JUDGMENT
R (on the application of F (by his litigation friend
F)) and Thompson (FC) (Respondents) v Secretary
of State for the Home Department (Appellant)
before
Lord Phillips, President
Lord Hope, Deputy President
Lord Rodger
Lady Hale
Lord Clarke
JUDGMENT GIVEN ON
21 April 2010
Heard on 3 and 4 February 2010
Appellant 1st Respondent
James Eadie QC Hugh Southey QC
Jeremy Johnson Adam Straw
(Instructed by Treasury
Solicitors)
(Instructed by
Stephensons)
2nd Respondent
Tim Owen QC
Pete Weatherby
(Instructed by Irwin
Mitchell)
1st Intervener 2nd Intervener
Lord Boyd of Duncansby
QC
Aidan O’Neill QC
James Mure QC Christopher Pirie
(Instructed by Scottish
Government Legal
Directorate Litigation
Division )
(Instructed by Balfour &
Manson )
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LORD PHILLIPS (with whom Lady Hale and Lord Clarke agree)
Introduction
1. Sexual offences can inflict harm whose consequences persist throughout the
lives of their victims and some sexual offenders never lose their predisposition to
commit sexual offences. Section 82 of the Sexual Offences Act 2003 (“the 2003
Act”) imposes on all who are sentenced to 30 months’ imprisonment or more for a
sexual offence the duty to keep the police notified of where they are living and of
travel abroad (“the notification requirements”). This duty persists until the day
they die. There is no right to a review of the notification requirements. These
appeals raise the question of whether the absence of any right to a review renders
the notification requirements incompatible with article 8 of the European
Convention on Human Rights (“the Convention”). That article provides:
“1. Everyone has the right to respect for his private and family life,
his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.”
2. These appeals arise out of two independent claims for judicial review. The
first was brought by F. When he was eleven years old he committed a number of
serious sexual offences, including two offences of rape, on a six year old boy. On
17 October 2005, having been convicted of these offences after a contested trial,
he was sentenced to 30 months’ imprisonment on each count concurrent. This
sentence automatically brought into effect the notification requirements.
3. The second claim was brought by Mr Thompson. He was born on 1 March
1951. On 12 December 1996 he was sentenced to 5 years’ imprisonment,
concurrent, on two counts of indecent assault on his daughter, together with other
concurrent sentences for assault occasioning actual bodily harm. This sentence
also brought into effect the notification requirements.
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4. Neither claimant was in a position to bring proceedings pursuant to section
7(1) of the Human Rights Act 1998 on the ground that the imposition of the
notification requirements unlawfully infringed his Convention rights, for section
6(2) of that Act precluded such a claim. Each commenced proceedings for judicial
review claiming a declaration that the notification requirements were incompatible
with article 8 of the Convention. The claims succeeded before the Divisional Court
(Latham LJ, Underhill and Flaux JJ) on 19 December 2008, whose decision was
upheld by the Court of Appeal (Dyson, Maurice Kay and Hooper LJJ) on 23 July
2009, [2010] 1 WLR 76. The ground on which the claims succeeded was a narrow
one. The courts below held that the notification requirements interfered with article
8 rights, that the interference was in accordance with the law and that it pursued
legitimate aims, namely the prevention of crime and the protection of the rights
and freedoms of others, but that the lack of any provision for review of the
notification requirements rendered these a disproportionate manner of pursuing
that legitimate aim.
5. It is not to be inferred from the judgments below that, had either claimant
been entitled to challenge, by way of a review, the notification requirements made
in his case, the challenge would have succeeded. The only issue raised by these
appeals is a general one. Does the absence of any right to a review render lifetime
notification requirements disproportionate to the legitimate aims that they seek to
pursue?
The statutory provisions
6. I propose to adopt, with some additions, the helpful summary of the
relevant statutory provisions set out by the Court of Appeal.
7. Statutory notification requirements for sex offenders were first introduced
by section 1(3) of the Sex Offenders Act 1997 (“the 1997 Act”). They were
automatic on conviction. Under the 1997 Act regime, the notification requirements
were to give the police details of the offender’s name, address and date of birth
within 14 days of conviction, and to notify any address at which he would be
staying for 14 days or longer.
8. The Criminal Justice and Courts Services Act 2000 (“the 2000 Act”)
reduced the initial notification time to 3 days and introduced a new requirement
that an offender notify the police if he intended to travel overseas in accordance
with regulations made by the Secretary of State. Regulations were made pursuant
to the 2000 Act which required that notification of travel should be made at least
48 hours prior to departure and that it should include the identity of the carrier, all
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points of arrival in destination countries, accommodation arrangements, return date
and point of arrival if known.
9. Under the 1997 and 2000 Acts the required notifications could be given
either by attending in person at a local police station or by sending a written
notification to any such station.
10. All these provisions were repealed by the 2003 Act. Section 82(1) of the
2003 Act contains a table which prescribes the notification periods for different
categories of offenders. As I have said, for persons who have been sentenced to
imprisonment or detention for 30 months or more, an indefinite period beginning
with “the relevant date” is prescribed. For present purposes the relevant date is
defined as the date of conviction (section 82(6)). Section 82(2) provides that,
where a person is under the age of 18 on the relevant date, the determinate periods
prescribed in the table are halved in respect of sentences shorter than 30 months.
