R (F (A Child)) v Secretary of State for Justice

The Supreme Court held that the indefinite notification requirements imposed by section 82 of the Sexual Offences Act 2003, which oblige persons sentenced to 30 months' imprisonment or more for sexual offences to notify the police of specified personal and travel information for life, are incompatible with Article 8 of the European Convention on Human Rights insofar as the statute contains no mechanism for individual review.

The court applied the conventional proportionality inquiry: (i) the objective of preventing sexual offending and protecting others is important; (ii) the notification regime is rationally connected to that objective; but (iii) the absence of any means for an individual to obtain review meant that the interference with private life could not be shown to be no more than necessary. The court relied on Strasbourg jurisprudence (notably S and Marper) emphasising that the possibility of independent review of retention/notification is highly material to proportionality.

Although the statutory scheme and associated supervisory arrangements (such as MAPPA and licence supervision) are valuable for risk management, the court concluded there must be a possibility, subject to an appropriately high threshold, for those who can demonstrate they no longer present a significant risk to seek review and removal of notification obligations. The appeal was dismissed and the declaration of incompatibility made below was repeated.

Background and parties:

• The appeals arose from two judicial review claims by F (a child convicted at 11 and sentenced to concurrent terms of 30 months for sexual offences) and Mr Thompson (convicted in 1996 and sentenced to concurrent terms including five years for indecent assault), each of whom became subject to automatic notification requirements under the Sexual Offences Act 2003 because of their sentences.
• Each claimant sought a declaration that the lifetime notification requirements were incompatible with Article 8 ECHR. They could not bring claims under section 7(1) of the Human Rights Act 1998 because section 6(2) precluded such claims; accordingly the remedy sought was a declaration of incompatibility from the domestic courts.

Procedural history:

• The Divisional Court granted declarations of incompatibility on 19 December 2008. The Court of Appeal upheld that decision on 23 July 2009 ([2009] EWCA Civ 792, [2010] 1 WLR 76). The Secretary of State appealed to the Supreme Court.

Issues framed:

• Whether the absence of any statutory right to review the indefinite notification requirements amounts to a disproportionate interference with Article 8 rights of private and family life.

Court’s reasoning and conclusions:

• The court accepted that the notification requirements interfere with Article 8, are "in accordance with the law" and pursue legitimate aims of prevention of crime and protection of others.
• Applying the de Freitas/Huang/Wilson approach to proportionality, the court examined (i) the extent of interference, (ii) the utility of the notification regime, and (iii) how much that utility would be eroded if review were available.
• The court observed that changes introduced by the 2000 Act and 2003 Act (including in-person notification and detailed travel reporting) increased the burdens on some subjects, and that disclosure risks to third parties could materially affect private life.
• The court reviewed domestic and Strasbourg authority. It found that Strasbourg decisions, particularly S and Marper, treat the absence of independent review as highly material to proportionality. Bouchacourt illustrated that independent judicial review or the opportunity to apply for deletion can render lengthy regimes proportionate.
• The court noted there was no evidence before it that reliably identified whether or when certain offenders could be shown never to reoffend, but equally there was no evidence establishing that such identification was impossible. The court rejected a precautionary justification for withholding any review mechanism indefinitely.
• Concluding that Parliament could design a high-threshold review procedure, the court held that a statutory scheme which permanently forecloses any individual review is disproportionate. The Supreme Court dismissed the appeal and reiterated the declaration of incompatibility.

Wider context: The court acknowledged the importance of the notification regime to multi-agency risk management (MAPPA) and supervision on licence but emphasised that the lack of individual review for lifelong notification was a legal defect requiring remedy by Parliament or statute amendment.

Appeal dismissed. The court held that indefinite notification requirements under section 82 of the Sexual Offences Act 2003, without any provision for individual review, constitute a disproportionate interference with Article 8 rights; accordingly the declaration of incompatibility made by the Divisional Court was upheld and repeated. The rationale was that, while the legislative aim is important and the measures are generally rationally connected to that aim, the total absence of any review mechanism meant the interference could not be shown to be no more than necessary.

Permission and prior determinations: Divisional Court (Latham LJ, Underhill and Flaux JJ) granted declarations of incompatibility on 19 December 2008. The Court of Appeal (Dyson, Maurice Kay and Hooper LJJ) upheld that decision on 23 July 2009 ([2009] EWCA Civ 792; [2010] 1 WLR 76). The Secretary of State appealed to the Supreme Court, which dismissed the appeal on 21 April 2010 ([2010] UKSC 17).