Forbes v Secretary of State for the Home Department

The automatic imposition of notification requirements on a person convicted of knowingly participating in the fraudulent evasion of a prohibition on importing obscene material is not disproportionate merely because the person did not know the material’s precise nature. Compatibility under section 4 of the Human Rights Act 1998 is assessed by reference to the statutory provision’s necessary consequences, not discretionary administrative decisions or delegated legislation that could lawfully have been made compatibly. The court must apply the structured proportionality inquiry: importance of the legislative objective, rational connection, and whether the impairment goes no further than necessary.

The claimant had been convicted under section 170(2)(b) of the Customs and Excise Management Act 1979 of knowingly participating in the fraudulent evasion of an import prohibition. The goods were in fact indecent photographs of children, although the prosecution had not proved that he knew their precise nature. By virtue of the statutory scheme, the conviction subjected him to sex-offender notification requirements.

He sought a declaration that paragraph 14(a) of Schedule 3 to the Sexual Offences Act 2003 was incompatible with Article 8 of the Convention. The preliminary issue was whether imposing notification requirements in such circumstances was necessary and proportionate to the prevention of crime and protection of children.

1. The preliminary issue was answered “No”. Paragraph 14(a) of Schedule 3 to the Sexual Offences Act 2003 was not incompatible with Article 8.
2. Under section 4 of the Human Rights Act 1998, compatibility depended on the necessary consequences of the statutory provision. The court therefore excluded the Prison Service’s treatment of the claimant and the possibility that his status might become public, since those matters resulted from administrative conduct rather than necessary consequences of the Act.
3. The proportionality assessment required consideration of whether the legislative objective was sufficiently important to justify limiting the right, whether the measure was rationally connected to that objective, and whether the impairment went no further than necessary. The objective of preventing the importation of obscene material depicting children, and thereby reducing sexual offending, was legitimate and important.
4. The court accepted that section 170(2)(b) could be committed without proof that the defendant knew the precise nature of the goods. That difficulty did not make notification disproportionate. A person convicted under the provision must have knowingly participated in evading an import prohibition and, if unaware of the goods’ precise nature, must at least have taken the risk of what was being imported.
5. The possession offence under section 160 of the Criminal Justice Act 1980 was directed to a different legislative objective. It did not provide a sufficient alternative because the smuggling offence could be committed by a person arranging or facilitating importation without possessing the goods. Making notification dependent on a trial judge’s discretion would also risk excluding many persons whose knowledge of the precise material could not be proved.
6. Given the grave harm caused by the creation, importation and showing of obscene material involving children, applying the notification requirements to the convicted person was not disproportionate. The claimant’s anonymity was also terminated because no sufficient justification for anonymity remained.

First-instance decision on a preliminary issue. The judgment records that the claimant’s earlier conviction had been upheld by the Court of Appeal and the House of Lords in [2001] UKHL 40, reported at [2002] 2 AC 512; that earlier litigation was not the appeal determined in this judgment.