Irfan, R (on the application of) v Secretary of State for the Home Department

A notification regime imposed on convicted terrorist offenders for a fixed period of 10 years may be a proportionate interference with private life under Article 8, despite containing no right to seek a review. The rule in [2011] 1 AC 331 is confined to lifetime notification requirements without review. Proportionality depends on the nature and practical burden of the scheme, the serious national-security aim pursued, and Parliament’s judgment. Terrorism has features which justify a precautionary approach. The possible existence of exceptional offenders who present no significant future risk does not invalidate a general and relatively light-touch statutory regime.

The appellant had been convicted of assisting the commission of acts of terrorism, contrary to section 5(1) of the Terrorism Act 2006. On release from imprisonment, he became subject to the notification requirements in Part 4 of the Counter-Terrorism Act 2008 for 10 years.

He sought judicial review, contending that the absence of a right to review the continuing need for notification made the regime incompatible with Article 8. The Divisional Court rejected the claim: [2012] EWHC 840 (Admin). The appeal raised whether the Supreme Court’s decision concerning lifetime sex-offender notification requirements required the same result for a fixed 10-year terrorism-notification period.

1. Appeal dismissed unanimously. The court held that the 10-year notification requirement under Part 4 of the Counter-Terrorism Act 2008 was not incompatible with Article 8, either generally or as applied to the appellant.

2. The ratio of F and Thompson v Secretary of State for Justice, [2011] 1 AC 331, was confined to lifetime notification requirements imposed without any right of review. Lord Phillips had deliberately identified the critical issue in that case as the absence of review for a lifetime requirement. It was therefore not binding authority that every significant fixed notification period without review was disproportionate.

3. Terrorism offences form a materially different context from sexual offending. They may be driven by ideology or fanaticism, may produce grave and widespread harm, and justify a precautionary approach. Considerable weight was properly given to Parliament’s assessment, while preserving the requirement that the interference be proportionate.

4. The court assessed the actual burden of the regime. The appellant’s annual police-station attendance was brief. The associated police visits and travel-notification obligations were limited. Although these measures interfered with private life, they were light-touch when balanced against national security and the prevention of serious crime.

5. The possibility that an exceptional terrorist offender might present no significant future risk did not make the general scheme disproportionate. Parliament may draw a general line where the regime is beneficial when judged overall, even if hard individual cases may arise. The ending of more intrusive asset-freezing restrictions under the Terrorism (United Nations Measures) Order 2006 did not undermine the proportionality of the separate and less intrusive notification regime.

1. Court of Appeal (Civil Division): Dismissed the appellant’s appeal and upheld the Article 8 compatibility of the fixed 10-year notification regime.

2. High Court, Queen’s Bench Division, Divisional Court: Rejected the judicial-review challenge, finding no incompatibility with Article 8: [2012] EWHC 840 (Admin).