JF & Anor,R (on the application of) v Secretary of State for the Home Department

Section 82 of the Sexual Offences Act 2003 (“the 2003 Act”) provides that an offender who is sentenced to detention or imprisonment for a term of 30 months or longer for a sexual offence listed in Schedule 3 is subject to the notification requirements of Part 2 for an indefinite period. The 2003 Act contains no provision whereby an offender may seek a review of the notification requirements at any time.

The two claimants who are respondents to this appeal were sentenced to periods of 30 months’ detention (in the case of JF) and 5 years imprisonment (in the case of Thompson). The result is that they are subject to the notification requirements for an indefinite period and will remain on what is commonly known as the Sex Offenders Register for the rest of their lives. JF was only 11 years of age at the time that he committed the relevant offences. Thompson has at all material times been an adult.

It is submitted on behalf of both claimants that to impose notification requirements for an indefinite period without the possibility of review is a disproportionate interference with their rights under article 8 of the European Convention on Human Rights (“The Convention”) and that the court should grant a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998.

Mr Southey, who appears on his behalf of JF, also submits that the restriction on travel included in the notification requirements is unlawful in that it interferes with rights protected by article 4 of the EC Council Directive 2004/38 (“the 2004 Directive”).

On 19 December 2008, the Divisional Court (Latham LJ, Underhill and Flaux JJ) rejected Mr Southey’s submissions on the Directive. But they held that the absence of a review mechanism was a disproportionate interference with the article 8 rights of both JF and Thompson and they granted a declaration that section 82(1) of the 2003 Act is incompatible with article 8 “to the extent that indefinite notification periods are not subject to any review mechanism whereby the proportionality of the notification requirements can be evaluated”.

The Secretary of State appeals against the declaration of incompatibility with the permission of the Divisional Court. JF cross-appeals against the decision on the 2004 Directive issue with the permission of Elias LJ.

On 26 August 2005, JF was convicted of two offences of rape of a child under the age of 13 and three offences of other sexual activity with a child under the age of 13. He was sentenced on 17 October 2005 to concurrent sentences of 30 months’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 on each count. His appeal against sentence was dismissed on 2 February 2006.

Thompson was sentenced to 5 years’ imprisonment in 1996, inter alia, for two counts of indecent assault on his daughter. He was released on licence on 10 April 2000 and the licence has expired. He is now 51 years of age. He says that he has suffered a series of heart attacks and is now in poor health.

Statutory notification requirements for sex offenders were first introduced by section 1(3) of the Sexual 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.

The Criminal Justice and Courts Services Act 2000 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 must include the identity of the carrier, all points of arrival in destination countries, accommodation arrangements, return date and point of arrival if known.

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 we 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.

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.

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.

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 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.

Section 87(1) provides that a person gives a notification “(a) by 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.

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(1)…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.

Pursuant to section 86, the Secretary of State made the Sexual Offences Act 2003 (Travel Notification Requirements) Regulations 2004. The following regulations are material:

“5 Notification to be given before leaving the United Kingdom

(1)

A relevant offender who intends to leave the United Kingdom for a period of three days or longer must give a notification under section 86(2) in accordance with these Regulations.

(2)

Where a relevant offender to whom these Regulations apply knows the information required to be disclosed by section 86(2)(a) and (b) more than seven days before the date of his intended departure, he shall give a notification which sets out that information and as much of the information required by regulation 6 as he holds—

(a)

not less than seven days before that date (the seven day notification requirement); or

(b)

as soon as reasonably practicable but not less than 24 hours before that date, if and only if the relevant offender has a reasonable excuse for not complying with the seven day notification requirement.

(3)

Where the relevant offender does not know the information required to be disclosed by section 86(2)(a) and (b) more than seven days before the date of his intended departure, he shall give not less than 24 hours before that date, a notification which sets out that information and as much of the information required by regulation 6 as he holds.

(4)

6.

Information to be disclosed in a notification under section 86(2)

 In addition to the information required by section 86(2)(a) and (b) , a relevant offender to whom these Regulations apply must disclose, where he holds such information - 

(a)

where he intends to travel to more than one country outside the United Kingdom, his intended point of arrival in each such additional country,

(b) the identity of any carrier or carriers he intends to use for the purposes of his departure from and return to the United Kingdom, and of travelling to any other point of arrival,

(c) details of his accommodation arrangements for his first night outside the United Kingdom,

(d) in a case in which he intends to return to the United Kingdom on a particular date, that date, and

(e) in a case in which he intends to return to the United Kingdom at a particular point of arrival, that point of arrival.

7.

Change to information disclosed in a notification under section 86(2)

      - (1) Where - 

(a)

a relevant offender has given a notification under section 86(2), and

(b) at any time prior to his intended departure from the United Kingdom, the information disclosed in that notification becomes inaccurate or incomplete as a statement of all the information mentioned in section 86(2)(a) and (b) and regulation 6 which he currently holds,

he must give a further notification under section 86(2) .

