Sentencing – EC law – Foreign travel – Notification – Sex offenders

R (on the application of F) v Secretary of State for Justice: R (on the application of Angus Aubrey Thompson) v Secretary of State for Justice: DC (Lord Justice Latham, Mr Justice Underhill, Mr Justice Flaux): 19 December 2008

The claimants (F and T) sought, among other things, a declaration of incompatibility in respect of section 82 of the Sexual Offences Act 2003.

F had been sentenced to 30 months’ detention for sexual offences which he had committed when aged 11. T, an adult, had been sentenced to five years’ imprisonment for indecent assault. By reason of the nature of the offences and the length of their sentences, they were both subject to the notification requirements of part 2 of the 2003 act for an indefinite period as a result of the provisions of section 82. Sex offenders were subject to, among other things, travel notification requirements. The relevant statutory provisions required an offender who intended to leave the UK for a period of three days or longer to specify the date on which he would leave the UK, the country to which he would travel and his point of arrival in that country and, if more than one country, his point of arrival in each such additional country, the identity of any carrier or carriers he intended to use, details of his accommodation for his first night outside the UK, the date on which he intended to return and the point of arrival.

F argued that the travel notification requirements were unlawful in that they interfered with rights protected by article 4 of directive 2004/38. Both F and T argued that the effect of subjecting them to notification requirements indefinitely without the opportunity for review was a disproportionate interference with their rights under article 8 of the European Convention on Human Rights 1950.

Held: (1) The travel notification requirements were not a formality equivalent to an exit visa for the purposes of article 4 of the directive. An exit visa was based on the premise that the person in question needed permission to leave the country. A person subject to notification requirements did not need any permission to leave the country. The requirements imposed no restriction on his or her leaving the country. The only restriction that could be imposed would be a foreign travel order under section 114 of the 2003 act, which clearly would be a measure permitted by article 27 of the directive. The travel notification requirements were not therefore unlawful by virtue of being contrary to the provisions of the directive.

(2) As to F’s case, the courts had consistently approached the consideration of measures which were to be applied to children on the basis that the immaturity of a child offender had to be regarded as of prime importance. Further, while the analogy with sentences of detention during Her Majesty’s pleasure was not exact, the principle, namely that the measure imposed should reflect the fact that the offender was a child, had to apply to the notification requirements imposed on F. It was difficult to see how a lifelong requirement to register was proportionate. It might well be that any right of review should be tightly circumscribed in the public interest, both in relation to the burden and standard of proof and maybe in relation to the length of time that should pass before any such application could be made. It had been shown, however, that the absence of any such right of review amounted in the case of a young offender to a breach of article 8.

(3) As for T, the material before the court suggested that it might well be very difficult for an offender to establish that he no longer presented any risk of reoffending. However, it was difficult to see how it could be justifiable in article 8 terms to deny a person who believed himself to be in that position an opportunity to seek to establish it. There would necessarily have to be a debate about what an offender should have to prove in order to enable him to be discharged from the notification requirements and when he should be entitled to make any necessary application. However, as a matter of principle, an offender was entitled to have the question of whether the notification requirement continued to serve a legitimate purpose determined, Re Gallagher’s Application for Judicial Review, [2003] NIQB 26 considered.

(4) In the circumstances, a declaration of incompatibility would be made.

Declaration of incompatibility made.

Hugh Southey (instructed by Stephensons) for the first claimant; Pete Weatherby (instructed by Irwin Mitchell) for the second claimant; Steven Kovats (instructed by the Treasury Solicitor) for the defendant.