Sex offenders’ lifelong living and travel restrictions were breach of human rights

21 April 2010 by Adam Wagner

R (JF (by his litigation friend OF)) & Anor v SSHD [2010] UKSC 17

(Read Judgment or Supreme Court press summary)

The Supreme Court has unanimously ruled that lifelong requirements for sex offenders to notify the police when they move house or travel abroad are a breach of Article 8 of the European Convention on Human Rights. 24,000 former offenders will potentially be affected by the decision.

Under section 82  of the Sexual Offences Act 2003 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 when they travel abroad. Crucially, there is no right to a review of the necessity for the notification requirements.

The Respondents were convicted sex offenders. Both challenged the notification requirements by way of judicial review, on the basis that the requirements were a disproportionate manner of pursuing a legitimate aim of preventing crime and therefore breached their rights under Article 8.

Lord Philips gave the leading judgment. He emphasised that the question (as in the case of all human rights claims involving a “qualified” right in general and Article 8 in particular) was one of proportionality, and that the correct test, as had been set out in previous decisions, was:

whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective (para 17)

The Court went on to discuss UK and European authorities, and in particular referred to the Marper judgment, which we discussed earlier this week in relation to the retention of DNA samples (para 31). The European Court of Human Rights had been particularly concerned that in cases involving DNA there was no provision for independent review, as was the case with the notification requirements in this appeal.

The Court were concerned about risks of disclosure to third parties inherent in offenders having to visit police stations to report. They said:

… the fact that under the 1997 Act the relevant notification could be made in writing and that the information to be provided was limited meant that the task of giving the notification could be described as a mere inconvenience. This ceased to be the case with the increased requirements imposed first by the 2000 Act and then by the 2003 Act. These requirements, which included the requirement to give notification in person at a police station, imposed a considerable burden on anyone who was a frequent traveller, whether within or outside the jurisdiction, as illustrated by the examples given by the Court of Appeal. There is an obvious risk inherent in making repeated visits to a police station to give notification of travel plans that third parties will become aware of the reason for so doing. (para 43)

The Court were also concerned about the statistical likelihood of the offenders reoffending, which goes directly to the question of whether the lifelong restrictions were proportionate:

This recommendation illustrates why this paper is inconclusive. Caution must, of course, be taken in relying on reconviction statistics because these will necessarily be lower than the actual incidence of re-offending. Nonetheless, these statistics show that 75% of the sexual offenders who were monitored were not reconvicted. No light is thrown on the question of whether it was possible to identify by considering these whether there were some reliable indications of offenders who did not pose a significant risk of re-offending. (para 55)

The result of the judgment is that the Supreme Court have issued a “declaration of incompatibility” with the Human Rights Act 1998. This does not, however, mean that the law will immediately be disapplied. Rather, those affected will have to wait for Parliament to approve the Declaration and therefore change the law.

Read more:

• Read Judgment or Supreme Court press summary
• Press coverage in The Times and The Guardian