(2) A further notification under paragraph (1) above must be given not less than 24 hours before the relevant offender's intended departure from the United Kingdom.

8.Notification to be given on return to the United Kingdom

      - (1) This regulation applies to a relevant offender who - 

(a)

is required to give a notification under section 86(2) ,

(b) has left the United Kingdom, and

(c) subsequently returns to the United Kingdom.

(2)

Except as provided by paragraph (3) below, every relevant offender to whom this regulation applies must give a notification under section 86(3) within three days of his return to the United Kingdom.

(3) A relevant offender to whom this regulation applies need not give a notification under section 86(3) in any case in which he gave a relevant notification under 86(2) which - 

(a)

disclosed a date under the provisions of regulation 6(d) above, and

(b) disclosed a point of arrival under the provisions of regulation 6(e) above,

provided his return to the United Kingdom was on that date and at that point of arrival.

9.Information to be disclosed in a notification under section 86(3)

A notification under section 86(3) must disclose the date of the relevant offender's return to the United Kingdom and his point of arrival in the United Kingdom.

10. Giving a notification
 (1) Subject to paragraph (2) below, for the purpose of giving a notification under section 86(2) or 86(3), a relevant offender must attend at a police station - 

(a)

which is in his local police area within the meaning of section 88(3), and

(b) at which, pursuant to the provisions of section 87, notifications under section 83, 84 or 85 may be made.

(2)

For the purpose of giving a notification under section 86(2) as required by regulation 5(3) or 7 above, a relevant offender must attend at a police station prescribed under section 87, but such a police station need not be in his local police area.

(3) A notification under section 86(2) or 86(3) must be given to a police officer, or to a person authorised by the officer in charge of the station under section 87(1)(b) for the purpose of receiving a notification under that section.

(4) A relevant offender giving a notification under section 86(2) or 86(3) must inform the person to whom he gives the notice of - 

(a)

his name and other names he is using,

(b) his home address, and

(c) his date of birth,

as currently notified under Part 2 of the Act.

(5) A relevant offender giving a further notification under section 86(2) as required by regulation 7 above must inform the person to whom he gives the notification of the police station at which he first gave a notification in respect of the journey in question under section 86(2).”

It is common ground that the provisions of the 2003 Act which prescribe and regulate the notification requirements engage article 8 of the Convention. It is accepted by the Secretary of State that the notification requirements interfere with an offender’s article 8 rights. It is also common ground that the interference is “in accordance with the law” and that it pursues a legitimate aim, namely the prevention of crime and the protection of the rights and freedom of others. The issue is whether the measures are proportionate to that legitimate aim.

It is necessary to examine a number of authorities since Mr Johnson submits that they resolve the article 8 issue in favour of the Secretary of State. Mr Southey submits that these authorities can be distinguished from the present case. The Divisional Court accepted the submission of Mr Southey that none of the previous authorities was concerned with a child offender and distinguished them from JF’s case on that basis. It is not clear on what basis they distinguished them from Thompson’s case.

Adamson v United Kingdom (1999) 28 EHRR CD 209 is an admissibility decision of the ECtHR on the notification requirements contained in the 1997 Act. The applicant (an adult) had committed a single offence of indecent assault and was subject to indefinite notification requirements under the 1997 Act. He complained that this amounted to a breach of his article 8 rights. His principal complaint was that the notification requirements were imposed automatically as a matter of law. The court did not consider the requirements to be “severe” and rejected the complaint as manifestly unfounded saying:

“In this connection the Court refers to its above finding that there is no evidence before it to suggest that the applicant is at particular risk of public humiliation or attack as a result of his obligations under the Act. Thus, it will examine the proportionality of the impugned measures on the basis that the interference with private life in issue in the present case extends only to the requirement to register with the police.

The Court notes that the Act requires the applicant, upon being released from prison, to inform the police of inter alia his name, any other names he uses, his date of birth and his home address, and, during an indeterminate period, to notify them of any subsequent changes of name or home address within 14 days of any change.

It is necessary to weigh against this 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 (see the Stubbings and Others v. the UnitedKingdom judgment of 22 October 1996, Reports 1996-IV, p. 1505, § 64) 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 (ibid., §§ 62 and 64).

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.”

It will be noted that the court did not explicitly consider the impact of the lack of a mechanism for review since that was not the subject of the complaint. The principal differences between the notification requirements in the 1997 Act and those in the 2003 Act are that the former included (i) no annual reporting requirement (ii) no requirement to notify foreign travel (iii) no provisions in relation to the taking of fingerprints or photographs and (iv) provision for a “qualifying period” for residing or staying at an address which has not previously been notified (and which is required to be notified) of 14 days (rather than 7) or two or more periods in any period of 12 months, which (taken together) amount to 14 days (rather than 7).

