R (TF and Thompson) v SSHD  EWCA Civ 792
(1) The indefinite nature of the notification requirements of Part 2 of the Sexual Offences Act 2003 (the Sex Offenders Register) is a disproportionate breach of Article 8: there is no opportunity for review of the necessity of the requirements, and the case is stronger in the case of young offenders. (2) The scheme where it related to foreign travel did not breach article 4 ("right of exit") of EC Council Directive 2004/38.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
CRIME — Sexual offences — Notification requirements — No mechanism to review indefinite notification requirements — Whether disproportionate interference with offender’s Convention right to respect for private and family life — Whether breach of Convention rights — Whether declaration of incompatibility appropriate — Whether infringing right to freedom of movement — Human Rights Act 1998, Sch 1, Pt I, art 8 — Sexual Offences Act 2003, s 82, Sch 3 — Parliament and Council Directive 2004/38/EC, art 4
The absence of a right of review at any time of notification requirements imposed under s 82(1) and Sch 3 of the Sexual Offences Act 2003 was a disproportionate interference with an offender’s rights under art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. As a matter of principle, an offender was entitled to have the question whether the notification requirements continued to serve a legitimate purposes determined on a review; and the case for granting a declaration of incompatibility pursuant to s 4 of the Human Rights Act 1998 was even stronger in the case of young offenders than in the case of adult offenders. However, restriction on travel included in notification requirements did not infringe art 4 of Directive 2004/38.
The Court of Appeal so held in a reserved judgment (1) dismissing the appeal of the Secretary of State for the Home Department from the decision of the Divisional Court of the Queen’s Bench Division (Latham LJ, Underhill, Flaux JJ) on 19 December 2008 ( 2 Cr App R (S) 325) that the absence in the Sexual Offences Act 2003 of any mechanism for review of the notification requirements under s 82(1) and Sch 3 was a disproportionate interference with the rights of the claimants, JF (by his litigation friend OF) and Angus Aubrey Thompson, and making a declaration of incompatibility, and (2) dismissing JF’s cross-appeal on the ground that the Divisional Court had erred in concluding that his notification requirements on travel did not infringe art 4 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states (OJ 2004 L158, p 77).
JF was 11 at the time when he offended. Both claimants had committed offences to which s 82(1) and Sched 3 applied and for an indefinite period from their date of conviction they were therefore subject to the notification requirements under the 2003 Act and detailed in the Sexual Offences Act 2003 (Travel Notification Requirements) Regulations 2004 (SI No 2003/1220).
DYSON LJ said that it was common ground that the provisions of the 2003 Act interfered with an offender’s art 8 rights, that the interference was “in accordance with the law” and pursued a legitimate aim, namely the prevention of crime and the protection of rights and freedom of others. The issue was whether the measures were proportionate to that legitimate aim. It was important to both claimants as well as to the Secretary of State and the public at large to know whether the scheme was incompatible with art 8 on the grounds that there was no right to review notification requirements that had been imposed for an indefinite period. It was not in dispute that notification requirements for an indefinite period without any right of review would be disproportionate unless the interference with a person’s art 8 rights that they entailed was no more than was necessary to achieve the legitimate objective of assisting the police in the prevention and detection of crimes. The question was whether, in order to achieve that objective, it was necessary that all sex offenders who were sentenced to imprisonment or detention for 30 months or longer should be subject to the notification requirements for the rest of their lives without the possibility of a review. Secondly, for the reasons given in the course of His Lordship’s analysis of the authorities, the court did not consider that there was any binding authority which decided the question whether the imposition of indefinite notification requirements without the possibility of review was of itself a disproportionate interference with an offender’s art 8 rights. Although for some offenders the notification requirements might be a modest interference with their art 8 rights, for others the interference would be more substantial. The aim of the regime was to assist in the prevention and detection of sexual offences. To keep a person who no longer presented a risk of sexual offending on the police data base did nothing to promote the aims of the notification requirements. The court concluded that, as a matter of principle, an offender was entitled to have the question of whether the notification requirements continued to serve a legitimate purposes determined on a review. The case for holding that the absence of a right of review of indefinite notification requirements rendered s 82(1) incompatible with art 8 was even stronger in the case of young offenders than in the case of adult offenders. As to the first claimant’s cross-appeal, the notification requirements did not amount to a prohibition on travel in breach of art 4(1) of Directive 2004/38. In conclusion, although the legislative objective in establishing a sex offenders register was entirely consistent with assisting the police to detect and prevent sexual offending and was a legitimate objective, a scheme which obliged offenders who had been sentenced to 30 months’ detention or more to remain on the register for the rest of their lives without any possibility of review, even if they could clearly demonstrate that they were no longer a risk, did nothing to promote that legitimate objective and was disproportionate for that reason.
Maurice K and Hooper LJJ agreed.
R (F) v Secretary of State for Justice
R (Thompson) v Secretary of State for the Home Department
B;  WLR (D) 253
CA: Dyson, Maurice Kay, Hooper LJJ: 23 July 2009
Appearances: Hugh Southey (instructed by Stephensons LLP) for JF; Tim Owen QC and Peter Weatherby (instructed by Irwin Mitchell) for Thompson; Jeremy Johnson (instructed by Treasury Solicitor) for the Secretary of State.
Reported by: Carolyn Toulmin, barrister
ICLR website - Permission to appeal given by Supreme Court on 7/12/09