R (on the application of F (by his litigation friend F)) and Thompson v Secretary of State for the Home Department

Lifetime notification requirements imposed on serious sexual offenders constitute a disproportionate interference with the right to respect for private life where the legislation provides no mechanism for individual review. The prevention of sexual offending is an exceptionally important objective, and notification requirements are rationally connected to it. They may nevertheless cease to serve that objective where an offender can reliably demonstrate that the risk of further sexual offending is no longer significant.

Uncertainty about risk does not justify an irrebuttable lifetime requirement. A review scheme may impose an appropriately high threshold, including restrictions on timing and repeated applications. The incompatibility arises from the complete absence of review, rather than from lifetime notification in every individual case.

Two offenders became subject to lifetime notification requirements following sentences of at least 30 months for serious sexual offences. One was aged 11 when he committed his offences. They sought judicial review and declarations that the absence of any means of reviewing the continuing need for notification was incompatible with article 8 of the European Convention on Human Rights.

The Divisional Court granted declarations of incompatibility. The Court of Appeal upheld that decision in [2009] EWCA Civ 792, [2010] 1 WLR 76. The Secretary of State appealed. The sole issue was whether lifetime notification requirements under section 82 of the Sexual Offences Act 2003 were disproportionate because they provided no right of individual review.

1. Appeal dismissed unanimously. Lord Phillips, with whom Lady Hale and Lord Clarke agreed, held that lifetime notification requirements without any mechanism for individual review constituted a disproportionate interference with article 8. Lord Hope and Lord Rodger agreed with that conclusion. The declaration of incompatibility made by the Divisional Court was repeated.
2. The prevention of sexual offending and the protection of potential victims were exceptionally important legitimate aims. Notification requirements were rationally connected with those aims and assisted the management and supervision of offenders. The requirements were not inherently disproportionate merely because they could operate for life.
3. The requirements could cause significant interference with private life. They linked personal information with a sexual conviction, required repeated attendance at police stations, imposed particular burdens on frequent travellers and created a risk that an offender's status would become known to third parties.
4. The decisive defect was the absence of any opportunity to establish that continued notification no longer served a legitimate purpose. If an offender no longer posed a significant risk of further sexual offending, continued notification would neither protect the public nor assist effective supervision. It would instead burden both the offender and the responsible authorities.
5. The evidence did not establish either that reliable risk assessment was impossible or that every serious sexual offender necessarily retained a significant lifetime risk. Statistical uncertainty could not, through a precautionary principle, justify notification for life without review. An appropriate tribunal could in some circumstances reliably discount the risk sufficiently to make continued notification unjustified.
6. Parliament could prescribe a high threshold for review, regulate when applications could first be made and limit their frequency. The judgment did not determine that either respondent would succeed on review. The position of child offenders reinforced the need for review because an indefinite requirement could govern the whole of their adult lives.
7. Lord Rodger added that proportionality should ordinarily be assessed on the basis that information would be handled lawfully and appropriately. Possible misuse did not itself make the notification requirements disproportionate. He nevertheless agreed that the legislation required a means of ending notification when continued registration was no longer justified.

1. United Kingdom Supreme Court: The Secretary of State's appeal was dismissed unanimously. The court repeated the declaration that lifetime notification requirements without individual review were incompatible with article 8 of the European Convention on Human Rights.
2. Court of Appeal: In [2009] EWCA Civ 792, [2010] 1 WLR 76, the court upheld the Divisional Court's decision that the absence of review made the requirements disproportionate.
3. Divisional Court: Latham LJ, Underhill J and Flaux J allowed both claims for judicial review and made a declaration of incompatibility.