Massey v United Kingdom (Appln 14399/02) is another admissibility decision of the ECtHR on the notification requirements of the 1997 Act. This decision was not cited to the Divisional Court. The applicant was convicted of a number of counts of indecent assault and was sentenced to a total of 6 years’ imprisonment. He was subject to the indefinite notification requirements of the 1997 Act. One of his complaints in relation to these requirements is recorded by the court at page 9 as being “that there is no assessment or review of the necessity of registration in his particular case.” The court said at page 12:

“(iii)

The applicant complains that the registration requirements, to which he is subject according to the Sex Offenders Act 1997, interfere with his right to respect for private and family life. In Adamson v. the United Kingdom ((dec.), no. 42293/98, unreported), the Court considered that the requirement to provide information to the police under the Sex Offenders Act 1997 did constitute an interference with the applicant’s private life but that they were “in accordance with the law” and pursued legitimate aims, namely, the prevention of crime and the protection of the rights and freedoms of others. The Court found that the requirements placed upon the applicant were proportionate to the aims pursued by the legislation in view of the gravity of harm which may be caused to victims of sexual offences and the earlier statement of the Court that States have a duty under the Convention to take certain measures to protect individuals from such grave forms of interference (Stubbings and Others v. United Kingdom, judgment of 22 October 1996, Reports 1996-IV, p. 1505, §§ 62 and 64). The Court concludes that the same assessment applies on the facts of the present case.”

Mr Johnson submits that this is a clear decision by the ECtHR to the effect that indefinite notification requirements without a right of review is not in principle a disproportionate interference with a person’s article 8 rights and that this should determine the present appeals. We do not agree. First, as we shall explain, the requirements imposed by the 2003 Act interfere with a person’s article 8 rights to a significantly greater extent than those imposed by the 1997 Act. That is a material factor to be weighed in the balance when the proportionality assessment is conducted. Secondly, neither in Massey nor in Adamson did the court consider whether the complete absence of a right of review during the indefinite period of itself rendered the notification requirements disproportionate. The complaint that the court had to consider in each case was that the automatic imposition of notification requirements for an indefinite period without an assessment or review at the time of sentence was disproportionate.

Re Kevin Gallagher [2003] NIQB 26 is a decision of the High Court of Northern Ireland (Kerr J). The applicant had been convicted of three counts of indecent assault and was given a sentence of 30 months’ imprisonment. He was subject to the indefinite notification requirements of the 1997 Act with no possibility of a review. He contended that this was disproportionate and a breach of his article 8 rights. He sought to distinguish Adamson on the basis that the notification requirements now in force were more onerous than those considered by the court in Adamson. Kerr J dismissed the application for judicial review.

He accepted at [19] that the range of reporting requirements had been significantly extended by the amendments to the 1997 Act and the 2001 Regulations and that these gave rise to considerable inconvenience for the applicant. But the proportionality of the measures was not to be judged by their impact on a particular individual. At [22], he said that the absence of a right of review would not render the provisions automatically disproportionate, although it was relevant to that issue. He continued:

“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.”

It is true that this is a decision on notification requirements imposed under the 1997 Act as amended and the regulations made thereunder. But it is clear from his reasoning that Kerr J would have reached the same conclusion if the notification requirements had been imposed under the 2003 Act. We accept that if his reasoning is correct, it provides strong support for the argument that, at least in relation to adults, the 2003 Act notification requirements regime is not disproportionate. As we shall see, Mr Southey submits that different considerations arise in relation to offenders who are children at the relevant date.

In Forbes v Secretary of State for the Home Department [2006] EWCA Civ 962, [2006] 1 WLR 3075, the claimant was sentenced to 6 months’ imprisonment. He was therefore subject to notification requirements for 7 years pursuant to the 2003 Act. He sought a declaration that, since the prosecution had not been required to prove that he knew or believed that the obscene material that he was importing involved children, the notification requirements to which he was subject as a result of his conviction and sentence were a disproportionate interference with his article 8 rights. It was submitted that the objective of the notification requirements (the prevention and detection of sexual offences) could have no application unless it was established that the offender had committed what was in fact a sexual offence. The declaration was refused. Sir Igor Judge P gave the judgment of the court. He referred to Adamson and to [23] and [25] of Kerr J’s judgment in Gallagher. At [17], he said:

“We respectfully adopt this [Kerr J’s] 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.”

Mr Johnson submits that Forbes approved Gallagher and is therefore authority binding on this court that the imposition of notification requirements without the possibility of review at any time is not a disproportionate interference with an offender’s article 8 rights. We disagree. Forbes was not a case about indefinite notification requirements, still less about whether indefinite requirements without the possibility of review are disproportionate. It is significant that the two paragraphs in Kerr J’s judgment that were cited in Forbes were his answers to the complaint that notification requirements were disproportionate because they were imposed automatically at the outset on all offenders who were sentenced to a specified term of imprisonment or detention without regard to their individual circumstances. Kerr J rejected that complaint and it was that part of his reasoning which was approved and applied by this court in Forbes to justify the application of notification requirements even in a case which, it was argued, was not concerned with a sexual offence. What Kerr J had to say about the lack of a right of review in cases of indefinite notification requirements was of no relevance to the issues that arose in Forbes.