11. Section 83 makes provision for initial notification. Thus, within 3 days of
the relevant date, the offender must notify to the police the information specified in
subsection (5), namely his date of birth; his national insurance number; his name
on the relevant date and, where he used one or more other names on that date, each
of those names; his home address on the relevant date; 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; his home address on the date on which notification is
given; and the address of any other premises in the United Kingdom at which, at
the time the notification is given, he regularly resides or stays.
12. Section 84 makes provision for the notification of changes in the
information given pursuant to section 83 within 3 days of the changes occurring.
This includes notification of the person’s “having 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…” (subsection (1)(c)). Subsection (6) provides that
“qualifying period” means (a) a period of 7 days, or (b) two or more periods, in
any period of 12 months, which taken together amount to 7 days.
13. Section 85 provides for periodic notification of the information specified in
section 83(5). Section 86(1) provides that the Secretary of State may by
regulations make provision requiring offenders who leave the United Kingdom to
give a notification under subsection (2) before they leave and a notification under
subsection (3) about their subsequent return. A notification under subsection (2)
must disclose the date on which the offender will leave; the country (or the first
country) to which he will travel and his point of arrival in that country; and any
other information prescribed by the regulations which the offender holds about his
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departure from or return to the United Kingdom or his movements while outside
the United Kingdom. A notification under subsection (3) must disclose any
information prescribed by the regulations about the offender’s return to the United
Kingdom.
14. Section 87(1) provides that a person gives a notification by “(a) attending at
such police station in his local police area as the Secretary of State may by
regulations prescribe…, and (b) giving an oral notification to any police officer, or
to any person authorised for the purpose by the officer in charge of the station”.
Section 87(4) provides that where a notification is given, the relevant offender
must, if requested to do so by the police officer or authorised person, allow the
officer or person to take his fingerprints and/or photograph any part of him.
15. Section 91(1) provides that a person commits an offence “if he – (a) fails,
without reasonable excuse, to comply with section 83(1), 84(1), 84(4)(b), 85(1),
87(4)…or any requirement imposed by regulations made under section 86(1)”.
Section 91(2) provides that a person guilty of an offence under this section is liable
on conviction on indictment to imprisonment to a term not exceeding 5 years and
on summary conviction to a term not exceeding 6 months or a fine or both.
16. Pursuant to section 86 the Secretary of State made the Sexual Offences Act
2003 (Travel Notification Requirements) Regulations 2004 (SI 2004/1220). These
require extremely detailed information to be given in relation to travel plans. Just
as in the case of information required by sections 83, 84 and 85, this information
had to be provided in person at a police station.
The approach to proportionality
17. In order to decide whether interference with a fundamental right is
proportionate to the legitimate end sought to be achieved the court has to ask the
questions identified by the Privy Council in de Freitas v Permanent Secretary of
Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 at p 80:
“whether: (i) the legislative objective is sufficiently important to
justify limiting a fundamental right; (ii) the measures designed to
meet the legislative objective are rationally connected to it; and (iii)
the means used to impair the right or freedom are no more than is
necessary to accomplish the objective.”
However, as Lord Bingham of Cornhill observed in Huang v Secretary of State for
the Home Department [2007] UKHL 11; [2007] 2 AC 167 at para 19, there is an
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overriding requirement to balance the interests of the individual against those of
society.
18. In this case the importance of the legislative objective has never been in
doubt. The prevention of sexual offending is of great social value and the
respondents have not suggested that, insofar as notification requirements play a
useful role in assisting to achieve this objective, they are not a proportionate means
of doing so. The debate has been as to the necessity and utility of imposing
notification requirements for life without any review. In respect of this debate the
observations of Lord Nicholls of Birkenhead in Wilson v First County Trust Ltd
(No 2) [2003] UKHL 40; [2004] 1 AC 816 at paras 62-64 are in point. He
remarked that when a court makes a value judgment in respect of proportionality
the facts will often speak for themselves, but that sometimes the court may need
additional background information tending to show, for instance, the likely
practical impact of the statutory measure. Such information may be provided in the
course of Parliamentary debate, and it is legitimate to have recourse to Hansard in
the search for it.
Domestic jurisprudence
19. The Court of Appeal considered three cases, to which this court has also
been referred, in which the relevant provisions of the 2003 Act, or its predecessor
the 1997 Act, were considered. The first was In re an application by Kevin
Gallagher for Judicial Review [2003] NIQB 26, a decision of Kerr J sitting in the
High Court of Northern Ireland. The applicant had been sentenced to 33 months’
imprisonment on three counts of indecent assault and, in consequence, become
subject to the automatic reporting restrictions. He complained that these were
disproportionate in that they were automatic. The trial judge had no jurisdiction to
disapply or vary them where it was clear to him that they were unnecessary or
inappropriate. The applicant was particularly concerned with the obligation to give
notification of proposed travel arrangements added by the 2000 Act as he moved
regularly across the border to the Republic of Ireland, usually for very short
periods. The decision and reasoning of Kerr J appear from the following
paragraphs of his judgment.
“22 . . . the absence of a dispensing provision whereby the applicant
might apply to be relieved of the reporting requirements after a
stipulated period will not render the provisions automatically
disproportionate. That feature is undoubtedly relevant to the issue
but it alone cannot dictate the outcome of the examination of a
scheme’s proportionality.
