“Follow the money” powers do not breach sex offenders’ privacy rights
18 September 2013
R (on the application of) Christopher Prothero v Secretary of State for the Home Department  EWHC 2830 (Admin) 18 September 2013 – read judgment
This was a challenge to regulations introduced in 2012 under the Sexual Offences Act 2003 which require a person on the Sex Offenders Register to provide details of bank, debit or credit card accounts held by him. The claimant sought a declaration that this particular regulation was incompatible with his right to respect for private life under Article 8 of the European Convention on Human Rights.
The last time the notification requirements under the 2003 Act came under attack, the Supreme court held that they were capable of causing significant interference with the Article 8 rights of an offender on the register (R (F)(a Child)) v The Secretary of State for the Home Department  UKSC 17) – see our post on that case and its consequences.
The Home Secretary subsequently amended the Act to provide for a review of the indefinite notification requirements; under s.91B an offender in the position of the claimant became entitled to seek a review of the notification requirements 15 years after the date on which he was first required to notify. That amendment was not currently relevant for the claimant.
After public consultation the Secretary of State introduced the regulation requiring disclosure of bank details, in order to “significantly enhance the ability of the police to promptly trace an individual who failed to comply with notification requirements”. However, since it had been established that notification requirements under the Act engaged the Article 8 rights of the individual on the Register, it was incumbent on the government to show that such a measure would achieve the policy aim that it aspired to achieve and would not simply act as a penalty on the offender.
The information about the offenders’ bank accounts, credit and debit cards is securely held and the possession by the police and other authorities of this information does not entitle them to examine the details of the bank account or credit card transactions. Moreover the details about credit cards do not include the security code so no one is able to avail themselves of this information. The Court therefore considered that though this did amount to an interference with the claimant’s privacy, it was not as significant as other notification requirements. It was of importance to note that access to bank accounts and debit and credit card transactions is not ordinarily permitted without the intervention of a court order.
But the essence of the dispute between the claimant and the Secretary of State turned upon the question of how valuable these particular notification requirements were in achieving the legitimate aim of public protection. Whilst the claimant accepted that the provision of card details would enable the police to trace an offender who had moved without notifying them of his new address, they had other statutory powers for obtaining similar information from bank and credit and debit card institutions.
The Court found that these measures were not inappropriate or disproportionate in relation to their aim – the ability to trace an offender quickly, to guard against the risk of an offender using another identity or to have a means of obtaining quick access to a credit card account to investigate offences in relation to indecent images. The other avenue open to the police, by applying for a court order to obtain information from banks, would be time consuming and expensive. Furthermore, if the offender had changed the name under which he operated the account, the difficulties facing the police would be more considerable:
By having details of the bank or other institution at which the offender held an account, the police would quickly be able to trace, by seeking appropriate orders. Any subsequent change of identity could be discovered by the well tested route of “following the money”.
Since it was satisfied that satisfied that the Regulations are not incompatible with the Convention, the Court declined to make a declaration of incompatibility.
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Besides the annual notification requirements how would the police become aware of any other failure to notify? eg surely someone who failed to comply with the notification requirements would not be averse to additionally not complying with them in relation to disclosure of every bank account they held and so they would open one or more furtively or use money sourced elsewhere if they wished to disappear. Also where is the evidence that failure to notify is a widespread problem?
A good judgment and the right result.
But wait for another case involving a joint account – with the wife or the business partner as the claimant. That might well go the other way.
And I notice with interest that if the offender – or that should be ex-offender – incorporates a company its account will not be covered. Only unincorporated associations are. Which is as it should be; a company is another person in law and is not the offender. But nowadays one person can form a company – with unlimited liability if he chooses – which drives a coach and horses through the whole scheme, doesn’t it?
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