Category: Article 8 | Right to Privacy / Family

Full internet ban for sex offenders ruled unlawful

12 August 2011 by Maria Roche

Regina v Smith & Others [2011] EWCA Crim 1772  Read Judgment

UPDATED NOVEMBER 2013 | In a detailed judgment, the Court of Appeal has emphasised the importance of a sentencing court considering whether making a Sexual Offences Prevention Order is necessary and, if so, tightly drafting its terms to be proportionate and not oppressive. 

The Court of Appeal (Criminal Division) also made clear that a total ban on internet use would always be disproportionate. It considered four cases in which the terms of the Sexual Offences Prevention Order  [‘SOPO’] were challenged by the Appellants, none of whom had been charged with offences involving physical sexual contact.

The powers of the Court in relation to SOPOs are contained in ss. 104 -113 of the Sexual Offences Act 2003 [‘SOA 2003’].   A SOPO contains specific prohibitions designed to protect the public from serious sexual harm and remains in effect for the period specified in the order.  The order prohibits the offender from doing anything contained in the order and accordingly they contain only restrictions, but no affirmative duties.   Breach of any of the restrictions is a criminal offence carrying up to five years’ imprisonment and a SOPO may be in place for many years.  As such, a SOPO could have a draconian effect on an offender for a substantial period of time.

Principles

When may a Court grant a SOPO?

The Court noted that whist a SOPO was a valuable tool in the control of sexual offending, as had been noted in R v R & C [2010] EWCA Crim 907, they were often too hastily and inadequately drafted and provided at a late stage in the sentencing process.    Whilst the SOPO offered a flexibility in drafting, the court warned that:

The flexibility of the order, however, must not lead draftsmen to an inventiveness which stores up trouble for the future. It will do this if it creates a provision which is, or will become unworkable.That may be because it is too vague or because it potentially conflicts with other rules applicable to the defendant, or simply because it imposes an impermissible level of restriction on the ordinary activities of life. The SOPO must meet the twin tests of necessity and clarity. The test of necessity brings with it the subtest of proportionality.”

The Court reminded future sentencing courts that an SOPO may only be made under section 104(1) if the court is:

…satisfied that it is necessary to make such an order for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant.”

Serious sexual harm differs from sexual harm so a SOPO may not be used to prohibit unusual, or even socially unacceptable, sexual behaviour unless it is likely to lead to the commission of offences set out in Schedule 3 of SOA.  The risk of such serious sexual harm must real and not remote.

Further, clarity is important, not only for the offender but also for those who must deal with him in real life and those who must enforce the Order and to avoid the real risk of unintentional breach.

What must a Court consider when making a SOPO?

The Court reiterated that the three questions identified by the Court of Appeal in  R v Mortimer [2010] EWCA Crim 1303 must be addressed when making a SOPO:

1. Is the making of an order necessary to protect from serious sexual harm through the commission of scheduled offences ?
2. If some order is necessary, are the terms proposed nevertheless oppressive?
3. Overall are the terms proportionate?

Interaction with other sentencing regimes:

The Court also reminded sentencing courts that when considering the imposition of SOPOs,  a defendant convicted of sexual offences is likely to be subject to at least three other relevant regimes. The statutory test of necessity is not met if a SOPO merely duplicates such a regime. A SOPO must not interfere with such a regime. The following regimes must be considered:

1. The sex offender notification rules;
2. Disqualification from working with children; and
3. Licence on release from prison.

Additionally, the Court considered that the usual rule ought to be that an indeterminate sentence needs no SOPO, at least unless there is some very unusual feature which means that such an order could add something useful and did not run the risk of undesirably tying the hands of the offender managers later.  The prevention of further offences should be left to the fixing of licence conditions as part of the indefinite sentence.

