R (on the application of F & Anor) v Secretary of State for the Home Department [2010] UKSC 17

Two sex offenders subject to indefinite notification requirements under the Sexual Offences Act 2003 challenged the absence of any review mechanism. The Supreme Court held that lifelong notification without review was a disproportionate interference with Article 8 ECHR rights.

Facts

Section 82 of the Sexual Offences Act 2003 imposes on anyone sentenced to 30 months’ imprisonment or more for a sexual offence an indefinite (lifelong) duty to notify the police of their name, address, travel plans and other personal details. There is no statutory mechanism for review of these notification requirements.

F was convicted, at the age of 11, of serious sexual offences including two rapes against a six-year-old boy. He was sentenced to 30 months’ imprisonment, automatically triggering lifetime notification requirements. Mr Thompson, born in 1951, was sentenced in 1996 to five years’ imprisonment for indecent assaults on his daughter, similarly triggering lifetime notification.

Both sought judicial review claiming declarations of incompatibility with Article 8 ECHR. The Divisional Court and Court of Appeal granted such declarations on the narrow ground that the absence of any review of indefinite notification rendered it disproportionate. The Secretary of State appealed.

Issues

The sole issue was whether the absence of any right to review of lifetime notification requirements rendered them a disproportionate interference with Article 8 rights. It was common ground that: (i) the notification requirements interfered with Article 8(1) rights; (ii) the interference was in accordance with the law; and (iii) it pursued legitimate aims (prevention of crime and protection of the rights and freedoms of others).

Arguments

Appellant (Secretary of State)

Mr Eadie QC submitted that the notification requirements involved only slight interference with Article 8 rights; that a right of review would compromise the utility of the scheme; that resource and operational difficulties weighed against a review mechanism; and, critically, that it was never possible to be sure that a serious sexual offender posed no significant risk of re-offending, relying on statistical evidence including the Cann study indicating long ‘life-spans’ of sexual re-offending.

Respondents

The respondents submitted that lifelong notification without any opportunity to demonstrate that an individual no longer posed a risk of re-offending was disproportionate. They relied on Strasbourg authority including S and Marper v United Kingdom and Bouchacourt v France, which emphasised the importance of independent review of retention of sensitive personal data.

Judgment

Lord Phillips (with whom Lady Hale and Lord Clarke agreed, and with whom Lord Hope and Lord Rodger agreed) dismissed the appeal and upheld the declaration of incompatibility.

Extent of interference

The Court held that the requirements were not minor. The 2000 and 2003 Acts substantially increased the burden, particularly the requirement to attend in person at a police station to give notification of travel plans. Frequent travellers faced significant inconvenience and a real risk that third parties might become aware of their status on the Sexual Offences Register, with serious consequences for their private and family lives.

Value of the requirements

Lord Phillips accepted that the notification requirements served important functions, particularly in underpinning the MAPPA arrangements for managing risk. However, where an offender no longer posed a significant risk of re-offending, the requirements served no legitimate purpose. He endorsed the Court of Appeal’s reasoning that the assumptions underpinning indefinite notification — that the offender presents an ongoing risk and that notification assists in prevention and detection — are falsified where it is clear there is no real risk of re-offending.

Practicability of review

The Court considered statistical and Parliamentary material, including the 2004 Cann study showing approximately 75% of monitored sexual offenders were not reconvicted. No evidence demonstrated that it was impossible to identify offenders who no longer posed a significant risk. The court noted that almost all comparable foreign jurisdictions (France, Ireland, Australian States, Canada, South Africa, USA) include review mechanisms, suggesting review is practicable.

Strasbourg jurisprudence

Although no Strasbourg case bound the court on this precise point, S and Marper v United Kingdom and Bouchacourt v France indicated that the availability of independent review of retention of sensitive personal data is highly material to proportionality. Paragraph 68 of Bouchacourt suggested that without the right to apply for deletion of data the lengthy registration period would have been disproportionate.

Conclusion

Lord Phillips concluded that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of further offending could be discounted to the extent that continued notification was unjustified. The legislature could set a high threshold for review. The absence of any review mechanism rendered the lifelong notification requirements disproportionate.

Lord Rodger agreed but emphasised that the notification requirements themselves, including in-person attendance and travel notification, were not in themselves disproportionate; the problem was only the absence of any review. He noted that, in F’s case, the requirement would affect the whole of his adult life arising from offending at age 11, making the absence of review especially objectionable.

Implications

The decision establishes that, where the State imposes serious and indefinite restrictions on private life arising from criminal convictions, proportionality under Article 8 generally requires some mechanism for periodic review to determine whether continued interference remains justified in the individual case.

The judgment did not strike down the notification requirements themselves, which remain valid and important tools for managing the risk posed by serious sexual offenders. Nor did it suggest that either F or Thompson would necessarily succeed on a review; the threshold for review may legitimately be set high by Parliament regarding timing, frequency and standard of proof.

The decision is significant for offenders subject to indefinite statutory requirements (estimated at around 24,000 when judgment was given). It illustrates the limits of automatic, blanket statutory consequences which admit of no individual reassessment, especially where the personal impact is substantial and persistent. It also demonstrates how the Strasbourg jurisprudence on retention of personal data (S and Marper, Bouchacourt) influences the proportionality analysis in domestic Article 8 challenges.

Practically, the declaration of incompatibility left it to Parliament to introduce an appropriate review mechanism. The case is particularly notable for child offenders, as Lord Rodger observed, given the recognised possibility that children may not retain offending tendencies into adulthood, making review especially important in such cases.

Verdict: Appeal dismissed. The Supreme Court upheld the declaration that the lifetime notification requirements under section 82(1) of the Sexual Offences Act 2003 are incompatible with Article 8 ECHR because they contain no mechanism for review of the justification for the continuation of the requirements in individual cases.

Source: R (F) v Secretary of State for the Home Department [2010] UKSC 17