M, R (On the Application Of) v Secretary of State for the Home Department

Police may make unannounced visits to a registered sex offender’s home to seek consensual entry. Knowledge that refusal may lead to a warrant does not automatically make consent involuntary. Waiver of common-law and Article 8 rights depends on whether consent was voluntary, informed and unequivocal in the particular circumstances. If Article 8 is engaged, such visits are lawful where they pursue prevention of crime and protection of others and remain proportionate. The statutory warrant safeguards support that conclusion. The notification and monitoring provisions form one scheme. Article 8 does not require a separate exemption from the warrant power where an offender may obtain exemption from the notification requirements and thereby leave the scheme as a whole.

The appellant had been convicted of serious sexual offences and was subject for life to the notification requirements in Part 2 of the Sexual Offences Act 2003. Police made informal visits to his home, during which he permitted entry. He sought judicial review, arguing that such visits were not genuinely consensual and that the absence of a separate exemption from the statutory warrant power was incompatible with Article 8.

The Divisional Court held that the statutory safeguards were sufficient and that the visits were consensual: [2012] EWHC 4034 (Admin). Permission to appeal was granted on the two Article 8 issues considered by the Court of Appeal.

1. The appeal was dismissed. Lord Justice Moore-Bick gave the judgment, with which Lord Justice Tomlinson and Lady Justice King agreed.
2. Waiver of a common-law or Article 8 right requires a voluntary, informed and unequivocal election. The approach in Millar v Dickson [2001] UKPC D4 was applicable. Knowledge that refusal might lead to a warrant may influence an offender, but does not by itself establish that his will was overborne. The issue is fact-sensitive. Entry alone does not necessarily amount to consent to entry into every room or examination of correspondence or a computer.
3. The statutory warrant procedure contained significant safeguards. An application had to be made by a senior officer and supported by evidence, with full and frank disclosure. A magistrate had to be satisfied that entry was necessary and had been unsuccessfully sought on at least two occasions. The magistrate controlled the extent of execution and any use of reasonable force. The principles concerning warrant applications in G v Commissioner of Police of the Metropolis [2011] EWHC 3331 (Admin) supported that analysis. A warrant would not inevitably be granted, so its possible existence did not automatically invalidate consent.
4. Informal visits were not made under the warrant power. The police could visit an offender’s home to seek co-operation, as other people could, and visits without prior warning were not unlawful merely because they were unannounced. If Article 8 was engaged, the visits pursued the legitimate aims of preventing crime and protecting the rights of others. They were proportionate. Unreasonable frequency or conduct liable to disclose convictions to others might engage separate Convention issues, but those matters did not arise on the facts.
5. The analogy with R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3 and MM v United Kingdom (Application No. 24029/07) was rejected. Those cases concerned consent given in the context of compulsory criminal-record disclosure and systematic data processing. They did not establish that consent could never waive Article 8 protection. R (Catt) v Association of Chief Police Officers [2013] EWCA Civ 192, R (H and L) v A Council [2011] EWCA Civ 403 and R (F) v Secretary of State for the Home Department [2010] UKSC 17 concerned different forms of data collection or disclosure and did not assist on the consent issue.
6. Part 2 of the Sexual Offences Act 2003 created a single protective scheme comprising notification, informal monitoring and, where necessary, authorised searches. Exemption from the notification requirements would remove an offender from the scheme as a whole. Separate exemption from the search power was not required to make the scheme proportionate. The appeal was therefore dismissed.

1. Court of Appeal (Civil Division): The appeal was dismissed on 18 December 2014. The court held that informal visits seeking consensual entry were lawful and that no separate exemption from the statutory warrant power was required.
2. High Court of Justice, Queen’s Bench Division, Administrative Court: The Divisional Court held that section 96B of the Sexual Offences Act 2003 contained adequate safeguards for Article 8 purposes and that the informal visits were consensual: [2012] EWHC 4034 (Admin). Permission to appeal was refused by that court and subsequently granted by the Court of Appeal on two limited issues.