Further, it would not normally be a proper use of the power to impose a SOPO to use it to extend notification requirements beyond the period prescribed by S.82 of SOA 2003.  It does not follow, however, that the duration of a SOPO ought generally to be the same as the duration of notification requirements. Although the SOPO must operate in tandem, notification requirements and the conditions of a SOPO are different. The first require positive action by the defendant, who must report his movements to the police. The second prohibit him from doing specified things. Ordinarily there ought to be little or no overlap between them.  There is therefore no objection for an SOPO to extend beyond the notification requirements and it is also permissible in law for the SOPO to run for less than an indefinite period even when the notification requirements endure forever.

Extent of the SOPO:  Computer Use and Internet Access

The court considered the difficult question of limiting access to computer use in light of the “explosion of everyday internet use by a very large proportion of the public”.   The Court noted that a blanket ban on internet access was impermissible as:

It is disproportionate because it restricts the defendant in the use of what is nowadays an essential part of everyday living for a large proportion of the public, as well as a requirement of much employment. Before the creation of the internet, if a defendant kept books of pictures of child pornography it would not have occurred to anyone to ban him from possession of all printed material. The internet is a modern equivalent.”

The Court went on to consider the formula in  R v Hemsley [2010] EWCA Crim 225, which restricts internet use to “job search, study, work, lawful recreation and purchases”.  It considered that whilst such a formula has its attractions, it suffered from the same flaw, albeit less obviously, because it did not reflect modern internet usage or provide for future technological development:

Even today, the legitimate use of the internet extends beyond these spheres of activity. Such a provision in a SOPO would, it seems, prevent a defendant from looking up the weather forecast, from planning a journey by accessing a map, from reading the news, from sending the electricity board his meter reading, from conducting his banking across the web unless paying charges for his account, and indeed from sending or receiving Email via the web, at least unless a strained meaning is given to ‘lawful recreation’. The difficulties of defining the limits of that last expression seem to us another reason for avoiding this formulation. More, the speed of expansion of applications of the internet is such that it is simply impossible to predict what developments there will be within the foreseeable lifespan of a great many SOPOs, which would unexpectedly and unnecessarily, and therefore wrongly, be found to be prohibited.

Some courts have been attracted to a prohibition upon the possession of any computer or other device giving access to the internet without notification to the local police. Most defendants, like most people generally, will have some devices with internet access, so such a requirement woud be both onerous and add little of any value.

The court considered that of all the formulas so far devised:

the one which seems to us most likely to be effective is the one requiring the preservation of readable internet history coupled with submission to inspection on request… if the defendant were to deny the officers sight of his computer, either in his home or by surrendering it to them, he would be in breach.

Where the risk is not simply of downloading pornography but consists of or includes the use of chatlines or similar networks to groom young people for sexual purposes, it may well be appropriate to include a prohibition on communicating via the internet with any young person known or believed to be under the age of 16 … it may be necessary to prohibit altogether the use of social networking sites or other forms of chatline or chatroom.”

Extent of the SOPO:  Personal Contact with Children

The Court considered that care must be taken in considering whether prohibitions on contact with children are “really necessary”.

The Court noted that any provision must be tailored to the necessity of preventing sexual offending causing serious harm to others.  The majority of such offences occur only when a child is under the age of 16 so, generally, a SOPO should only relate to contact with children under that age.  Only if there was a genuine risk of offences under ss 16-19 of SOA 2003where a defendant stands in a position of trust or family offences under ss 25 – 26 of SOA 2003, would prohibitions on contact with children under the age of 18 be justified.

In cases where it is “really necessary” to impose a prohibition on contact with children (of whichever age,  it is essential to include a saving for incidental contact such as is inherent in everyday life.

Further, if there was no risk that offences within a family may be committed then

it is both unnecessary and an infringement of the children’s entitlement to family life to impose restrictions which extend to them. Even if there is a history of abuse within the family, any order ought ordinarily to be subject to any order made in family proceedings for the very good reason that part of the family court process may, if it is justified, involve carefully supervised rehabilitation of parent and child”

SOPOs which prohibit the defendant from activities which are likely to bring him into contact with children must be justified as required beyond the restrictions placed upon the defendant by the Independent Safeguarding Authority under the Safeguarding Vulnerable Groups Act 2006.

