Sex Offenders (Amendment No. 2) (Jersey) Law 201-

Information about the publication of Ministerial Decisions

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

An accurate record of “Ministerial Decisions” is vital to effective governance, including:

demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision
providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made 19 May 2014:

Decision Reference: MD-HA-2014-0034
Decision Summary Title :	Sex Offenders (Amendment No.2) (Jersey) Law 201-		Date of Decision Summary:	12 May 2014
Decision Summary Author:	Executive Officer Home Affairs		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	n/a
Written Report Title :	Sex Offenders (Amendment No.2) (Jersey) Law 201-		Date of Written Report:	12 May 2014
Written Report Author:	Executive Officer Home Affairs		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: Sex Offenders (Amendment No.2) (Jersey) Law 201-.
Decision(s): The Minister approved the draft Sex Offenders (Amendment No.2) (Jersey) Law 201- and directed that it be lodged ‘au Greffe’.
Reason(s) for Decision: The draft Sex Offenders (Amendment No.2) (Jersey) Law 201- addresses an issue that had been raised in respect of appeal routes under the Law and ensures that a person who is appealing both the criminal sentence and any connected order has the appeal heard by the same tribunal.
Resource Implications: Nil
Action required: The Executive Officer, Home Affairs to request the Greffier of the States to arrange for the draft Law to be lodged ‘au Greffe’ for consideration by the States on 1 July 2014.
Signature:		Position: Minister for Home Affairs
Date Signed:		Date of Decision (If different from Date Signed):

Sex Offenders (Amendment No. 2) (Jersey) Law 201-

Report

The draft Sex Offenders (Amendment No.2) (Jersey) Law 201-

The draft Sex Offenders (Amendment No.2) (Jersey) Law 201- (‘the draft Law’) makes a number of amendments to the principal Law, the Sex Offenders (Jersey) Law 2010 (‘the Law’) concerning appeals.

When the Law received Royal Assent on 21 July 2010, a number of issues were raised by the Ministry of Justice Legal Advisers, 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 under UK law measures like these are treated as 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 currently 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 was 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.

Article 3 of the draft Law amends Article 18 of the Law so that when an appeal against sentence for a sexual offence is to be heard by the Superior Number of the Royal Court, a related appeal under the Law may be heard by the same tribunal, even though the matter under the Law is inherently a civil, rather than a criminal matter.

Financial and manpower implications

There are no additional financial or manpower implications arising from this draft Law.

Human Rights

The notes on the human rights aspects of the draft Law in the Appendix have been prepared by the Law Officers’ Department and are included for the information of States Members. They are not, and should not be taken as, legal advice.

APPENDIX

Human Rights Note on the Sex Offenders (Amendment No.2) (Jersey) Law 201-

This Note has been prepared in respect of the Sex Offenders (Amendment No.2) (Jersey) Law 201- (“the draft Law”) by the Law Officers’ Department. It summarises the principal human rights issues arising from the contents of the draft Law and explains why, in the Law Officers’ opinion, the draft Law is compatible with the European Convention on Human Rights (“ECHR”).

Article 6 ECHR

The draft Law amends the Sex Offenders (Jersey) Law 2010 (“the principal Law”). The effect of the amendment to Article 18 of the principal Law shall be that any appeal against a decision or order by the Royal Court under the Law which is made at the same time as or in connection with a criminal sentence, shall lie to the Superior Number of the Royal Court as opposed to the Court of Appeal.

This revision ensures that an appellant, who appeals both his criminal sentence and any connected order made under the principal Law, has such an appeal heard by the same appellate body.

Such a provision potentially engages Article 6 ECHR. Article 6 provides that:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”

The Royal Court may make decisions or orders under the principal law which may inter alia subject a person to the notification requirements under the Law and specify a minimum period before the notifier may apply to no longer be subject. An order made under the principal Law may also restrict the person’s movements and/or interactions with other persons.

The first instance decision therefore engages Article 6 ECHR as there will clearly be a determination of a person’s civil rights. The principal Law is compatible with Article 6 ECHR though because the Royal Court is a self-evidently independent and impartial tribunal. Any appeal against such a decision, under the principal Law as it is currently in force, is also compliant because the Court of Appeal too satisfies the criteria for Article 6 ECHR.

The draft Law will simply provide that appeals against such civil decisions as described above will be heard by the Superior Number of the Royal Court, concurrently with any appeal against criminal sentence. The Superior Number consists of the Bailiff , the Deputy Bailiff or an Ordinary Judge of the Court of Appeal (or a Commissioner) and no less than 5 Jurats (Article 23, Court of Appeal (Jersey) Law 1961). This emanation of the Royal Court is therefore clearly capable, just like the Inferior Number and Court of Appeal, of satisfying the criteria of independence and impartiality under Article 6 ECHR. Further protection is provided for in Article 16 of the Court of Appeal (Jersey) Law which provides that no person may sit on the hearing of an appeal to the Superior Number if that person sat as part of the court below in passing the sentence or the court hearing any proceedings preliminary or incidental to such appeal.

For the reasons set out above, it is considered that the draft Law is compatible with Article 6 ECHR.

No further ECHR issues arise under the draft Law.