Forbes v Secretary of State for the Home Department Rev 1

In August 2004, Giles Forbes (the appellant) began proceedings for a declaration that the provisions of the Sex Offenders Act 1997 (the 1997 Act) which required him to comply with the notification requirements of the Act were incompatible with articles 8 and 14 of the European Convention on Human Rights (ECHR). By consent, it was ordered that the question whether section 81 and paragraph 14(a) of schedule 3 to the Sexual Offences Act 2003 (the 2003 Act) which contain the current notification provisions, were compatible with article 8 of the Convention should be tried as a preliminary issue. On 26^th July 2005, Stanley Burnton J held that they were not incompatible. The simple contention on behalf of the appellant is that this decision was wrong in law and that he was entitled to the declaration he was seeking: hence this appeal.

On 23^rd March 1999 the appellant was convicted at Isleworth Crown Court of fraudulent evasion of the prohibition on the importation of goods, contrary to section 170(2)(b) of the Customs and Excise Management Act 1979. The full circumstances are narrated in the speech of Lord Hutton in the House of Lords in R v Forbes [2002] 2 AC 512, dismissing the appellant’s appeal against conviction. In brief, however, he was returning to this country via Heathrow Airport from abroad when he was found to be in possession of two video tapes which contained indecent photographs of children under 16 years of age.

The critical feature of the decision of the House of Lords was that it was not a pre-requisite to the appellant’s conviction that he knew or believed that he was importing indecent images of children. The headnote to the Law Report accurately summarises the effect of the decision.

“It was sufficient for the prosecutor to prove that a defendant knew that the operation on which he was engaged involved prohibited goods and was designed to evade a prohibition on their importation, and it was not necessary also to prove that the defendant knew the nature of the goods in question; that application of that principle gave rise to no injustice since, for the purposes of section 170(2), a defendant was to be judged on the facts he believed them to be, so that a defence was available to him where the goods he was carrying, in fact and contrary to his belief, were not subject to prohibition”.

The appellant claimed in his evidence at trial that although he believed that the importation of these video films was prohibited in the United Kingdom, he did not know that they contained indecent photographs of children. The judge directed the jury that they should not convict him unless they were sure that his defence was untrue. As Lord Hope of Craighead put it, “plainly they did not believe his explanation, because they convicted him”. That said, we must examine the issue of incompatibility on the basis upon which the conviction was upheld. In any event, there may be others who during the course of fraudulent importation bring this kind of prohibited material into the United Kingdom without fully appreciating its true nature.

On 18^th May the appellant was sentenced to six months imprisonment. The result of his conviction and sentence was that he automatically became subject to the notification requirements created under Part 1 of the Sex Offenders Act 1997, for a period of seven years from the date of his conviction. The notification requirement expired in March 2006, but by then the 1997 Act had been repealed, and with effect from 1^st May 2004, replaced by equivalent provisions in the 2003 Act.

The importation of indecent or obscene articles is prohibited by section 42 of the Customs Consolidation Act 1876. The offence of which the appellant was convicted is found in section 170(2)(b) of the Customs and Excise Acts 1979 (the 1979 Act), which, so far as relevant provides:

“Without prejudice to any other provision of the Customs and Excise Act 1979, if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion

(b)

of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment;

…he shall be guilty of an offence under this section…”

The notification requirements imposed on those who commit sexual offences were created by the 1997 Act. The sexual offences to which these requirements applied were specified in Schedule 1. They include

“1(1)….

(d)

an offence under section 1 of the Protection of Children Act 1978 (indecent photographs of children);

(e)

an offence under section 170 of the Customs and Excise Management Act 1979 (penalty for fraudulent evasion of duty etc) in relation to goods prohibited to be imported under section 42 of the Customs Consolidation Act 1876 (prohibitions and restrictions); and

(f)

an offence under section 160 of the Criminal Justice Act 1988 (possession of indecent photographs of children)…

Paragraph (e) is subject to the express limitation that it does not apply where the prohibited goods “did not include indecent photographs of persons who were under the age of 16.” (sub para 2(c)).

Section 1 of the Protection of Children Act 1978 (the 1978 Act) is directed at the making, distribution, possession with a view to publication, and publication of indecent photographs with children. Section 160 of the Criminal Justice Act 1988 (the 1988 Act) is concerned with the possession of such material. For both offences a limited statutory defence is made available to the defendant who proves what for present purposes only can be summarised as innocent possession.