Procedure:

Procedurally,  it is essential that there is a written draft of the SOPO that can be properly considered in advance of the sentencing hearing. The normal requirement should be that it is served on the court and on the defendant before such a hearing and the Court suggested not less than two clear days before but in any event not at the hearing.

Applying the principles

The Court went on to consider the application of these principles in respect of the four appellants.

In respect of Wayne Clarke, the Court substituted a new indefinite SOPO which removed the blanket ban in internet use, the notification requirements, which prohibited social contact with boys when his offences had been entirely against girls and removed the prohibition of touching underage children as such an act would, in any event, be an offence.

In respect of Bryan Hall, the restriction on living with ‘any person under the age of 18′ was moderated to ‘any female under the age of 18 unless with the express approval of Social Services for the area’; the restriction on any unsupervised contact with a person under the age of 18 was moderated to “any female under the age of 18″ such as is “inadvertent and not reasonably avoidable in the course of lawful daily life or with the consent of the child’s parent or guardian (who has knowledge of his convictions) and with the express approval of the Social Services for the area’.  The restriction of being in possession of a computer/i-phone or mobile without notifying the monitoring police was removed.

In respect of Steven Smith, the SOPO was quashed as he was given an indeterminate sentence for public protection.  Consequently,  those considering his case would remain responsible for the terms and conditions under which he lives, there is nothing useful to which a SOPO could add.

In respect of the 4th Appellant [UPDATE, January 2014 – his conviction was quashed in March 2013] , although the criminal activity for which he was convicted was “as about as low a level as it is possible to encounter in an offence for child pornography”,a SOPO was found to be necessary due to the appellant’s admitted strong sexual attraction to boys in the age range of 10 -15. The court admired the effort of the judge at first instance in attempting to render the internet provisions workable.  However, as that appellant’s life “revolved around the use of computers and the internet” the terms of the SOPO were too widely drawn and “an order requiring a readable history and submission to inspection will better protect against the risk”.

Comment

It is clear those drafting SOPOs in future will need to look very closely at the nature and circumstances of the offences with which the defendant is charged and convicted – for example, the gender of the victims or potential victims of the offender and the risk of progression from viewing offences to contact offences.  SOPOs will need to be tightly drafted after considerable thought.

Questions arise, however, regarding the Court’s rejection of the Hemsley formula.  It is not, for instance, clear why “checking the weather forecast … planning a journey by accessing a map … reading the news … sending the electricity board his meter reading … conducting his banking across the web unless paying charges for his account, and indeed from sending or receiving Email via the web” cannot amount to ‘lawful recreation‘ without  strained construction of the phrase.

It is difficult to see how, when recordable internet histories can be turned on and off for short periods of time using ‘private browsing’ facilities, the terms of the Court’s proposed term that “an order requiring a readable history” can be effectively policed.   The proposed terms do not seem to prevent an offender from using a device belonging to another person (or in an internet cafe), provided it has the capacity to retain and display an internet history.  Locating such a device would be a further barrier for any police investigation.  Additionally, although the SOPO made by the Court prevents the offender “deleting such history”, it is not clear that the offender would be in breach of the SOPO if another person deleted the history.

Although this was a comprehensive review by the Court, it may be that further consideration of the terms of SOPOs, particularly in regard to internet usage, becomes necessary.

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Will publishing photos of alleged rioters infringe their human rights?

11 August 2011 by Matthew Flinn

In the wake of the recent violence in cities across England, the police have been releasing photographs of individuals in an appeal to the public for assistance in identifying them and bringing them to justice.

As the crisis has developed, politicians and police spokespeople have professed a strong intention to ensure that all the rioters and looters face the consequences of their actions. As of this morning, in London alone 888 people have been arrested and 371 people have been charged with offences relating to their involvement in the riots, and courts in London, Manchester and Solihull have remained open through the night in order to process these cases as swiftly as possible. Yet with the number of people involved likely to be in the thousands, there are many more who remain unidentified.