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23. It is inevitable that a scheme which applies to sex offenders
generally will bear more heavily on some individuals than others.
But to be viable the scheme must contain general provisions that will
be universally applied to all who come within its purview. The
proportionality of the reporting requirements must be examined
principally in relation to its general effect. The particular impact that
it has on individuals must be of secondary importance.
24. The gravity of sex offences and the serious harm that is caused to
those who suffer sexual abuse must weigh heavily in favour of a
scheme designed to protect potential victims of such crimes. It is
important, of course, that one should not allow revulsion to colour
one’s attitude to the measures necessary to curtail such criminal
behaviour. A scheme that interferes with an individual’s right to
respect for his private and family life must be capable of justification
in the sense that it can be shown that such interference will achieve
the aim that it aspires to and will not simply act as a penalty on the
offender.
25. The automatic nature of the notification requirements is in my
judgment a necessary and reasonable element of the scheme. Its
purpose is to ensure that the police are aware of the whereabouts of
all serious sex offenders. This knowledge is of obvious assistance in
the detection of offenders and the prevention of crime. If individual
offenders were able to obtain exemption from the notification
requirements this could – at least potentially – compromise the
efficacy of the scheme.
26. By the same token the fact that the notification requirements
persist indefinitely does not render the scheme disproportionate.
While this is unquestionably an inconvenience for those who must
make the report, that inconvenience must be set against the
substantial benefit that it will achieve of keeping the police informed
of where offenders are living and of their travel plans so that further
offending may be forestalled both by rendering detection more easily
and deterring those who might be tempted to repeat their offences.
27. I am therefore satisfied that the notification requirements are
proportionate and the application for judicial review must be
dismissed.”
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20. This passage is of obvious relevance, albeit that Kerr J was considering
submissions directed at the role of the trial judge. I observe that he treated as
axiomatic both the “substantial benefit” to which he referred in paragraph 26 and
the statement in paragraph 25 that it could, at least potentially, compromise the
efficacy of the scheme if individual offenders were able to obtain exemption from
the notification requirements.
21. In Forbes v Secretary of State for the Home Department [2006] EWCA Civ
962; [2006] 1 WLR 3075 Sir Igor Judge P endorsed Kerr J’s analysis of the
principles underpinning and justifying the notification requirements. As the Court
of Appeal observed, however, Forbes was not concerned with indefinite
notification requirements, nor with the possibility of a review of these.
22. A v Scottish Ministers [2007] CSOH 189; 2008 SLT 412 concerns the 2003
Act, as it applies in Scotland, and regulations made pursuant to it. The provisions
are not in all respects identical in the two jurisdictions. A brought a petition for
judicial review, challenging the compatibility of these provisions with article 8 of
the Convention. The petition was refused by the Lord Ordinary and a reclaiming
motion was considered by the Inner House on 19 to 21 January. The First Division
has reserved judgment until after the court has delivered judgment in this appeal.
In these circumstances the court granted permission to intervene in these appeals to
both the Lord Advocate and to A.
23. The Lord Ordinary reviewed the relevant jurisprudence in a lengthy
judgment and concluded that the notification requirements were proportionate to
the legitimate aim at which they were directed and were compatible with article 8
of the Convention (paragraph 58). As the Court of Appeal observed, however, this
conclusion was not easy to reconcile with the following passage in paragraph 52 of
his judgment:
“In light of the importance of the aims being pursued I am satisfied
that the rigid and indeterminate nature of the scheme under
discussion does not result in this petitioner having to bear an
individual and excessive burden. That is not to say that if the facts of
the case were different the same view would necessarily be arrived
at. For example, the proportionality of an indefinite interference with
the art 8 rights of an elderly man who had been in no trouble for very
many years might cause the issue to be focused in quite a different
way.”
The Lord Ordinary had earlier accepted the proposition that his task was to look at
the facts as they applied to the applicant rather than in the abstract, albeit in the
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context of the general aims of the legislation (para 49), and this is what he appears
to have done. His judgment did not focus on the question of whether the lack of
any review of the notification requirements could be justified.
The Strasbourg jurisprudence
24. An appropriate starting point when considering the Strasbourg
jurisprudence is the following statement of the Strasbourg Court in Stubbings &
Others v United Kingdom (1996) 23 EHRR 213 at para 62 in relation to the
positive obligation owed by States to protect individuals against sexual abuse:
“Sexual abuse is unquestionably an abhorrent type of wrongdoing,
with debilitating effects on its victims. Children and other vulnerable
individuals are entitled to state protection, in the form of effective
deterrence, from such grave types of interference with essential
aspects of their private lives.”
The reference to deterrence was particularly relevant on the facts of that case, and
the duty extends to taking such other steps as are reasonable to prevent the
commission of sexual offences.
25. In Ibbotson v United Kingdom (1998) 27 EHRR CD 332, an admissibility
decision, the issue was whether the notification requirements under the 1997 Act
constituted a “penalty” for the purposes of article 7 of the Convention. The
Commission held that it did not, remarking that the measures did not go beyond a
requirement to furnish to the authorities information which could, in any event, be
in the public domain.
26. The same conclusion was reached in another admissibility decision,
Adamson v United Kingdom (1999) 28 EHRR CD 209. The Court reached the
following conclusion as to the purpose of the notification requirements:
“. . . the purpose of the measures in question is to contribute towards
a lower rate of reoffending in sex offenders, since a person’s
knowledge that he is registered with the police may dissuade him
from committing further offences and since, with the help of the
register, the police may be enabled to trace suspected reoffenders
faster.”