Neither of these offences directly addresses the specific problem of the importation of child pornography and similar material from abroad. This distinct and specific conduct is not covered by either the 1978 Act or the 1988 Act. While it is correct for Miss Malcolm to point out that, by contrast with the offences created by the 1978 Act and the 1988 Act, no statutory defence is available, the defence provided at common law is perfectly well understood, and easily identified. Perhaps it is best encapsulated in the speech of Lord Hope in Forbes, where he said at para 31:

“It was, of course, open to the appellant to say, if this was the fact, that he believed the videos to contain indecent photographs of adults and that he acted as he did because he believed, contrary to the fact, that they were prohibited. The line of defence which was approved in R v Taaffe [1984] AC 539 ensures the acquittal of people who genuinely believe that they are importing indecent photographs of adults which are not obscene when they are in fact photographs of children. But it is for the defendant to put forward that defence. The prosecution does not have to prove what the accused knew the goods were which he was seeking to import knowing that they were prohibited goods.”

The existence of the defence, and the reasons for the limitations on it, were expressed by Lord Hutton. He explained at para 57:

“In many cases a person who…brings into the United Kingdom an article, knowing that he is taking part in the fraudulent evasion of a prohibition against importation, will not know the precise nature of the article which he is carrying. In such a case the task for the prosecution in proving an offence would be virtually impossible if, in addition to having to prove that the article was a prohibited one and that the defendant knew that he was involved in the evasion of prohibition, it also had to prove that he knew the precise nature of the article. In my opinion the application of the principle stated in R v Hussain [1969] 2 QB 567 gives rise to no injustice in a case such as the present one, as it is open to the defendant to rely on the “Taaffe defence” if his case is that he believed that he was carrying an article which in reality and contrary to his belief was not prohibited”

We should therefore underline that the offence created by section 170(2)(b) of the 1979 Act is not an absolute offence. Furthermore, if it were necessary for the prosecution to prove that the defendant knew the precise nature of the goods he was importing, for the reasons given by Lord Hutton, the efficacy of section 170(2)(b) would be reduced virtually to extinction. That, in the context of the importation of indecent material relating to children, would be inimical to the protection of children, and the subsequent distribution of such material following its importation, would be a corrupting and corrosive influence, damaging to the public interest.

There is no doubt that notification requirements impose significant burdens on the individuals who are subject to them. They are intended to do so. The precise details are not significant, but the requirements include an obligation on an offender released from prison to provide to the police information about his date of birth, his name and his home address, to notify any change of address (or name) and any address at which he has stayed in the United Kingdom for an aggregate period of seven days in one year within three days. There are further notification requirements which may arise in the context of foreign travel. Unreasonable non-compliance with notification requirements is itself a criminal offence, punishable, at present, on summary conviction with a maximum of 6 months imprisonment, or a fine not exceeding the statutory maximum, or both, and by up to five years imprisonment on conviction on indictment.

Stanley Burnton J summarised the allegations in the particulars of claim:

“a)

During the time that the Claimant was in prison he was classified as a sexual offender, and was in the Vulnerable Prisoners’ Unit, among prisoners who had committed sexual crimes. When he came into contact with persons outside that Unit, he was abused because he was considered to be a sexual offender.

b)

The Claimant was automatically considered for home detention curfew before the end of the sentence. However, because he was subject to the notification requirements, he was subject to a Prison Service policy that denied curfew in the absence of “exceptional circumstances”. No such circumstances were found to exist in his case, as a result of which his release on home detention curfew was refused.

c)

After his release on 13 August 1999, the Claimant complied with the notification requirements. He suffered persistent distress and anxiety at the prospect of his status as a person subject to those requirements being discovered by members of the public. That was not an unreasonable or unjustified fear, having regard to the then national press campaign threatening the publication of details of sex offenders, which led to public order disturbances and violence towards people perceived to be such.

d)

In August 2001, the police sent correspondence to the Claimant referring to his status under the 1997 Act. It was sent to the wrong address. When he received that correspondence, it appeared to have been opened. He was offered the opportunity to move his address, but did not want to leave the community with which he was familiar, and declined. The possibility that his neighbours might be aware of his status caused him substantial anxiety.

e)

The Claimant is permanently anxious that his status as a person subject to the notification requirements, commonly described as “being on the sex offenders' register”, will become known. He is fearful of consulting a doctor about his anxiety because any reference to his status would be noted on his medical records and remain there indefinitely.

f)

In 2003, police officers attended upon him unannounced and asked him to visit them. They have also corresponded with him. The Claimant has been informed that such police contact is in accordance with the monitoring role they undertake in relation to all persons who are subject to the notification requirements. The Claimant finds these police activities intrusive and uncomfortable, and they cause him further distress and anxiety.”