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After Winterbourne View: the untapped potential of Article 8 – Lucy Series

1 August 2011 by Lucy Series

Since BBC Panorama revealed shocking abuse of adults with learning disabilities in a private hospital run by Castlebeck Care Ltd, the care sector has engaged in widespread soul searching. 

Paul Burstow instructed the Care Quality Commission (CQC) to carry out a national audit of all hospital services for adults with learning disabilities.  Similar national audits were conducted following previous scandals relating to widespread abuse of adults with learning disabilities in Cornwall (here and here).  In the CQC’s preliminary report on other Castlebeck services they expressed serious concerns about compliance with essential standards of quality and safety.

The human rights issue that stand out most powerfully in these reports is the widespread interference with patients’ autonomy and privacy.  Take these finding from the report on Arden Vale, for instance:

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Family courts guide to Media Access & Reporting

29 July 2011 by Adam Wagner

Updated | The family courts in conjunction with the Judicial College and the Society of Editors have has published a Guide to Media Access and Reporting. It has been written by two barristers, Adam Wolanski and Kate Wilson.

It seeks to address “the tension between concerns about “secret justice” and legitimate expectations of privacy and confidentiality for the family (update – read Lucy Series’ analysis with a focus on Court of Protection cases).

This is interesting and, on a quick glance through the detailed document, useful. Family judges have been critical of journalists’ reporting of sensitive cases recently, and this guide is clearly an attempt to guide judges on what can and can not be reported, and journalists on how to report responsibly. The guide would benefit from a contents page and executive summary, but aside from that it will no doubt prove useful to practitioners and journalists.

One line I am predictably fond of: “Although it remains a matter for the judge, senior members of the judiciary have encouraged the making of public judgments”

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Analysis – Daily Mirror and The Sun in contempt over Jo Yeates murder case

29 July 2011 by Adam Wagner

Her Majesty’s Attorney-General Claimant – and – (1) MGN Limited Defendants (2) News Group Newspapers Limited – Read judgment

The High Court has found that the Daily Mirror and The Sun were in breach of the Contempt of Court Act 1981 (1981 Act) in relation to their reporting of the Jo Yeates murder case. The court was strongly critical of the “vilification” of a man who was arrested but quickly released without charge.

The proceedings were in relation to Christopher Jefferies, a school teacher who was arrested early on in the investigation. The court fined the Daily Mirror £50,000 and The Sun £18,000.

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Public purse stays closed for morbidly obese man

28 July 2011 by Adam Wagner

Condliff, R (on the application of) v North Staffordshire Primary Care Trust [2011] EWCA Civ 910 – Read judgment

A morbidly obese man has lost his appeal against his local Primary Care Trust’s (PCT’s) refusal to fund his anti-obesity surgery. The Court of Appeal ruled that the PCT had no obligation under Article 8 of the European Convention on Human Rights to consider social or non-clinical factors when deciding whether to grant a request for exceptional funding.

In his discussion of the case, Lord Justice Toulson began by saying that “Human rights law is sometimes in danger of becoming over complicated“. Underlying this point is the fact that it is already complicated enough. This is a good example: how could a court find that this case, which clearly involves the dignity and family life of a man whose life is difficult and miserable, not engage the protection of human rights law? I will try to explain.

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Can “family ties” in Article 8 terms arise out of mere financial dependency?

25 July 2011 by Rosalind English

A A O v Entry Clearance Officer [2011] EWCA Civ 840 – read judgment

1 Crown Office Row’s Sarabjit Singh appeared for the Respondent in this case. He is not the writer of this post.

“No”, seems to be the Court of Appeal’s answer to the question posed by the heading above; indeed Rix LJ goes as far to say that “the provision of such money can be as much an insulation against family life as evidence of it.”

