Disproportionate Registration?
| Published date | 01 June 2009 |
| Author | Alisdair A. Gillespie |
| Date | 01 June 2009 |
| DOI | 10.1350/jcla.2009.73.3.565 |
| Subject Matter | Divisional Court |
Disproportionate Registration?
R (on the application of F and Thompson) v Secretary of State for the Home
Department [2008] EWHC 3170 (Admin)
Keywords
Sex offender; Notification requirements; Human rights;
Proportionality; Indefinite duration
F, now aged 16, was 11 years old when he committed two offences of
rape of a child under 13 and three offences of sexual activity with a child
under 13. He was sentenced to 30 months’ detention. Thompson was
sentenced to five years’ imprisonment in 1996 for two counts of in-
decent assault on his daughter.
As both F and Thompson were given a custodial sentence of at least
30 months’ duration for a relevant sexual offence they are subject to the
notification requirements contained within Part 2 of the Sexual Of-
fences Act 2003 indefinitely.
F sought to argue that being subject to the notification requirements
indefinitely was a disproportionate interference with his rights under
Article 8 of the European Convention on Human Rights. He also sought
to argue that it was contrary to European law in that it acts as a travel
restriction prohibited under Directive 2004/38/EC (which precludes the
use of exit visas or equivalent formalities on inter alia EU citizens wishing
to travel within the EU). Thompson argued that being subject to the
notification requirements indefinitely without any right to petition for
their removal was a disproportionate interference with his rights under
Article 8.
HELD, GRANTING A DECLARATION OF INCOMPATIBILITY UNDER THE
HUMAN RIGHTS ACT 1998, the fact that a person subject to the notifica-
tion requirements must notify the police of his or her intention to leave
the UK for a period of three or more days was not the equivalent to an
exit visa and so it could not be said to violate the EC Directive.
Being subject to the notification requirements for an indefinite dura-
tion without possibility of review breaches Article 8. As a matter of
principle a person should be entitled to have the question of whether or
not the notification requirement continues to serve a legitimate purpose
determined. The absence of such determination is sufficient to make the
measures disproportionate and accordingly a breach of Article 8(1) of
the European Convention on Human Rights.
COMMENTARY
Notification requirements were first introduced by Part 1 of the Sex
Offenders Act 1997 and since that time have been the subject of a
number of challenges alleging a breach of human rights. This is the first
The Journal of Criminal Law (2009) 73 JCL...
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