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

Notification requirements imposed automatically on persons convicted of specified terrorist offences may be compatible with Article 8 even without an individual review mechanism. The assessment is context-sensitive. The gravity and unpredictability of terrorist offending, Parliament’s margin of discretion, graduated notification periods, modest practical demands and statutory controls over information may justify the absence of review.

The possibility of wholly exceptional cases in which an offender presents no significant future risk does not, by itself, make the scheme disproportionate. A sentencing judge’s general prediction that an offender would not offend again is insufficient to establish disproportionality in the individual case.

The claimant had pleaded guilty to a terrorism offence and received a four-year sentence. He consequently became subject to the automatic notification requirements in Part 4 of the Counter-Terrorism Act 2008, including periodic reporting, notification of changes of address and foreign-travel information.

He sought judicial review and declarations under section 4(2) of the Human Rights Act 1998, contending that the requirements interfered with Article 8 and were disproportionate. The principal issues were whether there was an Article 8 interference, whether the automatic regime was disproportionate because it contained no right of review, and whether its application was disproportionate in his individual circumstances.

1. Article 8 interference. The requirements compelled the claimant to provide the State with personal information about his identity, residence and foreign travel. Although their practical effects were modest, the case was not de minimis. The requirements therefore engaged Article 8.
2. Legitimate aim and proportionality. The regime pursued legitimate aims, including the investigation and deterrence of terrorist crime and the protection of national security. Parliament was entitled to a broad margin of discretion in legislating against terrorism.
3. The requirements applied only to persons convicted of specified serious terrorist offences. Their duration was graduated according to the sentence imposed. Personal data was subject to the Data Protection Act 1998, and information obtained under Part 4 could be used only for compliance with that Part and the investigation of terrorism. These features supported proportionality.
4. The reasoning of the Supreme Court in F v Secretary of State [2011] 1 AC 331 concerning indefinite notification requirements for sex offenders could not simply be transferred to the materially different context of terrorist offending. Terrorist offending may arise from ideology, religious fervour, fanaticism, willingness to sacrifice oneself or domination by another personality. Future risk was therefore unusually difficult to predict.
5. There might be wholly exceptional cases in which a terrorist offender could demonstrate no significant future risk. That possibility did not require a review mechanism in every case. The automatic scheme, including its graduated periods and modest requirements, was within Parliament’s margin of discretion.
6. The claimant’s individual challenge also failed. The sentencing judge’s acceptance that he would not act similarly again, without particular reasoning amounting to a prediction of future conduct, did not make the requirements disproportionate.
7. The application for judicial review was dismissed. The Secretary of State was awarded the costs, subject to the appropriate public-funding order. The court refused permission to appeal, leaving that question to the Court of Appeal.

First-instance judicial review in the Administrative Court. Permission to bring the claim had been granted by Mr Justice Owen on the papers. The application was dismissed by Lord Justice Laws and Mr Justice Owen.