminal measures.
- In order to deal with this issue, and others, the Minister for Home Affairs brought the Draft Sex Offenders (Amendment) Law 201- to the States in June 2011 (P.68/2011). Article 8 of the Amendment Law would have had the effect of repealing Article 18(3) of the Law, which states:
(3) An appeal under Article 19, 20, 21, 22, 24, 25 or 26 shall be taken to be an appeal in criminal proceedings while an appeal under Article 23 shall be taken to be an appeal in civil proceedings.
- However, during the debate on P.68/2011, the Minister withdrew Article 8 of the Amendment Law. The last minute change was made because it was realised that to repeal Article 18(3) would have resulted in a situation where appeals from the same decision could effectively be sent to two different courts: the criminal aspect of the appeal to the Superior Number of the Royal Court and the civil aspect to the Court of Appeal, which would be unsatisfactory.
- Accordingly, a revised version of Article 18(3) is required, which addresses the concerns of the Ministry of Justice and also prevents the Superior Number having concurrent jurisdiction with the Court of Appeal on a parallel appeal under Part 5 of the Law. It is suggested that the revised version should read as follows:
“Where there is a right of appeal under this Part against an order or decision of the Royal Court made at the same time as or in connection with a sentence against which an appeal lies to the Superior Number of the Royal Court under the proviso to Article 24(1) of the Court of Appeal (Jersey) Law 1961, the appeal under this Part shall lie to the Superior Number of the Royal Court, and references in this Part to the Court of Appeal shall be construed accordingly."
- In April 2012, the Legislation Advisory Panel raised a query, following the court case of The Attorney General v E [2012] JRC019A (23 January 2012). In that case, the appeal was under Article 20 of the Law (length of notification period), and the Royal Court held that it had no power to order that the Defendant’s costs be paid out of public funds and stated that had the power been available to it, it would have exercised its discretion and awarded costs to the Defendant. The judgment stated that this was an oversight in the Law, which required remedy.
- If the revised wording of Article 18(3), above, is adopted, an appeal under Article 20 of the Law will no longer be taken to be an appeal in criminal proceedings, so Article 2 of the Civil Proceedings (Jersey) Law 1956 will apply. Article 2(1) reads as follows:
2 Power of Royal Court to award costs
(1) Subject to the provisions of this Part and to rules of court made under the Royal Court (Jersey) Law 1948, the costs of and incidental to all proceedings in the Royal Court shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid.
Notification Requirements – discretion
- A working group, comprising the Minister for Home Affairs, the Chief Officer, Home Affairs, the Magistrate and representatives from the Law Officers’ Department have been reviewing the issue of the Court’s discretion in relation to notification requirements.
- Article 4 of the Sex Offenders Law provides that the Court may exempt certain people from notification requirements:
(1) This Article applies –
(a) where a person has been convicted of an offence under Article 4.1 of the Loi (1895) modifiant le droit criminel (sexual intercourse with a girl aged over 13 years but under 16 years); and at the time of the offence the convicted person had not attained the age of 20 years; or
(b) where a person has been convicted of the customary law offence of indecent exposure, gross indecency or the crime of sodomie.
(2) A court may, when sentencing or otherwise dealing with the person, order that the person shall not become subject to the notification requirements of this Law.
- Therefore, the Court could currently exercise discretion in a case of unlawful sexual intercourse where the girl is 13 and the boy is 19. Conversely, however, where there has been willing sexual activity, which stops short of full intercourse, between a 15 year old girl and a 17 year old boy, for example, this discretion does not exist and the boy would become subject to notification requirements.
- Initially, the group considered whether this anomaly should be addressed by introducing a discretion in relation to consensual sexual acts, which stopped short of full intercourse, where young people of a similar age (13 to 17) were involved. However, it was felt that if a provision were to be included relating to consent, defendants would be more likely to seek to argue the point in order to avoid being made subject to notification requirements, which would increase the likelihood of the ‘victim’ having to come to court to be cross-examined on whether or not they had consented. This would not be desirable and was, therefore, not thought to be a viable suggestion.
- On this basis, the group agreed that rather than give the Court the choice as to whether or not to make the ‘offender’ subject to notification requirements, the exemption contained in Article 4(1)(a) of the Law would be removed and the Court would have no option but to make the offender subject to notification requirements, as is the case in the UK.
- However, the Court can then use its discretion under Article 5(4) of the Law to impose a shorter minimum period than the ‘normal’ 5 years for which the person would be subject to notification requirements. It was agreed that the majority of these cases would be likely to be heard in the Magistrate’s Court as, where an offender is likely to receive a prison sentence of longer than 12 months, they are unlikely to be made subject to notification requirements for less than the ‘normal’ minimum period of 5 years.
- Notwithstanding the above, as the wording of Article 5(4) causes the Court to take into account the risk of sexual harm to the public posed by the individual, it would be nonsensical for the Court to impose a notification period of only a matter of days or weeks as this would be too short a time scale to assess the risk posed.
- It is accepted that in cases where the young people are of a very similar age, the younger person is almost 16, and both parties are consenting, it is unlikely that the case would come to Court as it would not be deemed to be in the public interest. Therefore, in relation to the cases that do make it to Court, it is not unreasonable to make the ‘offender’ subject to notification requirements. The ‘offender’ would then need to come back to the sentencing Court to apply to no longer be subject to the notification requirements upon the expiry of the minimum period (Article 5(5)). The Attorney General could also make the application (Article 5(5A)).
- It was felt that Article 4(1)(b) should then be further amended to remove the references to ‘gross indecency’ and ‘sodomie’ because, where the two parties are over the age of 16, are consenting, and no other person under the age of 16 is present, the Law does not apply by virtue of Articles 2(2) and 2(3) respectively:
(2) The customary law offence of gross indecency is not an offence to which this Law applies if –
(a) it is committed between consenting persons who have attained the age of 16 years; and
(b) it is committed in the presence of no other persons or in the presence of persons all of whom have attained the age of 16 years.
(3) Where an act of sodomie constitutes the crime of sodomie and –
(a) the act is committed between consenting persons who have attained the age of 16 years; and
(b) the act takes place in public or in a lavatory to which the public have, or are permitted to have, access, whether on payment or otherwise,
the offence is not an offence to which this Law applies if the act of sodomie takes place in the presence of no other persons or in the presence of persons all of whom have attained the age of 16 years.
- Ultimately, therefore, Article 4 would only give the Court the discretion not to make a person subject to notification requirements where they had been convicted of the customary offence of indecent exposure. The rationale for this being that indecent exposure is not always a sexual offence. The amended Article 4 would then read along the following lines:
(1) This Article applies where a person has been convicted of the customary law offence of indecent exposure.
(2) A court may, when sentencing or otherwise dealing with the person, order that the person shall not become subject to the notification requirements of this Law.
Executive Officer, Home Affairs Department
April 2013
gov.je