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

Indefinite sex-offender notification requirements imposed without any possibility of review are disproportionate under article 8 where an offender can demonstrate that he no longer presents a real risk of reoffending. The statutory aim is not advanced by retaining such a person on the register. A review may have a high threshold and limits on timing and frequency, but administrative difficulties do not justify a blanket denial. The absence of review is especially difficult to justify for a child offender, whose maturity and rehabilitation may change the assessment. Separate travel notifications do not amount to an exit visa or a prohibition on leaving the United Kingdom under EC Council Directive 2004/38.

The Secretary of State appealed a Divisional Court declaration that section 82(1) of the Sexual Offences Act 2003 was incompatible with article 8 because indefinite notification requirements lacked any review mechanism. JF, whose offences were committed at the age of 11, and Thompson, an adult sentenced to five years’ imprisonment, were subject to indefinite registration. JF cross-appealed the rejection of his argument that the travel-notification requirements infringed article 4 of EC Council Directive 2004/38. The central issues were whether the absence of review was disproportionate, whether the scheme could be challenged without proof of current risk, and whether the travel regime unlawfully restricted movement.

Both the appeal and the cross-appeal were dismissed. The declaration of incompatibility made by the Divisional Court therefore stood.

1. Article 8. The notification requirements engaged article 8, pursued the legitimate aims of preventing crime and protecting others, and were otherwise in accordance with the law. The proportionality question was whether requiring every serious sexual offender to remain subject to the requirements for life, without review, was no more than necessary to assist the police in preventing and detecting sexual offences.
2. The interference was not necessarily slight. Frequent or short-notice travel could impose substantial practical burdens, and there was a real possibility that registration or its consequences would be disclosed, with serious effects on an offender’s private life. Where it could confidently be shown that an offender presented no real risk of further sexual offending, retaining him on the register served no legitimate purpose. A review mechanism could be controlled by a high evidential threshold, restrictions on timing and frequency, and other safeguards. Resource implications and the possibility of error did not justify denying review in every case.
3. The court was not prevented from deciding the scheme-level issue merely because the claimants had not proved that they currently presented no risk. They had a real interest in determining whether the statutory scheme was compatible with article 8.
4. The absence of review was even more difficult to justify for a child offender. The child’s immaturity and capacity to change with maturity were of prime importance. The relevant perspective was the age when the offence was committed, and the need for continuing review did not disappear merely because the offender later became an adult.
5. The travel-notification provisions were not an exit visa or an equivalent formality. They did not prohibit departure, although criminal liability for leaving without due notice might inhibit travel in some cases. Article 4 of EC Council Directive 2004/38 principally concerned the documentation necessary and sufficient for departure. The court accepted, for completeness, the submission based on article 27.

• Court of Appeal (Civil Division): On 23 July 2009, dismissed the Secretary of State’s appeal and JF’s cross-appeal. [2009] EWCA Civ 792
• High Court of Justice, Divisional Court: On 19 December 2008, rejected the challenge under article 4 of EC Council Directive 2004/38, but declared section 82(1) of the Sexual Offences Act 2003 incompatible with article 8 to the extent that indefinite notification periods were not subject to review.