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27. The applicant in that case also sought to make an article 8 challenge to the
notification requirements. In finding such a challenge inadmissible the Court held
that the notification requirements amounted to an interference with private life
within article 8(1). The requirements were, however, “in accordance with the law”
and they pursued the legitimate aims of “the prevention of crime and the protection
of the rights and freedoms of others”. It was thus necessary to consider whether the
measures were proportionate. This required weighing the fact that they required no
more than registration of information with the police against the importance of the
aims pursued by the Act, namely to protect individuals from grave forms of
interference. The Court found the notification requirements proportionate and the
complaint manifestly ill-founded.
28. As the Court of Appeal observed at paragraph 21 the Court did not
expressly consider the impact of the lack of a mechanism for review since that was
not the subject of the complaint.
29. Massey v United Kingdom (Application No 14399/02) (unreported) 8 April
2003 was another case where the Court ruled an application in relation to the
notification requirements inadmissible. In that case the applicant made a discrete
complaint that there was no “assessment or review” of the necessity for
registration in his particular case. The Court of Appeal at paragraph 23 treated this
as a complaint that focussed on the moment when the sentence was imposed. I am
not sure that this reading is justified. While “assessment” naturally applies to the
time of sentence “review” suggests a subsequent process. But this complaint was a
subsidiary point to more fundamental challenges to the applicant’s conviction and
sentence and the absence of any review of the notification requirements received
no separate consideration by the Court.
30. I now turn to the Strasbourg decisions that have the greatest relevance, and
which were particularly relied upon by the respondents. The second of these postdates the decision of the Court of Appeal. In S and Marper v United Kingdom
(2008) 48 EHRR 1169 the first applicant had been charged with attempted robbery
and acquitted. The second applicant had been charged with harassment of his
partner, but the case against him was formally discontinued. Each had had
fingerprints, cellular samples and DNA samples taken. They complained that the
fact that the police were lawfully entitled to retain these indefinitely infringed their
article 8 rights.
31. In holding that there had been a violation of article 8 the Court had regard
to a number of matters: the blanket and indiscriminate nature of the power of
retention; the fact that the nature and gravity of the suspected offence was
immaterial, as was the age of the suspected offender; the fact that the power to
retain was unlimited in time and
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“…in particular, there is no provision for independent review of the
justification for the retention according to defined criteria, including
such factors as the seriousness of the offence, previous arrests, the
strength of the suspicion against the person and any other special
circumstances.”
32. In Bouchacourt v France (Application No 5335/06) (unreported) 17
December 2009 an unsuccessful application was made by a man who had been
sentenced to ten years’ imprisonment for rape and sexual assault on minors. This
resulted in his name being placed automatically on a Register of Sexual and
Violent Offenders. It also resulted in an obligation to confirm his address every
year and to give notice of any change of address. This could be done by registered
letter including a receipt or invoice, not more than three months old, containing the
applicant’s name and address. How long an offender’s name remained on the
register depended on the gravity of the offence, but it could be for twenty or thirty
years.
33. The Court held that there had been no violation of article 8, for reasons that
appear in the following paragraphs of its judgment:
“67. Comme l’indique le Gouvernement, il s’agit d’une durée
maximale. Quoi qu’importante en l’espèce puisqu’elle est de trente
ans, la Cour observe que l’effacement des données est de droit, une
fois ce délai écoulé, lequel se compute dès que la décision ayant
entraîné l’inscription cesse de produire tous ses effets. La Cour
relève également que la personne concernée peut présenter une
demande d’effacement au procureur de la République si la
conservation des données la concernant n’apparaît plus pertinente
compte tenu de la finalité du fichier, au regard de la nature de
l’infraction, de l’âge de la personne lors de sa commission, du temps
écoulé depuis lors et de sa personnalité actuelle (paragraphe 16,
article 706-53-10 du CPP). La décision du procureur est susceptible
de recours devant le juge des libertés et de la détention puis devant le
président de la chambre de l’instruction.
68. La Cour considère que cette procédure judiciaire d’effacement
des données assure un contrôle indépendant de la justification de la
conservation des informations sur la base de critères précis (S. et
Marper, précité, § 119) et présente des garanties suffisantes et
adéquates du respect de la vie privée au regard de la gravité des
infractions justifiant l’inscription sur le fichier. Certes, la
mémorisation des données pour une période aussi longue pourrait
poser un problème sous l’angle de l’article 8 de la Convention, mais
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la Cour constate que le requérant a, en tout état de cause, la
possibilité concrète de présenter une requête en effacement des
données mémorisées alors que la décision ayant entraîné son
inscription a cessé de produire tous ses effets. Dans ces conditions, la
Cour est d’avis que la durée de conservation des données n’est pas
disproportionnée au regard du but poursuivi par la mémorisation des
informations.”
Unofficial translation:
“67. As the Government points out, it is a maximum duration.