Correspondence subsequent to the hearing before Stanley Burton J suggests that further potential problems may arise from information which may be retained after the end of the relevant notification period. In short, the impact of the notification requirements may continue after the expiry of the notification period.

These requirements undoubtedly involve an interference by a public authority with the right of the individual to respect for his or her private and family life. Article 8 of the ECHR 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 wellbeing 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.”

The question, therefore, is whether the particular form and extent of interference created by the statutory notification requirements fall within the ambit of the permitted exceptions.

The notification requirements were examined by the European Court of Human Rights in Adamson v United Kingdom (1999) 28 EHRR CD 209. The court considered whether they constituted an infringement of the applicant’s rights under article 8. It concluded that they did not. In the context of article 8, the court explained:

“Since the measures in question are set out in clear terms under the Act, it cannot be doubted that they are “in accordance with the law”. Furthermore the court considers that the measures pursue legitimate aims, namely the prevention of crime and the protection of the rights and freedoms of others. It remains to be decided whether they are “necessary in a democratic society”, that is, proportionate to the aims pursued.”

After examining the effect of the notification requirements, the court balanced the burdens imposed on the applicant against the importance of the aims pursued by the Act.

“ The court has previously referred to the gravity of the harm which may be caused to the victims of sexual offences…. and has held that States are under a duty under the Convention to take certain measures to protect individuals from such grave forms of interference. Against this background, the court does not consider that the requirement to provide information to the police can be said to be disproportionate to the aims pursued”

The submission, carefully and succinctly advanced on behalf of the appellant by Miss Malcolm, is that the notification requirements imposed on the appellant after conviction for an offence in which the prosecution was not required to prove that he knew or believed that he was importing indecent material involving children, were too broad and disproportionate, and fell outside the exceptions specified in article 8(2). The argument is confined to a narrow point. It does not involve criticism of the notification provisions which follow conviction of any of the other sexual offences specified in the statutory scheme. However, as the objective of these legislative provisions is the prevention of sexual offences, and the detection of those responsible for them, it is submitted that they can have no application unless it is established that the offender has committed what is in fact a sexual offence. A defendant who does not know or believe that he is importing child pornography cannot be said to have done so. The automatic nature of the notification requirements, without any discretion in the trial judge to disapply them, constitutes an unacceptable infringement of the right to respect for private life.

Our attention was drawn to the decision of the High Court of Justice in Northern Ireland in an application by Kevin Gallagher for Judicial Review [2003] NIQB 26, where Kerr J rejected a submission that the automatic imposition of the notification requirements of the 1997 Act infringed the applicant’s rights under article 8. He observed:

“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… 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.”

We respectfully adopt this analysis of the principles which underpin and justify the notification requirements. Their objective is to provide children, wherever in the world they may live, with such protection as the law in this country can offer them against exploitation for sexual purposes. In any civilised country it is elementary. Article 19 of the United Nations Convention on the Rights of a Child, to which the United Kingdom is a party, provides, in unequivocal terms, that “all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse ….” should be taken.

Parliament decided that the statutory scheme for notification should encompass, among other forms of sexual offences, the importation into this country of indecent material involving children in contravention of section 170(2)(b) of the 1979 Act. This decision must be afforded what can be compendiously summarised as a wide margin of discretion. (see R (ProfileAlliance) v BBC [2004] 1 AC 185, and the well known speech of Lord Hoffman, and A v Secretary of State for the Home Department [2005] 2 WLR 87).

It is entirely appropriate for notification requirements to be imposed on those who have been convicted of offences which are directly connected with such exploitation. Plainly that applies to those who deliberately import child pornography. In our judgment, however, it also applies to those who decide quite deliberately to import prohibited goods into this country, careless or heedless of the risk that the goods so imported contain or include such material. As Mr Kovats put it, in his equally concise and thoughtful argument, the individual who chooses to break the law against the importation of prohibited goods is, and should be, responsible for the importation of the goods he has actually imported. We agree. Our conclusion is reinforced by the evidential difficulties which normally face those seeking to establish that a defendant knew the precise nature of the prohibited goods he was importing. The consequent, automatic, notification requirements contribute to the protection of children everywhere, as well as the detection of offenders minded to exploit them, or to involve themselves in the exploitation of children by others.

In our judgment the extent of the interference with the rights of an individual responsible for a prohibited importation of indecent material involving children who becomes subject to the statutory notification requirements is not disproportionate. Accordingly, paragraph 14(a) of schedule 3 to the 2003 Act is not incompatible with the rights provided by article 8 of the ECHR.

We endorse the judgment and the reasoning of Stanley Burnton J. The appeal will be dismissed.