The only case to which our attention has been drawn in which the question of whether notification requirements are compatible with the article 8 rights of a child is the Scottish decision (OuterHouse) of Lord Turnbull in A v Scottish Ministers [2007] CSOH 189. The petitioner was 14 years of age when he was convicted in 1993 of two charges of assault with intent to rape (as well as other charges) and was sentenced to 4 years’ detention. When the 1997 Act was enacted, he became subject to the indefinite notification requirements and this continued to be the case under the 2003 Act. In 2007, he sought declarator that sections 81 and 82 of the 2003 Act were incompatible with article 8. Lord Turnbull rejected the claim and in a detailed and careful judgment concluded that section 82 was proportionate to the legitimate aim that was sought to be achieved and was not, therefore, incompatible with article 8. He said:

“[49] In my opinion it is incorrect to describe the present scheme as one which applies by general application of law and in a blanket fashion. There is sufficient discrimination within the scheme, both in respect of the criminals to whom it applies and in the way in which the application of the requirements are linked to the severity of the crime committed, to render this criticism unwarranted. Nor is it difficult for the petitioner to comply with the legislative requirements. Other than as a consequence of changes to his circumstances which he chooses to bring about his responsibility is discharged annually.

…I agree with the respondents that it is not for me to adjudicate upon whether a different or better scheme might have been implemented. The question is whether the measures complained of fall within the umbrella of proportionality. If they do it is for Parliament to decide which of a range of measures to implement.

[50] In my assessment I require to bear in mind the obligation on the state to take positive measures to provide protection for the public from the serious harm of sexual crime. I require to examine the effect of the particular provisions upon the present petitioner. I then require to assess the balance struck between the respective interests in light of the guidance given by the cases referred to above…

[51] …the question of proportionality falls to be assessed in light of the particular pressing social need being addressed by the restriction in question and in light of the nature of the particular interference with the right in question. The weight to be given to the interference requires to be weighed against the importance of the aim being pursued (Adamson). Thus the stronger the legitimate aim being pursued the greater may be the proportional interference with the rights of the individual concerned. …

[52] 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 ….

[53] This analysis is also consistent with the ways in which other Courts have considered the question of the proportionality of this legislation...

[58] …in arriving at my own decision, I have not proceeded upon the view that the outcome should be determined by any of these cases. I have sought to recognise the intensity of review which is available when the question of the proportionality of a breach of a convention right is under challenge. I have proceeded upon the view that the onus lies on the respondents to show that the legislative provisions are compatible with the Convention and that this burden cannot be discharged unless they show that the means adopted were no greater than necessary to achieve the aims pursued. As Lord Hope pointed out in Shayler at paragraphs 75 to 83 this exercise involves attention being directed to the relative weight which is to be accorded to different interests and considerations, an examination of the alternatives available and an assessment of the choice made by the legislature. I have endeavoured to undertake this as explained above. As Lord Bingham of Cornhill put it at paragraph 26 of his speech in Shayler:

“The acid test is whether in all the circumstances, the interference with the individual's Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve.”

Taking account of all of the circumstances argued before me I am satisfied that sections 81 and 82 of the Sexual Offences Act 2003 in so far as they apply to the petitioner are compatible with Article 8 of the Convention.”

This decision is, of course, not binding on us. We confess to having difficulty in seeing how [52] is consistent with the remaining part of Lord Turnbull’s reasoning which is directed to the question whether the scheme as a whole is disproportionate. Once it is acknowledged that there might be cases (for example, the elderly man who has been in no trouble for many years) where indefinite notification requirements without the possibility of review would be disproportionate, it is difficult see how a scheme which does not permit a review in any circumstances can be proportionate. We should add that, although the petitioner in A was a child, it seems that no argument was addressed to the court that this was relevant to the proportionality issue.

Our attention was also drawn to the decision in H v The Queen [2007] EWCA Crim 2622 where the appellant had, at the age of 16, committed an offence of sexual assault and was sentenced to 30 months’ detention and an extended licence of 30 months. He was subject to the indefinite notification requirements under the 2003 Act. On his appeal against sentence, he contended that the imposition of a lifelong notification period on all those under the age of 18 sentenced to a custodial term of 30 months or more was disproportionate and contrary to article 8 of the Convention. The Court of Appeal (Leveson LJ, Stanley Burnton and Pitchford JJ) said at [20] that the facts of the case were such that indefinite notification was not disproportionate: there was a high risk of the appellant re-offending. Accordingly, they held at [21] that what were described as “the issues of principle” did not arise on the facts of the case. We derive no assistance from H.

Mr Johnson submits that, whatever view we may take of the proportionality of the notification requirements regime as a scheme, it would be wrong to grant a declaration of incompatibility to these two claimants because they have not produced evidence that their article 8 rights have been breached. He contends that the question of proportionality falls to be determined on the facts of the individual cases before the court rather than on the basis of reviewing the 2003 Act in the abstract: see Hakansson and another v Sweden (1990) 13 EHRR 1 at [46]. In the case of JF, the offences were committed less than 4 years ago. It is not asserted that either JF or Thompson is not currently a risk to the public.

