X (South Yorkshire) v Secretary of State for the Home Department & Anor

Disclosure of information about a child sex offender requires a fair and fact-sensitive balance between protecting children and the offender’s Article 8 rights. A disclosure policy should ordinarily require the decision-maker to consider inviting the offender to make representations. Exceptions may arise in an emergency or where seeking representations could itself place a child at risk. A detailed disclosure procedure may lawfully operate alongside a general presumption in favour of disclosure if the guidance makes clear that each individual decision must satisfy the detailed proportionality and data-protection requirements.

The claimant, a registered sex offender, challenged the non-statutory Child Sex Offender Disclosure Scheme Guidance adopted by South Yorkshire Police. He argued that the guidance lacked adequate safeguards because it did not generally provide an opportunity to make representations before disclosure, and that it misstated the legal test by presenting disclosure as presumptive.

The court considered the scheme alongside common-law police disclosure duties, the MAPPA regime and Criminal Justice Act 2003 section 327A. The central issues were whether the guidance required a procedurally fair decision-making process and whether its detailed balancing provisions sufficiently controlled the general presumption of disclosure.

1. Representations. The common-law duty to disclose confidential and potentially damaging information requires a careful, fact-sensitive public-interest assessment, as explained in R v Chief Constable of North Wales ex p Thorpe [1999] QB 396, together with Article 8 proportionality. The decision-maker must consider whether the offender should be invited to make representations before disclosure.
2. The requirement is not absolute. It will ordinarily be difficult to justify proceeding without representations, particularly where information other than convictions is proposed to be disclosed, or where the offender may provide material about risk, consequences, accuracy, ulterior motive or alternative protective measures. An emergency, or the risk that consultation would itself endanger a child, may justify proceeding without it.
3. The approach in R(L) v Commissioner of Police for the Metropolis [2010] AC 410 concerned a materially different statutory employment-vetting scheme. The court nevertheless drew on its reasoning, and on H and L v A City Council [2011] EWCA Civ 403, in recognising the need for representations in an appropriate disclosure decision.
4. The guidance’s detailed procedure required consideration of necessity, pressing need, Article 8 proportionality, the extent of disclosure and compliance with the eight data-protection principles. Read with that procedure, the general presumption in paragraph 2.2 did not require the court to decide whether it was independently lawful. The guidance should, however, be amended to prevent the presumption from undermining those safeguards.
5. The application was allowed to that extent. The court declined to quash the scheme because that could halt child-protection disclosures and create risks to children. Declaratory relief and amendment of the guidance within an agreed timetable were appropriate.

Not stated in the judgment.