M, R (on the application of) v Hampshire Constabulary and another (18 December 2014)  EWCA Civ 1651 – read judgment
The law governing the monitoring of sex offenders, allowing police officers to visit the homes of registered offenders, did not constitute an unlawful interference with the offenders’ privacy rights under Article 8 of the ECHR.
This was an appeal against a decision by the appellant (M) against a decision by Hallett LJ and Collins J in the Administrative Court that the practice of police officers making visits to the homes of registered sex offenders for the purpose of monitoring their behaviour did not violate the Convention.
In 1997 M was convicted of a number of serious sexual offences in respect of which he was sentenced to four years’ imprisonment. As a result he became obliged to comply with the notification requirements of Part 2 of the Sexual Offences Act 2003 for life. The Criminal Justice Act 2003 s.325 authorised the police to visit offenders for the purpose of monitoring their behaviour, and the appellant was visited at home on several occasions. Although M let them in, he claimed that he did not truly consent to their entry, but he claimed that his will had been overborne by the knowledge that, if he refused to let them in, they would be able to obtain a warrant under the 2003 Act.
In September 2011 M began proceedings for judicial review seeking, among other things, declarations that the monitoring powers could be used only if there was a reasonable suspicion of offending, that a warrant could be sought under that section only if the person whose house was to be searched was given notice of the proceedings and (alternatively) that the relevant provision (section 96B) was incompatible with Article 8 of the ECHR. He also claimed damages in respect of the informal visits to his home on the grounds that they involved a breach of his Convention rights. In the grounds of claim it was said that the issues to which the claim gave rise were (i) whether the legislation was to be read subject to an implicit restriction requiring reasonable suspicion that an offence has been or is likely to be committed, (ii) whether the legislation was incompatible with Article 7 of the Convention (because in the appellant’s case it imposed more onerous conditions on him than those which could have been imposed at the time of his conviction and so amounts to a retrospective penalty) and (iii) whether the appellant had a right under articles 8 or 6 of the Convention to make representations before any warrant was sought to enter his home.
The court dismissed all claims, concluding that s.96B was Convention-compliant and that M had consented to the police visits.
In this appeal, M submitted that while s.96B was not itself incompatible with Article 8, the police visits constituted an unlawful interference with his privacy rights because the existence of the power to obtain a warrant if entry was refused vitiated his consent. He also contended that the absence of any procedure for reviewing the application of s.96B separately from the notification requirements involved a disproportionate and unlawful interference with Article 8.
The appeal was dismissed.
Reasoning behind the judgment
It has long been established that the police have no right at common law to enter and search a person’s home against his will, unless they have a warrant or statutory authority. But a person can consent to acts which would otherwise involve an infringement of his rights, whether at common law or under Article 8 of the Convention (Millar v Dickson  UKPC D4). Whether a person had waived his right to refuse entry would depend on the facts. In one case the offender may be happy to co-operate with the police and therefore willing to allow them into his home regardless of section 96B; in another he may consent only because he does not wish to give grounds for an application under the section and in such a case there may be a question whether he acted voluntarily. It therefore followed that it was not possible to accept M’s broad proposition that in all cases section 96B robs the offender of the ability to make a free and informed decision. Whilst the knowledge that the police could apply for a warrant if refused entry might influence an offender’s thinking, it did not necessarily follow that his will had been overborne so as to render his apparent consent illusory.
As the court below pointed out, an offender’s failure to allow entry would not inevitably lead to the issue of a warrant. A senior officer had to apply to the court, and it was implicit that the application would have to be supported by evidence (R (on the application of G) v Commissioner of Police of the Metropolis  EWHC 3331 (Admin)). There was no reason to suppose that the magistrates would not scrutinise applications with appropriate care. Therefore, if an offender allowed the police to enter his home without objection he would almost always have waived his right to refuse entry.
The police do not need statutory authority to call on citizens to seek their co-operation or assistance; in that respect they enjoy the same rights as other people. If an offender considers that their visits are too frequent or that the police are acting unreasonably for some other reason, he has other remedies at his disposal.
An offender was not in a position analogous to that of a person who applied for a criminal record certificate where required by an employer. The case of R (on the application of L) v Commissioner of Police of the Metropolis  UKSC 3 was concerned principally with the systematic collection, storage and processing of personal data. The decision could not be treated as authority for the proposition that consent can never oust the protection given by Article 8. It was concerned with a problem “far removed” from the present case. Moreover, it could not be suggested that it was unlawful for the police to visit an offender’s home merely because no prior arrangement had been made. Article 8 might be infringed if the police visited with unreasonable frequency and in circumstances liable to result in the offender’s convictions being disclosed to friends or neighbours, but that issue did not arise in M’s case. Police made visits to sex offenders in order to protect vulnerable members of society from harm.
If the visits engaged Article 8 at all, they were proportionate to their purpose and satisfied the criteria in Article 8(2). Parliament required arrangements to be in place for carrying out that purpose, and by enacting s.96B it recognised that visiting offenders in their homes was an effective way of achieving it. It would seriously undermine the efficacy of the arrangements if the police had to inform an offender or seek a magistrate’s approval before making a visit. A balance had to be struck between the rights of vulnerable people and the rights of offenders, and the state enjoyed a considerable margin of appreciation. The practice of making unannounced visits to offenders’ homes seeking entry by consent was proportionate and did not involve an unlawful interference with Article 8.
When Parliament enacted s.96B, it must have intended that the notification requirements and the provisions for assessing continuing risk should be viewed as part of a single scheme for the protection of vulnerable persons. That scheme was not disproportionate because it did not provide for exemption from one constituent part. In Moore-Bick LJ’s view,
Viewed as a whole the scheme provides for notification of certain matters coupled with monitoring of behaviour by means of informal visits which to a large extent depend for their efficacy on the co-operation of the offender. That part is reinforced by a statutory provision for compulsory searches, subject to judicial oversight and safeguards which are capable of ensuring that the power is used only when necessary and in a proportionate way.
Whilst the monitoring element of the scheme was reinforced by provision for compulsory searches, that was subject to judicial oversight and safeguards which ensured that the power was used proportionately and only when necessary.
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