F & Anor, R (on the application of) v Secretary of State for the Home Department  UKSC 17 (21 April 2010)
This case concerned lifetime reporting requirements for sex offenders. The Supreme Court of the United Kingdom decided that while the requirements themselves were reasonable, imposing them without any possibility of review was not proportionate as it was impossible to rule out the possibility that some offenders would eventually be able to demonstrate they no longer posed a risk of reoffending. The Court upheld a declaration of incompatibility under the Human Rights Act 1998 (UK).
This decision was an appeal relating to the Sexual Offences Act 2003 (UK), according to which sexual offenders sentenced to 30 months’ prison or more are automatically required to keep the police notified of where they are living and of travel abroad, by attending in person at a police station. This is a lifetime reporting requirement. Further, there is no right to apply for review of the notification requirements.
The two appellants had been convicted of sexual offences and were each sentenced to at least 30 months’ imprisonment, making them automatically subject to the lifetime reporting requirements. One of the appellants was 11 years old at the time of his offence.
The claimants were not able to bring proceedings under the Human Rights Act 1998 (UK) because such claims were precluded by a section of that Act.
Instead, an appeal was brought on the basis of art 8 of the European Convention on Human Rights, which states that interference by a public authority with a person’s right to respect for his private and family life must be in accordance with the law and necessary in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others.
Proportionality of the requirements
The Court observed that the reporting requirements would obviously interfere with the offender’s right to privacy. In particular, the Court considered that the necessity of going repeatedly to a police station to provide information about one’s address and movements would create a risk that that information would be overheard by a third party, or that third parties might become aware of the reason for the reporting. The previous version of the Act required only written notifications and there was no explanation for the legislative change.
However the Court also recognised the importance of the legislative objective behind the requirements (i.e. the prevention of reoffending). The automatic nature of the requirements was held to be a necessary and reasonable element of the scheme, and the indefinite duration of the requirements did not render the scheme disproportionate.
Rather, the debate in this appeal was about the necessity and utility of imposing the notification requirements for life without any possibility of review. The issue was that some people subjected to the lifetime notification requirement might at some point be able to demonstrate that they no longer pose a significant risk of committing further sexual offences, and in this case the requirements would be an unjustified interference with the offenders’ rights under art 8.
Possibility of carrying out a reliable risk assessment
The Court was therefore required to address the question of whether there are in fact offenders who would be able to clearly demonstrate that they present no risk of reoffending, or whether all sexual offenders by definition carry a material risk of reoffending.
On the question of whether reliable risk assessment can be carried out on offenders, there was some evidence about the proportion of sexual offenders who reoffend and the time period over which they reoffend. However, there was no evidence adduced about whether it was possible to identify which individuals posed more or less risk.
As a result of this factual uncertainty, the Court held that it was not proportionate to provide for no possibility of review of the lifelong reporting requirements. In the Court’s opinion, there would be circumstances where a tribunal could reliably conclude that the risk of an individual reoffending could be discounted to the extent that continued notification requirements would not be necessary.
In addition, the Court noted that numerous other jurisdictions have registration requirements for sexual offenders which make provision for review. The Court held that this does not suggest that any such review would be impracticable.
The Court upheld the declaration of incompatibility made by the Divisional Court at first instance.
The Court was careful to note that there was no implication that, had the claimants had been entitled to a review of their notification requirements, their claims would have succeeded. The Court at first instance went to some lengths to indicate that it recognised that issues of sexual reoffending were of great concern to the public and that it was not putting the interests of offenders ahead of those of victims. The Supreme Court appears to have taken a similar stance in highlighting the practical implications of its decision.
Relevance to the Victorian Charter
This case may be relevant to the interpretation of s 13(a) of the Victorian Charter, particularly in relation to privacy, and to the limitation of human rights by law under s 7.
The legislation relating to sex offenders in Victoria is more flexible than that in the UK. In Victoria, while there are automatic lifetime reporting requirements for people found guilty of certain serious sex offences (see Sex Offenders Registration Act 2004 (Vic) s 34(c)), the law provides for reduced reporting periods for persons who were children at the time they committed an offence (s 35) and for suspension of orders by the Supreme Court if a person has not reoffended within 15 years and poses no risk to the sexual safety of the community (ss 39 and 40).
The decision is available at www.bailii.org/uk/cases/UKSC/2010/17.html.
Alex Bowen, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group