In this case the appellant, a 69 year old Somalian national who had been living in Kenya,  appealed against the respondent entry clearance officer’s refusal to grant her leave to enter the UK to join her daughter. The daughter, who sponsored this claim, had been granted British citizenship. She had seven children and was living on benefits, out of which she sent a monthly contribution to her mother.  The appellant, who was said to be in poor health and dependent on a neighbour for daily care, had applied for indefinite leave to join her daughter as a relative and financial dependant of a person settled in the UK under the Immigration Rules r.317. The entry clearance officer refused her request, having found that she did not satisfy r.317(iva) in respect of her ability to be maintained without recourse to public funds and that any interference with her rights under Article 8 of the European Convention on Human Rights was justified and proportionate for the purpose of maintaining effective immigration control.
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Terrorism off the agenda, for now

20 July 2011 by Adam Wagner

Updated |The UK public only really worries about terrorism after an attack or a credible threat of one. Certainly, at the moment, it would take a serious threat to knock the Shakespearean drama of phone-hacking off the front pages. Nevertheless, the government and others continue their efforts to contain the threat, and it is perhaps a sign of the strategy’s success that we are not unduly worried by it.

Part of that strategy is that under terrorism law the secretary of state must appoint a person to review the operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2000, and in particular proscription of organisations, stop and search powers, arrest and detention powers and prosecutions for terrorist offences.  To that end, the new Independent Reviewer of Terrorism Legislation, David Anderson QC, has released his first annual report.

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Was it human rights wot won the phone hacking scandal?

12 July 2011 by Adam Wagner

2011 may be remembered as the year of Article 8. The public may not realise it, but the two major news stories of this year have had at their core the 8th article of the European Convention on Human Rights, the right to privacy and family life. And without this controversial law, the phone-hacking scandal may never have been exposed.

First came the super-injunctions scandal, in which the public, egged on by the popular press, became enraged at sportsmen using expensive privacy injunctions to keep details of their alleged bad behaviour out of the news. That scandal has now been replaced by a much bigger one, relating to illegal phone hacking. The affair has already led to the demise of the News of the World.

As the human rights organisation Liberty have pointed out, the newspaper was never a fan of New Labour’s Human Rights Act. Amongst other things, it fought an expensive and partially successful privacy battle against Max Mosley over claims that he slept with prostitutes in a “sick Nazi orgy“. It has always been suspected that the tabloid press’s almost universal antipathy towards the 1998 Act, which in theory at least should be popular as it protects citizens against nasty state intrusion, was inspired by the fear that the privacy rights it bolstered, despite the competing right to freedom of expression, would prevent them doing their jobs. And now, with some irony, it is a tabloid newspaper and not a public authority which may represent the 1998 Act’s most high-profile scalp.

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Will the Sex Offenders’ Register “Review Mechanism” breach human rights law?

12 July 2011 by Graeme Hall

Updated | In 2010, the Supreme Court ruled that a mechanism should be put in place to review whether convicted sex offenders should remain liable after their release from prison to notify the police of where they live or plans to travel abroad. In June 2011, the government published draft legislation to “ensure that strict rules are put in place for considering whether individuals should ever be removed from the register.” However, it is possible that the “strict rules” leave the government vulnerable to further legal challenges.

To recap (see also Adam Wagner’s post), section 82 of the Sexual Offences Act 2003 places those convicted of a sexual offence and imprisoned for at least 30 months under a life-long obligation once released from prison to notify the police when changing address and travelling abroad (“the notification requirements”). The Supreme Court ruled that the notification requirements violated sex offenders’ Article 8 rights to a private life and issued a declaration of incompatibility.

by Graeme Hall

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Deportation, secrecy and knowing the case against you

1 July 2011 by Matthew Flinn

IR (Sri Lanka) & Ors v Secretary of State for the Home Department [2011] EWCA Civ 704 – Read Judgment

The Court of Appeal has rejected an argument that Article 8 of the European Convention of Rights (ECHR), the right to private and family life,  requires that those challenging deportation and exclusion decisions on grounds of national security in proceedings before the Special Immigration Appeals Commission (SIAC) have to be given sufficient disclosure of the case against them to enable them to effectively instruct the special advocate representing their interests.

