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Alice H
Alice H, Solicitor/Partner
Category: Law
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Experience:  Partner in national law firm
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I was sentenced in 2001. In 2003 a sentencing guideline amendment

Customer Question

I was sentenced in 2001. In 2003 a sentencing guideline amendment was made to the law under which I was convicted. The application of this change was not made mandatory to sentences made prior to this guide being changed. In 2011, over 8 years after the amendment was made & just weeks before my sentence was to end I was informed this change was being applied to my case. My sentence was now to be considerably changed.
Any ideas if I can appeal this decision in law?
Regards,
Steve
Submitted: 1 year ago.
Category: Law
Expert:  Alice H replied 1 year ago.
My name is ***** ***** I'm happy to help with your question today.
Could you give a little more detail about the offence & what the change of law was exactly?
Customer: replied 1 year ago.

My offence was indecent assault. I was sentenced to 15 months custody with 2 years extended licence. At the time of conviction this was correctly subject to a 10 year notification period.

The amendment was a table of guidance for sentencing that affected the length of notification period. A sentence of 30 months or over (this includes custodial sentence + any extended licence period) was now to have an indefinite notification period.

Backdating this amendment was not made mandatory, rather left to the police authority who were responsible for reporting to during the notification period.

The original sentence was not reviewed, even though the effect of this amendment could (& in my case would) be considerable, & would also have quite logically influenced the original sentence when being decided.

My police offending managers for the first 8 years of my notification period considered me to be low-risk & therefore only visited me once a year to re-sign, never expressing any knowledge of the amendment to the law or any desire to change the end date of my notification period.

Just a few weeks prior to the end of my notification period (almost 10 years from conviction & over 8 years from the amendment to the law), I was informed by my police offender manager of the time that my sentence had just been reviewed & the amendment was now to be applied; therefore I was now considered to be on indefinite notification.

I have not been convicted, charge or cautioned for any other sexual or violent offence since release, or ever had any rumour of any such offence either. The indefinite notification period was meant for serious re-offenders, not those considered low-risk such as myself.

Any ideas?

Regards,

Expert:  Alice H replied 1 year ago.
Yes. I have the case law seems to have resulted in an amendment in 2012 giving appeal rights to have the decision reviewed. I am currently commuting on a train with a poor wi-fi connection. As soon as I can I will post the full answer.
Expert:  Alice H replied 1 year ago.
In April 2010, the UK Supreme Court ruled that indefinite notification periods were incompatible with Article 8 of the European Convention on Human Rights (Right to respect for private and family life) because they do not contain any mechanism for the review of the justification for continuing the requirements in individual cases.
This effectively means that those currently subject to lifetime registration should have the right to an appeal where they will have the opportunity to demonstrate that their risk has been minimised to a degree that it is no longer necessary for them to be subject to the notification requirements.
As a result of this case, the Sexual Offences Act 2003 (Remedial) Order 2012 came into force on 30 July 2012 and allows individuals who are subject to indefinite notification requirements the opportunity to apply to the police for a review of this requirement, after a fixed period of time has elapsed.
The review would be carried out by the police on the basis of a range of factors, including information provided from the Responsible Authority and Duty to Co-operate agencies which operate within the Multi-Agency Public Protection Arrangements (MAPPA) framework (under section 325 of the Criminal Justice Act 2003.
For those on indefinite notification a period of 15 years has to elapse before an application can be made to the police to have the order removed. The application process and roadmap for removal is set out in detail in this publication from the Home Office which also includes the application form:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/98378/review-notification-requirements.pdf
Customer: replied 1 year ago.

I was hoping to appeal the decision of the police from imposing a non-mandatory amendment in an arbitrary way. I couldn't imagine a prisoner being told on the day of release that their sentence had been extended without a court review at the very least.

Expert:  Alice H replied 1 year ago.
The only way to have such a decision reviewed is by way of Judicial Review in the High Court. But there are strict time limits: JR must be commenced promptly and no more than 3 months from the date of the decision under review. If the decision in your case was made very recently you might still be able to apply for JR, but if the time limit has passed then your only route is as mentioned above. If you take this route and get turned down then that decision could be amenable to JR. However, there is nothing in the statutory framework which says that the police must refer a case to the courts before the notification period is changed: looking at ss.80 - 91 Sexual Offences Act 2003 the words "will change" appear in the commentary suggesting the police had no choice and the law imposed the mandatory change.
Customer: replied 1 year ago.

I have been informed by a legal expert in the field that "legitimate expectation" may be a valid argument regarding the police authority changing their stance. Also that "status" in human rights law may also be applied, as the law has changed again, & now more serious convictions aren't treated as severely as mine. I shall be looking into both arguments in more detail.

Expert:  Alice H replied 1 year ago.
OK. Is there anything I can help you with?

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