We do not accept that this should be a bar to the grant of a declaration to the claimants. It is important to both claimants as well as to the Secretary of State and the public at large to know whether the scheme is incompatible with article 8 of the Convention on the grounds that there is no right to review notification requirements that are imposed for an indefinite period. If the scheme is incompatible, then section 82 will no doubt be amended. Whether in that event either claimant would be able at any time to seek a review would depend on the terms of the amendment. The claimants have a real interest in seeking to have this important issue decided. We do not consider that we are precluded by Hakansson from deciding it.

We start with two preliminary points. First, it is not in dispute that notification requirements for an indefinite period without any right of review will be disproportionate unless the interference with a person’s article 8 rights that they entail is no more than is necessary to achieve the legitimate objective of assisting the police in the prevention and detection of crime: see R v Shayler [2002] UKHL 11, [2002] 1 AC 247 per Lord Bingham at [26] and Lord Hope at [79]. In short, the question is whether, in order to achieve that objective, it is necessary that all sex offenders who are sentenced to imprisonment or detention for 30 months or longer should be subject to the notification requirements for the rest of their lives without the possibility of a review.

Secondly, for the reasons that we have given in the course of our analysis of the authorities, we do not consider that there is any authority binding on this court which decides the question whether the imposition of indefinite notification requirements without the possibility of review is of itself a disproportionate interference with an offender’s article 8 rights.

At [31] of his judgment, Latham LJ referred to the evidence of Jenny Cann, a senior research officer at the Ministry of Justice, which supports the view that some sex offenders present a risk of re-offending for many years even if they remain conviction-free for a long period following release from custody for a serious sexual offence. This material and that submitted on behalf of Thompson by Dr Craissati led Latham LJ to say at [32] that “it undoubtedly supports the general proposition that an automatic indefinite notification requirement is justified in the first instance”. It was also, he said, material which justified, generally, the continuation of those requirements during the lifetime of the offender. Latham LJ went on to say 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” (emphasis added).

Mr Johnson submits that, in the light of the evidence of Ms Cann and Dr Craissati, the Divisional Court should have concluded that the indefinite notification requirements without a review mechanism were proportionate.

He also submits that the interference with the claimants’ article 8 rights is very slight and amounts only to an inconvenience. So long as the offenders comply with the notification requirements, they are not prevented from doing anything. The information that is required to be provided is not highly personal. It is information of a type that any citizen may be required to provide to the State authorities or other organisations, such as banks, from time to time. The amount of information that is required to be provided is not onerous and can be provided orally in moments. It does not have to be provided frequently. It only has to be provided annually, in advance of travelling abroad and when details change (which is not likely to be frequent).

Mr Johnson makes the further point that the police are obliged to treat the information that is notified as confidential. It can only be disclosed to a third party when disclosure is compatible with article 8, the Data Protection Act 1998 and common law rules of confidence. As to the latter, he refers to R v Chief Constable of North Wales, ex p Thorpe [1999] QB 396. In this case, JF complains that the Rugby Football League has discovered that he is subject to the notification requirements and has temporarily precluded him from attending training or matches involving those under the age of 18. Mr Johnson submits that this disclosure and these consequences are not a necessary consequence of the notification requirements. It is a matter which would have to be separately justified by the police and which could be separately challenged by JF. In short, Mr Johnson submits that the proportionality of the notification requirements should not be judged by reference to the possibility of misuse of the information by the police, whether deliberate or inadvertent.

In our judgment, Mr Johnson underestimates the significance of the impact of the notification requirements on offenders. We accept that for those who do not travel abroad and who do not travel for periods in excess of 7 days at a time in the United Kingdom, the notification requirements may be little more than an inconvenience. But for those who frequently travel, sometimes at short notice, the position may be quite different. We give some examples of the problems in an appendix to this judgment.

Nor do we consider that the possible consequences of the disclosure that an offender is on the Register can be brushed aside as easily as Mr Johnson suggests. We accept that it is not a necessary consequence of an offender’s sex offender registration that the fact of registration will be disclosed to persons other than the police. But, to put it no higher, there is the real possibility of such disclosure with potentially serious adverse consequences for the offender. For example, it may be disclosed to an employer. Even if the fact of registration is not formally disclosed, it may well be revealed by the restrictions imposed on the offender’s right to travel, for example, where the person is called upon to explain the reason why he is unable to travel at short notice. It may also come about because the police, following a required notification, make enquiries which lead to the revelation that the person is on the register. An insight into the consequences for an offender who is subject to the notification requirements is given by Laura Janes, solicitor at the Howard League for Penal Reform. At para 9 of her witness statement, she says this:

“My client’s parents are of the view that my client’s self esteem and confidence is very low. Although it is clear that he is desperate to make a fresh start, it is also clear that being subject to notification requirements makes him feel that this is almost impossible. He has complained that he feels as though people are watching him and talking about him all the time. The knowledge that this will never be subject to change or review, regardless of the risk he may pose is extremely distressing for my client. In particular, in October of last year, my client’s consultant forensic clinical psychologist – who originally assessed him prior to sentence in July 2005 and who had continued to work with my client on release from custody – wrote to me confirming that my client was making significant progress in addressing the underlying issues behind his offending behaviour. However, regardless of the progress my client makes, at the moment there is no mechanism for this to be reflected in any change to the notification requirements.”