Although significant in this case, since it is of thirty years, the Court
observes that what is important in this case, where the period is thirty
years, is that the deletion of information is of right once the time has
lapsed, as calculated from the date on which the sentence giving rise
to registration ceases to have effect. The Court also notes that the
person concerned can apply to the prosecutor for the deletion of the
information if its preservation no longer appears to be relevant,
taking into account the purpose of the register and having regard to
the nature of the offence, the age of the person at the time that it was
committed, the length of time that has lapsed since then, and the
offender’s current character (paragraph 16, Article 706-53-10 of the
Code of Criminal Procedure). The prosecutor’s decision is subject to
appeal to the juge des libertés et de la detention, then to the president
of the investigating chamber.
68. The Court considers that this judicial procedure for removing
the information ensures independent review of the justification for
the retention of the information according to defined criteria (S and
Marper, already cited, para 119) and provides adequate and
sufficient safeguards in relation to respect for private life, with
regard to the seriousness of the offences justifying registration on the
sex offenders’ register. Certainly, the retention of data for so long a
period could be problematic in terms of Article 8 of the Convention,
but the Court notes that the Applicant has in any case the concrete
opportunity to apply for the deletion of the data retained when the
sentence giving rise to his registration has ceased to have effect. In
these circumstances, the Court is of the opinion that the length of
time that the data is kept is not disproportionate to the aim pursued
by the storage of the information.”
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The effect of the jurisprudence
34. The Court of Appeal found in paragraph 35 that there was no authority
binding on the court which decided the question of whether the imposition of
indefinite notification requirements without the possibility of review was itself a
disproportionate interference with an offender’s article 8 rights. It might have held
that there was no such authority, binding or otherwise. That analysis holds good,
despite the decisions in S and Marper and Bouchacourt. Those decisions show,
however, that the Strasbourg Court considers that the possibility of reviewing the
retention of sensitive personal information and notification requirements in respect
of such information is highly material to the question of whether such retention
and notification requirements are proportionate and thus compliant with article 8.
Paragraph 68 of Bouchacourt suggests that, but for the right to apply for deletion
of the data retained, the lengthy registration period would have been held
disproportionate.
The decision of the Divisional Court
35. Giving a judgment with which the other two members of the court agreed,
Latham LJ found that there was general justification for continuing notification
requirements for the lifetime of serious sexual offenders. He held, however, that
the real question was
“whether an offender who can clearly demonstrate that he presents
no risk, or no measurable risk, of re-offending should be precluded
from obtaining a review of the notification requirements.”
36. Latham LJ gave a negative answer to that question. He held that it was not
justifiable in article 8 terms to deny to a person who believed himself to be in a
position to establish that he presented no risk the opportunity to do this.
The decision of the Court of Appeal
37. The Court of Appeal considered the impact of the notification requirements
imposed by the 2003 Act. The court concluded that counsel for the Secretary of
State was wrong to describe these as no more than very slight interference with
article 8 rights. The court annexed in an appendix to its judgment examples of the
difficulty that the requirements posed to those who needed to travel frequently and
at short notice, either within the jurisdiction or abroad. The court also made the
point that the notification requirements are capable of leading to the disclosure to
third parties of the fact that the person subject to them has a past conviction for a
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sexual offence. For these reasons, while the impact of the notification requirements
might be modest for some, for others they would be more substantial.
38. The court considered the submission that a right of review would
compromise the utility of the notification requirements as a tool for the prevention
and detection of sexual offences. It did not accept that submission for the reasons
set out in paragraph 44:
“. . . The aim of the notification requirements regime is to assist in
the prevention and detection of sexual offences. The assumptions
that underpin the provision for indefinite notification requirements
are that (i) there is a risk that those who have committed serious
sexual offences (ie offences which attract a custodial sentence of at
least 30 months in length) may commit further sexual offences for
the rest of their lives; and (ii) the notification requirements will assist
the police in preventing and detecting such offences and may deter
offenders from further offending. These two assumptions are
falsified in a case where it is clear that there is no real risk that the
sexual offender will re-offend. No purpose is served by keeping on
the Sexual Offences Register a person of whom it can confidently be
said that there is no risk that he will commit a sexual offence. To
keep such a person on the police data base does nothing to promote
the aims of the notification requirements. To say that the data base is
no longer complete begs the question of what a complete data base
should comprise. In our judgment, it should not include offenders
who no longer present a risk of sexual offending.”
39. The court rejected the submission that resource implications were a bar to
granting a right of review and that it would be difficult to operate a review process.
It observed that a flood of applications could be avoided by setting a high
threshold for review as to the time that an application could first be made, the
frequency of applications and what had to be proved in order to succeed on the
review. To the submission that it would be difficult for applicants to demonstrate
that they no longer presented a risk of sexual offending the court observed that this
was not a reason for depriving them of the opportunity of attempting to do this,
regardless of the circumstances of the particular case.
40. For these reasons the court concluded that an offender was, as a matter of
principle, entitled to have the question of whether the notification requirements
continued to serve a legitimate purpose determined on a review. This entitlement
was even stronger in the case of child offenders because of the fact that children
change as they mature.
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Discussion
41. The issue in this case is one of proportionality. It is common ground that the
notification requirements interfere with offenders’ article 8 rights, that this
interference is in accordance with the law and that it is directed at the legitimate
aims of the prevention of crime and the protection of the rights and freedoms of
others. The issue is whether the notification requirements, as embodied in the 2003
Act, and without any right to a review, are proportionate to that aim. That issue
requires consideration of three questions. (i) What is the extent of the interference
with article 8 rights? (ii) How valuable are the notification requirements in
achieving the legitimate aims? and (iii) To what extent would that value be eroded
if the notification requirements were made subject to review? The issue is a narrow
one. The respondents’ case is that the notification requirements cannot be
proportionate in the absence of any right to a review. The challenge has been to the
absence of any right to a review, not to some of the features of the notification
requirements that have the potential to be particularly onerous.
