In its first judgment of the Easter Term, a unanimous Supreme Court (Lords Phillips, Hope and Rodger, Lady Hale and Lord Clarke) dismissed the appeal of the Secretary of State against a declaration of incompatibility originally made by the Divisional Court ([2010] UKSC 17). The Court declared that certain provisions of the Sexual Offences Act 2003 (“the 2003 Act”) were incompatible with Article 8 of the European Convention on Human Rights.

The decision has attracted a certain amount of adverse press comment (of which more later) but is, in essence, a straightforward application of Strasbourg Article 8 principles to a draconian and inflexible statutory regime.

The case concerned section 82 Sexual Offences Act 2003 (“the 2003 Act”) by which all persons sentenced to 30 months’ imprisonment or more for a sexual offence become subject to a lifelong duty to keep the police notified of where they are living and of travel abroad (“the notification requirements”).  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.   These notification requirements are imposed for an indefinite period without the possibility of review.  O’ffenders 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 Divisional Court agreed ([2008] EWHC 3170 (Admin)). Latham LJ, Underhill J and Flaux J granted a declaration of incompatibility. The Secretary of State’s appeal was dismissed. The Court of Appeal (Dyson, Maurice Kay and Hooper LJJ, [2009] 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.

Lord Phillips gave the leading judgment (with which all the members of the court agreed, Lord Rodger adding some short points).   It was common ground that the notification requirements interfered with the offenders’ rights to privacy, that the interference was in accordance with the law and that it was directed at the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others.   The issue before the court was one of proportionality.

Lord Phillips considered a number of Strasbourg cases in which the “notification” regime had been considered.  First, he pointed out that in the well-known case of S and Marper v United Kingdom (2008) 48 EHRR 1169 in which the Court had, in finding a violation, paid particular regard to the fact that

“…in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.” (para 119)

He also relied on the recent case of  Bouchacourt v France Judgment of 19 December 2009 (available only in French) where no violation was found in relation to a 30 year notification requirement which was subject to review.

The crucial question was whether a review could ever decide that the notification requirement should be lifted.  The Court accept that this depended on the question as to it could ever be demonstrated that a person who had committed a serious sex offence posed “no significant risk of re-offending”.   There was no evidence before the Court either way.  As Lord Phillips put it

“No evidence has been placed before this court or the courts below that demonstrate that it is not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who pose no significant risk of re-offending. It is equally true that no evidence has been adduced that demonstrates that this is possible. This may well be because the necessary research has not been carried out to enable firm conclusions to be drawn on this topic. If uncertainty exists can this render proportionate the imposition of notification requirements for life without review under the precautionary principle? I do not believe that it can”. (para 56).

He was of the view that is was

obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified. (para 57).

Lord Rodger agreed with Lord Phillips and added a few short observations supporting his reasoning.

As we have mentioned the case has attracted considerable media comment.   The decision was described in neutral terms in the Guardian, which quoted the Howard League for Penal Reform in its support – and in the Times.   However, The Sun’s article is headed “Rapists win new legal rights” and begins in characteristic style

“RAPISTS and paedophiles won a legal victory today — after moaning the sex offenders’ register breached their HUMAN RIGHTS. … The Supreme Court ruling will open the door for hundreds of serious criminals to conceal their sick past”.

Nevertheless, the rest of the article provides a fair summary of the case.  The most critical comments come perhaps in the Daily Mail.  Its headline makes the position clear: “Paedophiles and rapists win right to wipe their names from register – because it could breach THEIR human rights” and the tenor of the comments to the article can best be described as “disapproving”.  The “media furore” is discussed by Jonathan Rayner on the Law Society Gazette blog, who rightly concludes that “Lawyers and the government have failed to sell the act’s virtues to great swathes of the British public, which is worrying“.

[Update]   There is an interesting post about the case on the excellent Human Rights in Ireland blog which points out that, under the similar legislation in Ireland there is a provision for review after the expiration of 10 years from the date of release from prison.   There is also a post about the case on the excellent new UK Human Rights Blog.

The incomprehension of certain sections of the media is perhaps understandable in the emotive area of sex offenders.  Nevertheless, the legal result was inevitable: this is a rare case in which 11 judges have all come to the same conclusion.  More broadly, this seems to us to be exactly the kind of decision which was contemplated at the time when the Human Rights Act 1998 was enacted.  The Courts have pointed out a potential disproportionate consequence of a piece of legislation but have left it to the legislature and the executive to decide how to deal with the problem.