In our judgment, therefore, although for some offenders the notification requirements may be a modest interference with their article 8 rights, for others the interference will be more substantial.

Mr Johnson submits that the utility of the notification requirements as a tool for the prevention and detection of sexual offences would be compromised if there were to be a right of review. The police database would be incomplete. As Lord Turnbull put it at [47] in A, “An obvious consequence of [a] successful application for review would be that the data base of information currently available would become incomplete”. The same idea is expressed by Kerr J in Gallagher at [23].

We cannot accept this submission. 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. As we have seen, at [23] in Gallagher, Kerr J said that to be viable the scheme must contain general provisions of universal application. That may be true in relation to the automatic imposition of notification requirements at the outset as a result of the sentence. But we do not see how the inclusion of a right of review of indefinite notification requirements would render the whole scheme unviable. At [26], Kerr J said that the inconvenience to offenders 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”. But where there is no real risk of further offending, there is no benefit in keeping the police so informed. On the contrary, the lack of a system to review those who are no longer a risk may adversely affect the efficacy of the system as police forces become burdened with notifications from an ever-increasing number of offenders.

A further argument advanced by Mr Johnson is that it is likely that the vast majority of those who are subject to the indefinite notification regime would seek a review and that many would challenge any refusal. A review mechanism would, therefore, have significant resource implications. Mr Johnson relies on R (S and Marper) v Chief Constable of South Yorkshire Police [2004] UKHL 39, [2004] 1 WLR 2196 where Lord Steyn said at [39]:

“Counsel for the appellants submitted that the legislative aim could be achieved by less intrusive means. It became clear that this contention would require a case by case consideration of the circumstances of alleged offences of which the individual has been acquitted…

In my view this would not confer the benefits of a greatly extended database and would involve the police in interminable and invidious disputes (subject to judicial review of individual decisions) about offences of which the individual had been acquitted. In any event, Waller LJ pointed out (para 66, at 3242):

“… to introduce a concept of a Chief Constable having to consider whether a person is free of any taint of suspicion has great difficulties…”

40.

These observations were made in the context of the issue of discretion but are apposite to the question whether there are less intrusive but realistic means available to achieve the legislative purpose. In my view the answer is that there are not.”

Mr Johnson submits that Lord Steyn’s observations about the practical difficulties of administering a review mechanism are not inconsistent with the subsequent decision of the ECtHR that the retention of DNA samples in the case of S and Marper (both of whom had been acquitted) was in breach of their article 8 rights.

We accept that there may be cases where resource implications are relevant. It is not difficult to see the reason for Lord Steyn’s observations. But as he himself said on another occasion, in law context is everything. The task of considering the circumstances of alleged offences of which a person has been acquitted would, as Lord Steyn said, involve the police in interminable and invidious disputes. No similar problems would be generated by a sensible and proportionate mechanism for review of notification requirements. As Latham LJ said at [33]: “There will necessarily have to be a debate about what an offender should have to prove in order to enable him or her to be discharged from the notification requirements and when he should be entitled to make any necessary application”. The spectre of the floodgates can be set at rest by Parliament setting the threshold for review at a suitably high level both as regards the time when an application may first be made, the frequency with which applications may be made and what has to be proved if the notification requirements are to be varied or discharged.

For these reasons, we are not impressed by the appeal to resources. We should add that it is by no means uncommon for Parliament to give offenders or others the right to have a review of orders which impose restrictions or prohibitions on them. We give a few examples: Sexual Offences Prevention Orders (section 108 of the 2003 Act); Risk of Sexual Harm Orders (section 125 of the 2003 Act); Foreign Travel Orders (section 118 of the 2003 Act); Anti-Social Behaviour Orders (section 1(8) of the Crime and Disorder Act 1988); Football Banning Orders (section 14G of the Football Spectators Act 1989).

Finally, Mr Johnson submits that it would be difficult to operate a right of review. It would be difficult for the offender to show that he no longer presented a risk of sexual offending and difficult for the decision-maker to make an accurate assessment of risk: there would always be the possibility of mistakes. But as we have said, it would be a matter for Parliament to decide how high to set the bar. The fact that it might be difficult to prove in an individual case that the offender no longer presented a risk is not a good reason for saying that he or she should be denied the opportunity of doing so regardless of the circumstances of his or her particular case.

