A, R (on the application of) v Secretary of State for the Home Department [2021] UKSC 37

A convicted sex offender challenged guidance on the Child Sex Offender Disclosure Scheme, arguing it insufficiently required police to consult him before disclosing his offences. The Supreme Court dismissed the appeal, clarifying that judicial review of policies requires showing they positively authorise or approve unlawful conduct, not merely that they leave uncertainty.

Facts

The appellant was a convicted sex offender whose details were on the Sex Offenders Register. He challenged the Child Sex Offender Disclosure Scheme Guidance issued by the Secretary of State, which enables police to disclose information about sex offenders to members of the public concerned about children’s safety. The appellant had previously succeeded in challenging an earlier version of the Guidance which failed to require police to consider seeking representations from the subject before disclosure. The revised Guidance included paragraph 5.5.4 requiring police to consider if representations should be sought from the subject where concerns arise.

The appellant argued that paragraph 5.5.4 did not go far enough in specifying when police must seek representations, creating an unacceptable risk of unfairness and breach of Article 8 ECHR rights.

Issues

Primary Legal Issue

The central issue was determining the correct legal standard for judicial review of the contents of policy documents. Specifically, whether a policy is unlawful if it creates a risk that officials may fail to comply with legal obligations, or whether the test is narrower.

Secondary Issues

Whether the Guidance failed to meet the ‘in accordance with the law’ requirement under Article 8(2) ECHR, and whether it created an unacceptable risk of breach of common law fairness and Article 8 rights.

Judgment

The Supreme Court unanimously dismissed the appeal, holding that the Guidance was lawful. The Court clarified that the correct test for judicial review of policies derives from Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.

It is best encapsulated in the formulation by Lord Scarman at p 182F (reading the word ‘permits’ in the proper way as ‘sanction’ or ‘positively approve’) and by adapting Lord Templeman’s words: does the policy in question authorise or approve unlawful conduct by those to whom it is directed?

The Court rejected the broader ‘unacceptable risk of unfairness’ test that had developed in subsequent case law, holding:

The principled basis for intervention by a court is much narrower… public authorities have a general duty not to induce violations of the law by others.

Lord Sales and Lord Burnett identified three categories where policies may be unlawful: (i) positive statements of law that are wrong and induce breach of legal duty; (ii) where there is a duty to provide accurate legal advice but the authority fails to do so; (iii) where the authority purports to provide a full account of the legal position but presents a misleading picture.

Application to the Guidance

The Court held the Guidance clearly lawful as it:

informs police decision-makers that before making a disclosure they should consider whether to seek representations from the subject. That is in accordance with, and in no way contradicts, their legal obligations under the common law and article 8 of the ECHR.

The Guidance was not defective merely because it did not spell out in fine detail how decision-makers should assess whether to seek representations in every case.

Implications

This judgment significantly clarifies the law on judicial review of policy documents. The Court corrected a tendency in lower courts to apply broader tests of ‘inherent unfairness’ or ‘unacceptable risk of unlawful outcomes’. The decision establishes that courts should not be drawn into reviewing and criticising policy drafting to an excessive degree, nor should they adopt a revising role requiring them to produce elaborate statements of law.

The judgment also clarifies that the access to justice principle from UNISON [2017] UKSC 51 is distinct from the Gillick principle and applies specifically to measures impeding access to courts and tribunals.

The decision provides important guidance on the relationship between policies and the law, emphasising that policies serve practical administrative purposes and need not eliminate all legal uncertainty or constitute comprehensive textbook statements of the law.

Verdict: Appeal dismissed. The Child Sex Offender Disclosure Scheme Guidance was held to be lawful as it did not authorise or approve unlawful conduct and was in accordance with legal obligations under common law and Article 8 ECHR.

Source: A, R (on the application of) v Secretary of State for the Home Department [2021] UKSC 37