Disproportionate Registration Revisited
| Date | 01 October 2009 |
| Published date | 01 October 2009 |
| DOI | 10.1350/jcla.2009.73.5.588 |
| Subject Matter | Court of Appeal (Civil Division) |
Court of Appeal (Civil Division)
Disproportionate Registration Revisited
R (on the application of F and Thompson) v Secretary of State for Justice
[2009] EWCA Civ 792
Keywords Sex offender; Notification requirements; Human rights; Pro-
portionality; Indefinite duration
F 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 indecent 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
indefinitely to the notification requirements contained within Part 2 of
the Sexual Offences Act 2003.
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 EU law in that it acts as 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.
The Divisional Court ([2008] EWHC 3170) held that the notification
requirements did not violate the EC Directive as it was not tantamount
to an exit visa. However, it held that being subject to the notification
requirements without the possibility of review was a disproportionate
interference with the right under Article 8 and made a declaration of
incompatibility in respect of s. 82 of the Sexual Offences Act 2003. The
Secretary of State for Justice appealed against the declaration of incom-
patibility and JF cross-appealed against the decision of the Divisional
Court to reject the argument relating to the EC Directive.
H
ELD
,
DISMISSING THE APPEAL AND THE CROSS
-
APPEAL
, the fact that a
person subject to the notification requirements must notify the police of
his 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.
As a matter of principle, an offender is entitled to have the question of
whether the notification requirements continue to serve a legitimate
purpose determined on a review. The absence of such a review renders
the notification requirements a disproportionate interference with the
right of an individual under Article 8(1) of the European Convention on
385The Journal of Criminal Law (2009) 73 JCL 385–388
doi:10.1350/jcla.2009.73.5.588
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