42. I turn to consider the extent of interference with article 8 rights that can
result from the notification requirements. When the Strasbourg Court held in
Adamson that the notification requirements interfered with private life within the
meaning of article 8.1 the interference identified was the obtaining and retention of
information by law enforcement authorities. The information, name, date of birth
and address was, on the face of it innocuous. The reality is, however, that it is
implicit in the requirement to notify the police of his name and address that the exoffender will have to explain the purpose of the notification. The significance of
notification is that it links the ex-offender with the recorded particulars of his
conviction. Thus the notification requirements have been treated as being
equivalent to being placed on a Sexual Offences Register and it is convenient to
use this terminology, as did the Court of Appeal, see paragraph 44. The
notification requirements become a much more serious interference with private
life when the information that the individual is on the Sexual Offences Register is
conveyed to third parties. As Mr Eadie QC pointed out, one of the objects of the
notification requirements is that this information should be conveyed to third
parties in circumstances where this is necessary for the prevention of further
offending, as in some circumstances it will be. He rightly submitted that the
possibility of such use should not be held to add to the case that the requirements
are disproportionate. He further submitted that the court should proceed on the
premise that the information will only be conveyed to third parties where this is
necessary. I do not accept this submission. Giving information to the local police
in relation to one’s address and one’s movements coupled with the explanation that
this is necessary because one is on the Sexual Offences Register will necessarily
carry the risk that the information may be conveyed to third parties in
circumstances where this is not appropriate.
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43. This said, the fact that under the 1997 Act the relevant notification could be
made in writing and that the information to be provided was limited meant that the
task of giving the notification could be described as a mere inconvenience. This
ceased to be the case with the increased requirements imposed first by the 2000
Act and then by the 2003 Act. These requirements, which included the requirement
to give notification in person at a police station, imposed a considerable burden on
anyone who was a frequent traveller, whether within or outside the jurisdiction, as
illustrated by the examples given by the Court of Appeal. There is an obvious risk
inherent in making repeated visits to a police station to give notification of travel
plans that third parties will become aware of the reason for so doing.
44. In short, the changes made by the 2000 and 2003 Acts to the notification
requirements will have given some of those subject to those requirements very
good reason for wishing to have the requirements lifted, for they are capable of
causing significant interference with article 8 rights.
45. I turn to consider how important notification requirements are in furthering
the aims of preventing crime and protecting potential victims of crime. It is
obvious that it is necessary for the authorities that are responsible for the
management and supervision of those convicted of sexual offences to be aware of
the whereabouts of those who are subject to active management or supervision.
The nature and extent of the management and supervision of such offenders will
vary and will depend, in part, upon an assessment of the degree of risk of reoffending that they pose. I do not propose to attempt to set out all the complex
statutory provisions in relation to sentencing that are relevant, but will summarise
the effect of some of them. An offender who has received a fixed term sentence
will be released on licence after serving the requisite custodial period. The licence
will remain in effect for the length of the sentence. An offender who has been
given a life sentence, or a sentence of imprisonment for public protection (“IPP”)
will be released on licence after serving his minimum term if the Parole Board is
satisfied that it is no longer necessary for the protection of the public that he be
confined. An offender who has been given a life sentence will remain on licence
for the rest of his life. An IPP prisoner can apply to the Parole Board which will
order the licence to cease to have effect if satisfied that it is no longer necessary for
the protection of the public that the licence remain in force. While the licence
remains in force, the conditions of the licence will make provision for the
supervision of the offender by the appropriate authority. Thus where the Parole
Board orders a licence to cease to have effect it is presumably satisfied that such
supervision is no longer necessary for the protection of the public.
46. Section 104 of the 2003 Act grants power to a magistrates’ court to make a
sexual offences prevention order (“SOPO”) in relation to a qualifying offender
who has acted in such a way as to give reasonable cause to believe that it is
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necessary for such an order to be made. Those subject to notification requirements
are qualifying offenders.
47. Section 114 of the 2003 Act grants power to a magistrates’ court to impose
a foreign travel order in respect of a qualifying offender where his behaviour
makes it necessary to make such an order for the purpose of protecting children
generally or any child from serious sexual harm. Such an order prevents the
offender from travelling to the countries specified, which may be all countries,
outside the United Kingdom.
48. Section 325 of the Criminal Justice Act 2003 requires the responsible
authority for each area to establish arrangements for the purpose of assessing and
managing the risks posed in that area by relevant sexual and violent offenders. The
responsible authority means the chief officer of police, the probation board or
provider of probation services and the Minister of the Crown exercising functions
in relation to prisons, acting jointly. Relevant sexual offenders include those who
are subject to notification requirements.
49. Section 327A of the same Act requires the responsible authority for each
area, in the course of discharging its functions under section 325, to consider
whether to disclose information in its possession about the relevant previous
convictions of any child sex offender managed by it and goes on to make detailed
provision for circumstances in which there is a presumption that this should be
done.
