About this case:

• Court:
  Court of Appeal
• Judge:
  Lord Justice Treacy

Finding that the enhanced notification requirements did not breach Article 7 of the European Convention on Human Rights, Lord Justice Seamus Treacy said the provisions reflected “the need for an effective scheme for preventative and deterrent purposes rather than punitive penalty”.

Background

In 2001, Eamon Foley was convicted of raping a 91-year-old woman. He was sentenced to 16 years’ imprisonment and was released in 2008. Part of Mr Foley’s sentence was a requirement to sign the Sex Offenders Register, subject to the notification requirements contained in Part 1 of the Sex Offenders Act 1997.

Notification pursuant to the Sex Offenders Act 1997

Part 1 of the Sex Offenders Act 1997 says that a person subject to the notification requirements shall, before the end of the period of 14 days, notify the police of his name, date of birth, and home address. A person subject to the notification requirements must also notify the police of any change of name, change of address, or if he has “resided or stayed, for a qualifying period, at any premises in the United Kingdom the address of which has not been notified to the police”. The “qualifying period” within the act was defined as “a period of 14 days”; or “two or more periods, in any period of 12 months, which (taken together) amount to 14 days”.

Failure to comply with the requirements rendered a person “liable on summary conviction to a fine… or to imprisonment for a term not exceeding six months, or to both”.

Since Mr Foley was sentenced to a term of greater than 30 months imprisonment, the applicable period for notification was an “indefinite period”.  

Notification pursuant to the Sex Offences Act 2003

While Mr Foley was in custody serving his sentence, the requirements of the Sex Offenders Act 1997 were replaced by more onerous notification requirements under the Sexual Offences Act 2003.

The notification requirements under Part 2 of the Sexual Offences Act 2003 states that offenders must, within the period of 3 days of release, notify the police of the following information:

1. his date of birth;
2. his national insurance number;
3. his name on the relevant date and, where he used one or more other names on that date, each of those names;
4. his home address on the relevant date;
5. his name on the date on which notification is given and, where he uses one or more other names on that date, each of those names;
6. his home address on the date on which notification is given;
7. the address of any other premises in the United Kingdom at which, at the time the notification is given, he regularly resides or stays.

Any change of address must be notified within seven days, and relevant offenders must notify the police if they are going to be absent from their home address for more than three days.

Notification must be made annually.

Failure to comply, without reasonable excuse, with the notification requirements is an offence, and Section 91(2) of the Sexual Offences Act 2003 states:

Failure to comply

On 1 February 2015, Mr Foley failed, without reasonable excuse, to comply with the notification requirements in the Sexual Offences Act 2003 by not making an annual re-notification.

In May 2017, Mr Foley was convicted and given a determinate custodial sentence of one year (six months in custody and six months on licence).

In the Court of Appeal, Mr Foley sought leave to appeal against his conviction. The Court considered the following matters:

• Whether the provisions of section 91 of the Sexual Offences Act 2003 are compatible with Article 7 of the European Convention on Human Rights (ECHR) and if not, whether the court ought to make a declaration of incompatibility;
• Whether a determination that section 91 is not compatible with the ECHR rights of the applicant may afford a “reasonable excuse” (as provided for by section 91(1)(a)) for non-compliance) and a defence to the charge; and
• If not, whether the sentencing judge may have regard to such declaration of incompatibility in determining the appropriate sentence for the offence.

Compatibility with the European Convention on Human Rights

Article 7(1) of the ECHR (no punishment without law) states:

Considering ECtHR case law on notification requirements, Lord Justice Treacy was satisfied that the enhanced notification requirements did not breach Article 7 ECHR – not amounting “to a ‘penalty’ as they do not, ultimately, require more than mere registration and as they operate completely separately from the ordinary sentencing procedures”.

Lord Justice Treacy noted that the notification requirements were more onerous under the Sexual Offences Act 2003, and that failure to comply carried a greater maximum penalty, however, the Court was satisfied that the requirements in themselves were not a penalty under Article 7 and not any more part of a sentencing regime than were the requirements under the Sex Offenders Act 1997.

Refusing the application for leave to appeal, the Court said the provisions reflected “the need for an effective scheme for preventative and deterrent purposes rather than punitive penalty”.

• by Róise Connolly for Irish Legal News