We conclude, therefore, in agreement with the Divisional Court that, as a matter of principle, an offender is entitled to have the question of whether the notification requirements continue to serve a legitimate purpose determined on a review. That is sufficient to dispose of the Secretary of State’s appeal. In deference to the arguments that we heard about the special position of children, we should go on to consider whether there are additional reasons for dismissing the Secretary of State’s appeal in the case of JF on account of his age at the relevant date.

Mr Johnson submits that (i) there is no justification for treating young offenders differently from adult offenders, since it is inevitable that young offenders will be adults before any realistic possibility of a review will arise; (ii) the policy underlying the regime is for the benefit of victims of sexual offending, many of whom are children and it is necessary to have regard to their interests; and (iii) in so far as different treatment is justified for young offenders, Parliament had regard to this by providing for the determinate notification periods to be halved in the case of offenders under the age of 18.

We note that the first of these submissions does not sit easily with the third submission. But we cannot accept it in any event. As Latham LJ said:

“19 The courts have consistently approached consideration of measures which are to be applied to children on the basis that the immaturity of a child offender must be taken into consideration as being of prime importance. This recognises the fact that a child well may change as he or she matures so that any problems or dangers which may have been apparent at the time of the commission of the offence may ultimately no longer be present. That principle was recently applied by the House of Lords in the context of a child offender convicted of murder. The House considered that the tariff set for the period to be served before release on licence necessarily had to be kept under review: R (Smith) v. the Secretary of State for the Home Department [2006] 1 AC 159 . Parliament must have had the same principle in mind in the present context when providing that the determinate notification periods under the Act should be halved in the case of offenders under the age of 18.

20 The analogy with sentences of detention during Her Majesty's pleasure is not exact, because even if the custody period requires review, the licence period is not subject to review. The offender remains subject to licence for the rest of his or her life. But the principle, namely that the measure imposed should reflect the fact that the offender is a child must, in my view apply by analogy to the notification requirements imposed on F. In the absence of authority, it is difficult to see how a lifelong requirement to register is proportionate. An offender who is on licence for life has his or her conditions periodically reviewed as a matter of course, and ultimately may well be on unconditional licence, in other words subject only to the risk of recall. He or she ultimately suffers little if any interference with Article 8 rights. If the question is whether the requirements, at least in the context of a child, are the minimum necessary to achieve the legislation legitimate objective, it seems to me that in the absence of an opportunity for review, the only answer must be no. Mr Kovats, however, on behalf of the Secretary of State submits that that answer is not open to us on the authorities. I turn therefore to those authorities.”

We agree with that passage. An argument similar to Mr Johnson’s first submission was advanced in R (Smith) v Secretary of State for the Home Department [2005] UKHL 51, [2006] 1 AC 159, namely that there was no inherent requirement of continuing review where the detainee was no longer a child or young person. At [12], Lord Bingham rejected this submission, saying:

“…The requirement to impose a sentence of HMP detention is based not on the age of the offender when sentenced but on the age of the offender when the murder was committed, and it reflects the humane principle that an offender deemed by statute to be not fully mature when committing his crime should not be punished as if he were. As he grows into maturity a more reliable judgment may be made, perhaps of what punishment he deserves and certainly of what period of detention will best promote his rehabilitation. It would in many cases subvert the object of this unique sentence if the duty of continuing review were held to terminate when the child or young person comes legally of age.”

We conclude, therefore, that the case for holding that the absence of a right of review of indefinite notification requirements renders section 82(1) of the 2003 Act incompatible with article 8 is even stronger in the case of young offenders than it is in the case of adult offenders.

Article 4 of the 2004 Directive, which bears the heading “right of exit”, provides:

“1.

Without prejudice to the provisions on travel documents applicable to national border controls, all Union citizens with a valid identity card or passport and their family members who are not nationals of a Member State who do hold a valid passport shall have the right to leave the territory of a Member State to travel to another Member State.

2.

No exit visa or equivalent formality may be imposed on the persons to whom paragraph 1 applies.

3.

Member States shall, acting in accordance with their laws, issue to their own nationals, and renew, an identity card or passport stating their nationality.

4.

The passport shall be valid at least for all Member States and for countries through which the holder must pass when travelling between Member States. Where the law of a Member State does not provide for identity cards to be issued, the period of validity of any passport on being issued or renewed shall be not less than five years.”

Article 4 must be read in the light of articles 1 and 2 of Council Directive 73/148/EEC of 21 May 1973 (“the 1973 Directive”). The purpose of the 2004 Directive was not to reduce the rights of EU citizens to travel. It must, therefore, be interpreted as being at least as broad as the 1973 Directive: see Metock v Minister for Justice, Equality and Law Reform [2008] CMLR 39 at [59] and [84]. Articles 1 and 2 of the 1973 Directive provided that:

“Article 1

1.

The member states shall, acting as provided in this Directive, abolish restrictions on the movement and residence of: (a) nationals of a member state who are established or who wish to establish themselves in another member state in order to pursue activities as self-employed persons, or who wish to provide services in that state; (b) nationals of member states wishing to go to another member state as recipients of services…

Article 2

1.

