R (A) v Secretary of State for the Home Department

The Supreme Court considered the legal standard for judicial review of government policy documents and applied the test derived from Gillick v West Norfolk and Wisbech Area Health Authority: a policy is unlawful if, read objectively, it authorises, sanctions or positively approves conduct that is unlawful. The court held that the Child Sex Offender Disclosure Scheme Guidance (the Guidance) did not misdirect decision-makers about their legal duties under the common law, the Human Rights Act 1998 (in particular article 8 ECHR) or the relevant statutory MAPPA duties (Criminal Justice Act 2003, ss 325-327A).

The Guidance requires decision-makers to consider seeking representations from a subject (paragraph 5.5.4) and to apply a three-stage legal test before disclosure (paragraph 5.6.15). The court concluded that those provisions, read as a whole and with the appended decision form, are compatible with the common law duty of fairness and article 8. The court rejected arguments that a more demanding or statistical test of "unacceptable risk" should be applied to policies, and declined to displace the Gillick principle in favour of broader formulations derived from Refugee Legal Centre, Tabbakh or subsequent cases. It also rejected arguments based on the "in accordance with the law" requirement in article 8(2), article 3 ECHR, and the access-to-justice principle in UNISON as applying to the Guidance.

The appellant is a convicted child sex offender subject to notification requirements and MAPPA. He challenged the lawfulness of the Child Sex Offender Disclosure Scheme Guidance issued by the Secretary of State under common law powers, arguing that it failed adequately to require police to consult subjects before disclosing information to members of the public, thereby creating a risk of breach of the common law duty of fairness and of article 8 ECHR.

Procedural history: the Guidance had earlier been held unlawful in part by the Divisional Court in R (X) v Secretary of State for the Home Department [2012] EWHC 2954 (Admin), leading to amendments (notably insertion of paragraph 5.5.4). At first instance Dingemans J ([2014] EWHC 4106 (Admin)) rejected the appellant's renewed challenge to the amended Guidance. The Court of Appeal ([2016] EWCA Civ 597) dismissed the appeal. The appellant appealed to the Supreme Court.

The appellant sought judicial review and a declaration that the Guidance was unlawful on grounds that it did not sufficiently direct when a police force must seek representations from a subject, that it failed the article 8(2) "in accordance with the law" standard of certainty and accessibility, and that it omitted a mechanism for subjects to apply for exemption from the scheme.

The Supreme Court framed the issues as: (i) what legal test applies to challenge of a policy document and whether the Gillick test remains authoritative; (ii) whether the Guidance misdirects decision-makers so as to authorise unlawful conduct by omission or commission; and (iii) whether the Guidance fails the article 8(2) requirements or creates unacceptable risks under other doctrines (inherent unfairness, access to justice, article 3 concerns).

Reasoning: the court adopted Gillick as the governing principle: a policy is unlawful if it authorises, sanctions or positively approves unlawful conduct. It explained why a more expansive test of "unacceptable risk" or statistical assessment of likely unlawful outcomes is incompatible with Gillick and would impose impractical burdens on policy-makers and courts. Applying Gillick, the court found the Guidance lawful: it instructs police to consider representations (paragraph 5.5.4), sets out a detailed decision-making process (including the three-stage test in paragraph 5.6.15) and includes an appended decision form requiring explicit justification. The Guidance does not contradict the governing law and does not render officers likely to act unlawfully if they follow it. The court also held that article 8(2) does not require elimination of all uncertainty in domestic law and that the Guidance contributes to rather than undermines predictability. The court rejected reliance on Tabbakh, Refugee Legal Centre, BF (Eritrea) and related authorities as requiring a different test, explaining how those cases relate to Gillick or to the separate access-to-justice principle in UNISON.

Relief sought: judicial review declaration that the Guidance was unlawful and amendment of the scheme. Outcome: the Supreme Court dismissed the appeal and upheld the lawfulness of the Guidance.

The appeal is dismissed. The court applied the Gillick principle: a policy is unlawful only if it positively authorises, sanctions or encourages conduct that is unlawful. The Guidance, read as a whole and in the context of MAPPA and the statutory duties in the Criminal Justice Act 2003, does not misdirect decision-makers and does not authorise unlawful interference with article 8 rights. It requires consideration of representations (paragraph 5.5.4) and a three-stage proportionality/data-protection test (paragraph 5.6.15), and so is lawful. Broader formulations asking whether a policy creates an unacceptable risk of unlawful outcomes in a significant number of cases are not the correct test for the lawfulness of policy guidance.

Divisional Court: R (X) v Secretary of State for the Home Department [2012] EWHC 2954 (Admin) (Guidance then held unlawful in part); High Court (Dingemans J): [2014] EWHC 4106 (Admin) (challenge to amended Guidance dismissed); Court of Appeal: [2016] EWCA Civ 597 (appeal dismissed); Supreme Court: [2021] UKSC 37 (appeal dismissed).