50. The responsible authority has made Multi-Agency Public Protection
Arrangements (“MAPPA”) pursuant to the duty imposed on it by section 325 and
makes an annual report in relation to the operation of these. Counsel provided the
court with a little information about the manner in which risk is managed under
MAPPA and the court has since obtained a press notice issued on the occasion of
the publication of MAPPA’s 8th Report for 2009. This states that there are three
levels of management of offenders. At Level 1 offenders are “subject to the usual
management arrangements applied by whichever agency is supervising them”. At
Level 2 risk management involves the active involvement of several agencies via
regular multi-agency public protection meetings. At Level 3 cases require the
involvement of senior officers to authorise the use of special resources, such as
police surveillance or specialised accommodation and, sometimes, senior
management oversight.
51. The interrelationship between these measures and the notification
requirements is obvious. In the first place, the same criteria often apply to
determine those who are subject to the notification requirements as apply to
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determine those who are potentially subject to the various methods of management
and supervision. In the second place, notification requirements are important in
that they assist the responsible authorities to keep tabs on those whom they are
supervising and managing. This case turns, however, on one critical issue. If some
of those who are subject to lifetime notification requirements no longer pose any
significant risk of committing further sexual offences and it is possible for them to
demonstrate that this is the case, there is no point in subjecting them to supervision
or management or to the interference with their article 8 rights involved in visits to
their local police stations in order to provide information about their places of
residence and their travel plans. Indeed subjecting them to these requirements can
only impose an unnecessary and unproductive burden on the responsible
authorities. We were informed that there are now some 24,000 ex-offenders
subject to notification requirements and this number will inevitably grow.
52. Both the Divisional Court and the Court of Appeal proceeded on the
premise that there were some who were subject to notification requirements who
could “clearly demonstrate” that they presented no risk of re-offending or of whom
“it can confidently be said that there was no risk” that they would commit a sexual
offence. Mr Eadie came close to admitting that, if this premise were correct, it
would be hard to gainsay the proposition that there ought to be a right to a review
to enable notification requirements to be lifted in respect of those who no longer
posed a risk. He submitted, however, that the nature of sexual offences was such
that it was never possible to be sure that someone who had been guilty of a serious
sexual offence posed no significant risk of re-offending, and that this was borne
out by statistical evidence. Either all sexual offenders had a (possibly) latent
predisposition to commit further sexual offences or, if some did not, it was
impossible to identify who these were. Whether these submissions are well
founded is the question that lies at the heart of this appeal. I turn to consider the
evidence before the court.
Parliamentary material
53. Mr Eadie told the court that there had been a consultation exercise before
the introduction of the 1997 Bill that led to the 1997 Act, but that this provided no
assistance on the issue raised by this appeal. No material was placed before the
court to explain the changes that were made to the notification requirements by the
2000 Act or the 2003 Act. The court was referred to an extract from Hansard for 4
February 1997 (HC Debates), Cols 19, 23, 25 which reported the moving of two
amendments in Standing Committee D to the 1997 Bill. I have considered this in
the search for background information to explain why the Act contained no right to
a review of the notification requirements. The second proposed amendment would
have introduced a right to apply to the court to vary the duration of the notification
requirements if a chief officer of police certified that the applicant was no longer
likely to be a danger to others. Mr Timothy Kirkhope, resisting this amendment,
Page 19
raised the question of how the court would decide whether the need for a
notification requirement remained and suggested that such a provision would have
resource implications, would create bureaucracy and could weaken the Bill’s
protection. He said that the course adopted reflected the results of consultation.
This throws little light on the question of whether reliable risk assessment can be
carried out in the case of sex offenders.
54. Mr Eadie relied primarily on statistical evidence to support his submission
that a reliable review of the risk posed by those convicted of serious sexual
offences was not practicable. The most detailed statistics were provided in a paper
published in 2004 in Legal and Criminological Psychology by Ms Jenny Cann and
others, then of the Research, Development and Statistics Department of the Home
Office. This examined reconviction rates of sexual offenders released from prison
in England and Wales in 1979, over a 21-year period. Of 419 offenders 103, or
about 25%, committed a total of 405 sexual offences during this period. Of these
37 first re-offended over 5 years after release from prison and 19 at least 10 years
after release. The authors comment that these figures suggest that sexual offending
by sexual offenders released from custody has a longer “life-span” than general reoffending and one which often begins a number of years after discharge. The paper
recommends further research to look at the type of sexual offender most at risk of
receiving a first reconviction for a sexual offence 10 years following discharge.
55. This recommendation illustrates why this paper is inconclusive. Caution
must, of course, be taken in relying on reconviction statistics because these will
necessarily be lower than the actual incidence of re-offending. Nonetheless, these
statistics show that 75% of the sexual offenders who were monitored were not
reconvicted. No light is thrown on the question of whether it was possible to
identify by considering these whether there were some reliable indications of
offenders who did not pose a significant risk of re-offending.
56. No evidence has been placed before this court or the courts below that
demonstrate that it is not possible to identify from among those convicted of
serious offences, at any stage in their lives, some at least who pose no significant
risk of re-offending. It is equally true that no evidence has been adduced that
demonstrates that this is possible. This may well be because the necessary research
has not been carried out to enable firm conclusions to be drawn on this topic. If
uncertainty exists can this render proportionate the imposition of notification
requirements for life without review under the precautionary principle? I do not
believe that it can.
