This appeal concerns the question as to whether certain provisions of the Sexual Offences Act 2003 (“the 2003 Act”) are incompatible with Article 8 of the European Convention on Human Rights insofar as they imposes on a person convicted of sexual offences and sentenced to imprisonment for a period of 30 months or more the requirement to notify the police of certain information, including his home address (and, if applicable, the place at which he resides), and be placed on the Sex Offenders Register. Any changes in the information given must be notified within 3 days of the changes occurring. The changes that need to be notified include where the offender travels within the UK for periods of in excess of 7 days at a time. The 2003 Act also gave the Secretary of State the power to adopt regulations requiring offenders who leave the UK to give notification to the police before they leave and about their return. Such regulations were made in 2004. Importantly for this case, the 2003 Act provides for the notification requirements to be imposed for an indefinite period without the possibility of review. Likewise, such offenders are placed on the Sex Offenders Register for life without the possibility of review.
The claimants (an adult offender and a child offender) argued that these provisions were a disproportionate interference with their Article 8 rights. At first instance, the Divisonal Court agreed ( EWHC 3170 (Admin)). Latham LJ, Underhill J and Flaux J granted a declaration of incompatibility. The Secretary of State appealed, but without success. The Court of Appeal (Dyson, Maurice Kay and Hooper LJJ,  EWCA Civ 792
) held that, as a matter of principle, an offender is entitled to have the question whether the notification requirements etc continue to serve a legitimate purpose determined on a review. It was not necessary that all sex offenders sentenced to imprisonment/detention for 30 months or more should be subject to such requirements for the rest of their lives without the possibility of review: the 2003 Act did not cater for those offenders who show no real risk of re-offending.
The Court of Appeal highlighted the significant impact that the notification requirements can have on offenders – particularly for those who frequently travel at short notice. Moreover, there was a real possibility of adverse consequences in the event of disclosure of the fact that the offender is on the Sex Offenders Register, and such disclosure was a real possibility. In other words, whilst for some offenders the requirements of the 2003 Act would constitute a modest interference with their Article 8 rights, for others they would be more substantial.
The Court of Appeal was at pains to dampen the “spectre of floodgates” by emphasising that it was still open to Parliament to set the review threshold at a “suitably high level” as regards the timing of the first opportunity for review, the frequency with which applications could be made and what has to be proved in order for the requirements to be varied or discharged (para 47); but a blanket ban on reviews was disproportionate and hence incompatible with Article 8. The Court added that the case was “even stronger” in respect of young offenders. Perhaps anticipating the reaction that the judgment might have in the (popular) press, the Court added that it was “not putting the interests of offenders ahead of those of victims”: the Court recognised the importance of the issues raised by the Secretary of State in his appeal and that they “touch matters which are rightly of great concern to the public”, but the notification requirements as currently framed did nothing to promote the laudable objective of detecting and preventing sexual offending and were disproportionate for that reason (para 65).
Permission to appeal was granted by the Supreme Court on 7 December 2009. The Court now has to consider, among other things, whether the Court of Appeal was right to distinguish a number of cases in which the domestic courts and ECtHR have upheld the proportionality of certain aspects of regime installed by the 2003 Act and its predecessor. The case is bound to attract considerable media attention.