Forbes v Secretary of State for the Home Department Rev 1

Statutory sex-offender notification requirements interfere with private life, but they are compatible with article 8 where they are prescribed by law and proportionate to the prevention of crime and protection of children. Parliament may adopt an automatic and generally applicable scheme without requiring individual judicial discretion.

That conclusion applies to a person convicted of deliberately importing prohibited goods which in fact include indecent images of children. The absence of proof that the person knew the goods’ precise nature does not make the consequent notification requirement disproportionate, particularly where the underlying offence is not absolute and permits a defence based on a genuine belief that the goods were not prohibited.

The appellant had been convicted of fraudulent evasion of a prohibition on importation after bringing into the United Kingdom video tapes containing indecent photographs of children. The prosecution had not needed to prove that he knew the precise nature of the goods. His criminal appeal was dismissed in R v Forbes [2002] 2 AC 512.

He later sought a declaration that the notification regime, originally imposed under the Sex Offenders Act 1997 and continued under the Sexual Offences Act 2003, was incompatible with articles 8 and 14 of the European Convention on Human Rights. By consent, the High Court tried as a preliminary issue the compatibility with article 8 of section 81 and paragraph 14(a) of Schedule 3 to the 2003 Act. Stanley Burnton J rejected the challenge on 26 July 2005. The appeal concerned whether automatic notification was disproportionate for this class of importation offence.

1. Appeal dismissed. The court upheld Stanley Burnton J’s conclusion that paragraph 14(a) of Schedule 3 to the Sexual Offences Act 2003 was not incompatible with article 8.

2. The notification obligations plainly interfered with private and family life. They were, however, set out by law and pursued the legitimate aims of preventing crime and protecting the rights of others. The decisive issue was proportionality. The court treated the protection of children from sexual exploitation, and the detection of those who might exploit them, as objectives of great importance.

3. The underlying importation offence did not require proof that the defendant knew the precise nature of the prohibited goods. It was nevertheless not an absolute offence. As explained in R v Forbes [2002] 2 AC 512, a defendant could rely on the Taaffe defence if he genuinely believed that the goods were not prohibited. The court held that a person who deliberately imports prohibited goods, while careless or heedless of the risk that they include child pornography, may properly be made subject to notification requirements. Requiring proof of precise knowledge would create serious evidential difficulties and undermine the protective purpose of section 170(2)(b).

4. The court approved the approach in the Gallagher judicial review. A viable notification scheme may use universally applicable rules, even though its burdens differ between individuals. Parliament’s decision to include this importation offence attracted a wide margin of discretion. The automatic character of the scheme, and the absence of a sentencing judge’s discretion to disapply it, did not render the interference disproportionate.

The court therefore endorsed the reasoning below and dismissed the appeal.

• Court of Appeal (Civil Division) Dismissed the appeal and upheld the finding that paragraph 14(a) of Schedule 3 to the Sexual Offences Act 2003 was compatible with article 8: [2006] EWCA Civ 962.
• High Court Stanley Burnton J, on 26 July 2005, held that the current notification provisions were not incompatible with article 8.