57. I have referred earlier to a number of situations in which the degree of risk
of re-offending has to be assessed in relation to sexual offenders. I think that it is
obvious that there must be some circumstances in which an appropriate tribunal
Page 20
could reliably conclude that the risk of an individual carrying out a further sexual
offence can be discounted to the extent that continuance of notification
requirements is unjustified. As the courts below have observed, it is open to the
legislature to impose an appropriately high threshold for review. Registration
systems for sexual offenders are not uncommon in other jurisdictions. Those acting
for the first respondent have drawn attention to registration requirements for sexual
offenders in France, Ireland, the seven Australian States, Canada, South Africa and
the United States. Almost all of these have provisions for review. This does not
suggest that the review exercise is not practicable.
58. For these reasons I have concluded that the Divisional Court and the Court
of Appeal were correct to find that the notification requirements constitute a
disproportionate interference with article 8 rights because they make no provision
for individual review of the requirements. I would dismiss this appeal and repeat
the declaration of incompatibility made by the Divisional Court.
LORD HOPE
59. I agree with the judgment of Lord Phillips. For the reasons he gives, with
which I agree, I too would hold that the indefinite notification requirements in
section 82(1) of the Sexual Offences Act 2003 are incompatible with article 8 of
the European Convention on Human Rights because they do not contain any
mechanism for the review of the justification for continuing the requirements in
individual cases. I wish also to associate myself with Lord Rodger’s comments,
with which I am in full agreement.
60. I would dismiss the appeals.
LORD RODGER
61. I agree that the appeal should be dismissed for the reasons given by Lord
Phillips, but subject to the following comments.
62. First, at para 33 of his judgment, Lord Phillips quotes the “unofficial
translation” of para 67 of the judgment of the European Court of Human Rights in
Bouchacourt v France (Application No 5335/06) 17 December 2009, unreported.
The beginning of that translation is inaccurate and misleading. What the court
actually says is “As the Government points out, [the prescribed period of
preservation of the data] is a maximum duration. Although significant in this case,
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since it is of thirty years, the Court observes that the deletion of the data is by right
once this period has elapsed….”
63. Secondly, in the case of the most serious offenders, of which the
respondents in these cases are examples, the notification period under section 82 of
the Sexual Offences Act 2003 (“the 2003 Act”) is “an indefinite period”. Although
the language was, no doubt, carefully chosen, it is perhaps a little surprising: “life”
would have been a shorter and clearer way of expressing what is actually involved,
since, whatever happens, there is no means of ever bringing the notification
requirements in question to an end. Indeed such a requirement can only be ended
in one situation: under section 93 and Schedule 4, where it relates to an abolished
homosexual offence. Schedule 4 provides a mechanism of an application to the
Secretary of State, with the possibility of an appeal to the High Court, with the
permission of the court.
64. Thirdly, I see no basis for saying that, in themselves, the notification
requirements, including those relating to travel, are a disproportionate interference
with the offenders’ article 8 rights to respect for their family life, having regard to
the important and legitimate aim of preventing sexual offending. That is
particularly the case where, as Lord Phillips explains, these requirements are not to
be seen in isolation, but as underpinning the scheme of Multi-Agency Public
Protection Arrangements which are designed to manage the risk of re-offending.
Of course, it is possible that the information which offenders provide to the police
will be wrongly conveyed to third parties in circumstances where disclosure is not
appropriate. The same can be said of the information which we have to supply,
say, to Her Majesty’s Revenue and Customs, or to the social security authorities.
The proportionality of the requirement to provide that information has to be judged
by reference to its proper use, not by reference to any possible misuse.
Organisations which gather sensitive information will, in practice, have adopted
administrative practices that are designed to minimise the risk of misuse. The Data
Protection Act 1998 provides a legal framework for handling personal data and
makes knowing or reckless disclosure of the data a criminal offence. That
framework applies to the gathering and retention of information supplied under the
2003 Act. In that situation the proportionality of the requirements made by the Act
should be judged on the basis that the information supplied will be handled
appropriately. If, as may well happen on occasions, the information is wrongly
disclosed or otherwise misused, then the assumption must be that appropriate steps
will be taken both to identify and punish those who misuse it and to prevent
similar misuse in the future.
65. Fourthly, the need for an offender to give the notification in person at a
police station does, of course, impose a burden on him and entails some additional
risk of his status becoming known. But it also helps to eliminate the familiar
excuses (such as letters allegedly going astray, or real or imaginary delays in the
Page 22
post) which can bedevil the operation of a system which depends, for its
effectiveness, on notification being given within short, fixed, time-limits – limits
which those affected may be understandably reluctant to comply with and astute to
avoid. Again, I see nothing disproportionate in the requirement.
66. Finally, the case of F shows that, where his offence has been of the most
serious kind, a child will be subject to an indefinite notification requirement. That
requirement will affect the whole of his adult life. Judges, as individuals, may have
views on whether children who offend in this way are likely to have a tendency to
repeat that behaviour when they are adults, or will tend to “grow out of it.” No
doubt, in years to come, advances in genetic research may clarify the position. In
the meantime it must be open to Parliament to take the view that, as a precaution
against the risk of them committing serious sexual offences in future, even such
young offenders should be required to comply with the notification régime
indefinitely. But that makes it all the more important for the legislation to include
some provision for reviewing the position and ending the requirement if the time
comes when that is appropriate.
