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

An indefinite notification requirement under the Sexual Offences Act 2003 may be compatible with Article 8 in general, but the absence of any review mechanism is disproportionate where the offender committed the offences as a child. The same conclusion applies to an adult who can seek to establish that the requirement no longer serves a legitimate purpose. A notification requirement is not an exit visa because it does not require permission to leave the United Kingdom. The court may grant a declaration of incompatibility where the statutory scheme cannot be read compatibly without altering its language.

F, who committed the relevant sexual offences aged 11, was subject to indefinite notification requirements after receiving a 30-month sentence. Thompson, an adult sentenced to five years’ imprisonment, was likewise subject to indefinite notification requirements. Both challenged the absence of any statutory mechanism for reviewing or terminating those requirements under Article 8 of the European Convention on Human Rights. F also argued that the travel notification provisions infringed Article 4 of Council Directive 2004/38.

The claims required the court to determine whether the travel requirements were equivalent to an exit visa and whether indefinite notification without review was proportionate.

1. The court held that the travel notification requirements did not contravene Article 4 of Council Directive 2004/38. An exit visa presupposes that permission is required before departure. Notification did not require permission to leave the United Kingdom. A foreign travel order under section 114 of the Sexual Offences Act 2003 would be a different measure and could be justified under Article 27 of the Directive.

2. The notification scheme engaged Article 8, pursued the legitimate aims of preventing crime and protecting the rights and freedoms of others, and had to be proportionate. The court accepted that automatic indefinite notification could generally be justified by the continuing public interest in knowing the whereabouts and travel plans of serious sexual offenders.

3. In the case of a child offender, however, the absence of any opportunity for review made lifelong notification disproportionate. The law must recognise that children may change materially as they mature. The relevant authorities did not decide the particular issue concerning young offenders and therefore did not prevent that conclusion.

4. Thompson was also entitled to have the continuing justification for notification determined. Although it might be difficult to prove that the risk of reoffending had disappeared, Article 8 principles required an opportunity to seek such a determination. The absence of a review mechanism therefore rendered the scheme incompatible as applied to him.

5. The provisions could not be read down without unacceptable violence to the statutory language. The appropriate relief in both claims was a declaration of incompatibility.

First-instance judicial review claims. The judgment does not state any prior appellate decision in these proceedings.