Full case report

F & Anor, R (on the application of) v Secretary of State for the Home Department

Reference [2008] EWHC 3170 (QB)
Court Divisional Court

Judge Latham LJ, Underhill and Flaux JJ

Date of Judgment 19 Dec 2008


Summary

Sentencing – Human rights – Sex offenders – Notification requirements – Proportionality – European Convention on Human Rights, Art 8 – Right to respect for private and family life – Sexual Offences Act 2003 – Declaration of incompatibility – Disproportionate interference


Facts

F had been sentenced to 30 months’ detention for sexual offences which he had committed when aged 11. T, an adult, had been sentenced to five years’ imprisonment for indecent assault. F and T sought, among other things, a declaration of incompatibility in respect of s.82, Sexual Offences Act 2003 . By reason of the nature of the offences and the length of their sentences, both claimants were subject to the notification requirements under the 2003 Act for an indefinite period. F and T argued that the effect of subjecting them to notification requirements indefinitely without the opportunity for review was a disproportionate interference with their rights under Art 8 ECHR. F also argued that the requirements of notification of travel imposed upon him by the Act were unlawful by virtue of being contrary to Art 4 of the Council Directive 2004/38 relating to the free movement of persons.


Issue

(1) Whether the travel notification requirement imposed by the act amounted to an unlawful restriction on travel contrary to the EC Directive;
(2)Whether subjecting a young sex offender to notification requirements indefinitely without a provision for the right of review amounted to a disproportionate interference to the offender’s Art 8 right;
(3) Similarly, whether subjecting a sex offender to lifelong notification requirements amounted to a disproportionate interference to the offender’s Art 8 right;
(4) Whether the Court, under s 4 of the Hman Rights Act 1998, should declare s. 82 of the Sexual Offenders Act 2003 incompatible with Art 8 ECHR.


Held

(1) The travel notification requirements were not unlawful.
(2) The principle that the measure of punishment imposed should reflect the fact that the offender was a child had to apply to the notification requirements imposed on F. It was difficult to see how a lifelong registration requirement was proportionate. The absence of a right of review amounted in the case of a young offender to a breach of Art. 8.
(3) As for T, it might prove difficult for an offender to establish that he no longer presented any risk of reoffending. However, it was unjustifiable in Art. 8 terms to deny a person who believed himself to be in that position an opportunity to seek to establish it. In principle an offender was entitled to have the question of whether the notification requirement continued to serve a legitimate purpose determined.
(4) A declaration of incompatibility was made.


Comment

In respect of youth offenders, the court noted that it might be that any right of review should be tightly circumscribed in the public interest in relation to the burden and standard of proof and perhaps also in relation to the length of time that should pass before any such application could be made.

An appeal and cross-appeal were dismissed in July 2009. Permission to appeal to the Supreme Court was granted on 7 December 2009.


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Instructing Solicitors

Stephensons for F; Irwin Mitchell for T; Treasury Solicitors for the Secretary of State