In his book “The Rule of Law”, the late Lord Tom Bingham enumerated a number of sub-rules to give content to that cardinal, oft-cited but rather vague constitutional principle. Unsurprisingly, one such sub-rule was that adjudicative procedures provided by the state should be fair, an idea which found expression in documents as old Magna Carta. In turn, this entails that, as Lord Mustill stated in In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, “each party to a judicial process should have an opportunity to answer by evidence and argument any adverse material which the tribunal make take into account when forming its opinion”.

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A young autistic man, Magna Carta, human rights and unlawful detention

16 June 2011 by Alasdair Henderson

Neary and his father

London Borough of Hillingdon v. Steven Neary [2011] EWHC 1377 (COP) – read judgment here.

The Court of Protection (“COP”) emphatically ruled last week that a local authority unlawfully detained a young man with autism and learning difficulties for almost an entire year, breaching his right to respect for family life as a result. 

Take a 21-year-old disabled person, the Mental Capacity Act 2005, a devoted father and an adversarial social care department. Mix in centuries-old principles laid down in Magna Carta, recent case-law on Article 5 and Article 8 of the ECHR, and some tireless campaigning by legal bloggers. The result? A landmark decision on the use of deprivation of liberty (“DOL”) authorisations in respect of individuals without full legal and mental capacity.

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When to prosecute children for sexual abuse

15 June 2011 by Matthew Flinn

R (on the application of E and Ors) v The Director of Public Prosecutions [2011] EWHC 1465 (Admin) – Read Judgment

In a case involving rather distressing facts, the High Court has quashed a decision of the Crown Prosecution Service to prosecute a 14-year-old girl (identified only as “E”) for the sexual abuse of her younger siblings.

On 26 January 2010 the Child Exploitation and Online Protection Centre discovered a video on the internet, in which E appeared to be sexually abusing her two younger sisters. The acts portrayed allegedly occurred between January and November 2001, when E was aged 12, and her sisters were aged 2 and 3.

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Abduction and the child’s “best interests” – analysis

14 June 2011 by Rosalind English

E (Children) FC [2011] UKSC 27 – read judgment ; see previous post for summary

This case shows some of the difficulties thrown up by the interesting tension between the primacy of children’s interests implied by Article 8 of the European Convention on Human Rights and the controls on child abduction exerted by the 1980 Hague Convention.

The Human Rights Convention, in requiring that states ensure respect for family life,  protects first and foremost the rights of the child. But of course the Hague Convention has different priorities. The first aim of that instrument is to deter either parent from taking the law into their own hands and removing themselves and their children to another jurisdiction. If abduction does take place, the next object of the Convention is to restore the children as soon as possible to their home country, so that any dispute can be determined there, since the parent left behind is the wronged party, and should not be put to the trouble and expense of coming to the requested state in order to participate in the resolution of factual issues here. Article 12 therefore requires a requested state to return a child forthwith to its country of habitual residence if it has been wrongfully removed in breach of rights of custody. Article 13(b) mitigates that obligation if there is a “grave risk” of “physical or psychological harm.”
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News: Joshua Rozenberg Interviews Mr Justice Eady

14 June 2011 by Guest Contributor

The latest issue of the Index on Censorship magazine is entitled “Privacy is Dead! Long live privacy” and includes an interview with Mr Justice Eady, conducted by the veteran legal commentator Joshua Rozenberg entitled “Balancing Acts“.  

This is a rare example of an interview with a serving judge.  It was conducted on 11 April 2011 – before heat was turned up in the “Superinjunction Spring”.   Despite the worst efforts of the “Sunday Times” – of which more in a moment – the interview contains few surprises for those who have taken the trouble to read Mr Justice Eady’s judgments (and lectures) on the subject of privacy.

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