Member states shall grant the persons referred to in article 1 the right to leave their territory. Such right shall be exercised simply on production of a valid identity card or passport. Members of the family shall enjoy the same right as the national on whom they are dependent. ”

The 2004 Directive does permit restrictions to be applied on grounds of public policy, public security and public health. Article 27 provides:

“1.

Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence to Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. Theses grounds shall not be invoked to serve economic ends.

2.

Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justification that are isolated from the particulars of the case or that rely on consideration of general prevention shall not be accepted.”

Mr Southey submits as follows. Article 4(1) of the 2004 Directive is engaged, since the notification requirements will inevitably prevent some people from travelling who wish to travel at short notice ie to travel for more than 3 days at less than 24 hours notice. Modern business often requires people to travel at short notice and family and personal crises can require people to travel at short notice. Mr Southey relies on articles 1 and 2 of the 1973 Directive which show that the 2004 Directive should be interpreted as meaning that a person is required to do no more than show a passport before departure. The requirement to give notice of departure is an additional requirement which conflicts with the article 4(1) of the 2004 Directive interpreted in the light of the 1973 Directive.

Further, article 4(2) is also engaged because the primary reason why offenders are required to notify the police when they intend to travel is because it provides the police with an opportunity to take action if they believe that there is a risk of further offences, for example by obtaining a foreign travel order from the magistrates under section 114 of the 2003 Act. As a consequence, the registration scheme operates as a scheme that enables the authorities to approve or prevent travel and it is a formality equivalent to an exit visa.

Nor can article 27 of the 2004 Directive be invoked by the Secretary of State since the notification requirements do not satisfy the provisions of article 27(2). The restrictions on travel inherent in the notification requirements are based on an offender’s previous convictions alone and an interference with the right to travel on those grounds is not permitted by article 27(2).

We start with article 4(2). We agree with Latham LJ that the notification requirements are not a formality equivalent to an exit visa. An exit visa is a document which authorises a person to leave a country, so that he or she merely needs to show it on departure to establish the right to leave. The notification requirement is not an exit visa, nor is it equivalent to an exit visa. As Mr Johnson says, it is not in any sense a process whereby permission is sought and granted to leave the United Kingdom. It is simply a process of notification. Article 4(2) is therefore not engaged.

Do notification requirements amount to a prohibition on travel in breach of article 4(1) interpreted in the light of articles 1 and 2 of the 1973 Directive? In our view, the answer to this question is: no. The notification requirements do not prohibit travel. They are notification requirements, no more and no less. It is true that if a person leaves the country without giving due notice to the police, he may be prosecuted under section 91 of the 2003 Act. Mr Johnson points out that it is not an offence to fail to provide the requisite notification where there is a reasonable excuse: see section 91(1)(a). But that defence may be of little comfort to the person who is contemplating leaving the country without giving due notice, since it will be uncertain (to put it no higher) whether the reasonable excuse defence will succeed. For that reason, we would accept that the existence of possible criminal liability is likely to operate so as to inhibit some offenders from travelling without giving due notice.

But in our judgment it does not follow that there is a breach of article 4(1). The fact remains that the notification requirements do not prohibit a person from leaving the country. At most they may inhibit departure in the relatively few cases where it is not possible to give 24 hours’ notice. The purpose of article 4(1) is to make it clear that the only document that an EU national needs to be permitted to travel to another Member State is a valid passport. Support for this limited view of the scope of article 4(1) is to be found in the remaining parts of article 4. It is clear that the whole of the article is concerned with what documentation is necessary and sufficient for departure. The principal point of article 4 is that the only document that is required is a valid passport. Article 4(2) states that no other form of document permitting departure may be required. Article 4(3) and (4) makes provision about passports or identity cards.

For these reasons, we hold, in agreement with the Divisional Court, that notification requirements do not infringe the 2004 Directive. For completeness, we should say that we would accept the submissions of Mr Southey in relation to article 27.

We recognise that the issues raised by the Secretary of State’s appeal are important and touch matters which are rightly of great concern to the public. Nothing that we have said in this judgment should be interpreted as indicating that we are not sensitive to these concerns. Parliament’s objective in establishing the Sex Offenders Register, was to assist the police to detect and prevent sexual offending. This is an objective which all right-minded people would applaud without hesitation or qualification. But for the reasons that we have given, a scheme which obliges offenders who are sentenced to 30 months’ detention or more to remain on the Register for the rest of their lives without any possibility of review, even if they can clearly demonstrate that they are no longer a risk, does nothing to promote that laudable objective and, in our view, it is disproportionate for that reason. We would wish to emphasise that, in reaching this conclusion, we are not putting the interests of offenders ahead of those of victims.

As we have said, it will be for Parliament to decide what conditions to impose on the right of review. Having regard to the sensitivity of the subject-matter, Parliament might decide to set the bar very high and make it difficult to attempt a review and even more difficult to achieve a successful review. But that is for Parliament and not for the courts to determine.

For the reasons that we have given, we dismiss both the appeal and the cross-appeal.