R (on the application of M) v Chief Constable of Hampshire Constabulary (Secretary of State for the Home Departmnet intervening)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Tomlinson,Lady Justice King |
| Judgment Date | 18 December 2014 |
| Neutral Citation | [2014] EWCA Civ 1651 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 December 2014 |
| Docket Number | Case No: C1/2013/0499 |
[2014] EWCA Civ 1651
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Lady Justice Hallett D.B.E. and Mr. Justice Collins
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Vice-President of the Court of Appeal, Civil Division
Lord Justice Tomlinson
and
Lady Justice King
Case No: C1/2013/0499
and
Mr. Hugh Southey Q.C. (instructed by Fulchers) for the appellant
Mr. Dijen Basu (instructed by Hampshire Police) for the respondent
Mr. Martin Chamberlain Q.C. (instructed by the Treasury Solicitor) for the intervener
Hearing date: 26 th November 2014
In 1997 the appellant, M, was convicted of a number of serious sexual offences in respect of which he was sentenced to four years' imprisonment. As a result he became obliged to comply with the notification requirements of Part 2 of the Sexual Offences Act 2003 for life.
The statutory framework
Section 325 of the Criminal Justice Act 2003 requires chief officers of police to establish arrangements for the purpose of assessing and managing the risks posed in their areas by sexual offenders subject to the notification requirements of Part 2 of the Sexual Offences Act. Multi-Agency Public Protection Arrangements, known as "MAPPA", have been established to discharge that obligation and detailed guidance on the implementation of those arrangements ("MAPPA Guidance") has been issued by the Secretary of State under section 325(8) of that Act. The central purpose of MAPPA is to monitor registered sexual offenders in order to detect any signs of renewed offending or preparations being made for further offending. In order to achieve that end MAPPA Guidance suggests that offenders should be visited in their homes at regular intervals, more or less frequently depending on the level of risk they are deemed to pose: low risk offenders once a year, medium risk offenders every six months, high risk offenders every three months and very high risk offenders every month. Guidance issued by the Association of Chief Police Officers suggests that, in order to avoid drawing attention to such visits, in all but exceptional circumstances they should be carried out discreetly by plain clothes officers in pairs using unmarked police vehicles.
In 2006 Parliament passed the Violent Crime Reduction Act which, by section 58, introduced into Part 2 of the Sexual Offences Act 2003 a new section 96B, which makes provision for the police to obtain warrants to enter and search the homes of those who are subject to the notification requirements. The material parts for present purposes provide as follows:
" 96B Power of entry and search of relevant offender's home address
(1) If on an application made by a senior police officer of the relevant force a justice of the peace is satisfied that the requirements in subsection (2) are met in relation to any premises, he may issue a warrant authorising a constable of that force–
(a) to enter the premises for the purpose of assessing the risks posed by the relevant offender to which the warrant relates; and
(b) to search the premises for that purpose.
(2) The requirements are—
(a) that the address of each set of premises specified in the application is an address falling within subsection (3);
(b) …
(c) that it is necessary for a constable to enter and search the premises for the purpose mentioned in subsection (1)(a); and
(d) that on at least two occasions a constable has sought entry to the premises in order to search them for that purpose and has been unable to obtain entry for that purpose.
…
(6) The warrant may authorise the constable executing it to use reasonable force if necessary to enter and search the premises."
By section 80(2) of the Sexual Offences Act 2003 a person for the time being subject to the notification requirements of Part 2 is a "relevant offender". The appellant is therefore a relevant offender for the purposes of section 96B and will remain one for as long as he remains subject to the notification requirements. In his case the notification requirement will apply for the rest of his life, unless he can establish that he no longer poses a risk to society. By virtue of section 91A of the Act it is possible after the expiry of fifteen years to make an application for exemption from those requirements, and if the appellant were to succeed in such an application the power given by section 96B would cease to exist in relation to him. A "senior police officer" for the purposes of section 96B is a constable of the rank of Superintendent or above.
On several occasions following his release from prison the police visited the appellant's house informally (i.e. otherwise than pursuant to a warrant) and were allowed entry. On one occasion he asked them to leave after a short time and they did so, thereby bringing the visit to an end. It has not been suggested that the police forced their way into his home on any occasion or that they acted improperly once there, but it is said that the appellant did not truly consent to their entry because his will was overborne by the knowledge that, if he refused to let them in, they would be able to obtain a warrant under section 96B.
The proceedings below
In September 2011 the appellant began proceedings for judicial review seeking, among other things, declarations that the powers contained in section 96B can be used only if there is a reasonable suspicion of offending, that a warrant can be sought under that section only if the person whose house is to be searched is given notice of the proceedings and (alternatively) that section 96B is incompatible with article 8 of the European Convention on Human Rights. He also claimed damages in respect of the informal visits to his home on the grounds that they involved a breach of his Convention rights. In the grounds of claim it was said that the issues to which the claim gave rise were (i) whether the legislation was to be read subject to an implicit restriction requiring reasonable suspicion that an offence has been or is likely to be committed, (ii) whether the legislation was incompatible with article 7 of the Convention (because in the appellant's case it imposed more onerous conditions on him than those which could have been imposed at the time of his conviction and so amounts to a retrospective penalty) and (iii) whether the appellant had a right under articles 8 or 6 of the Convention to make representations before any warrant was sought to enter his home. It is fair to say, however, that the appellant's grounds also contained an assertion that informal visits by the police to his house involved a breach of his rights under article 8.
In December 2012 the matter came before the Divisional Court. The appellant's arguments were directed primarily to the three questions identified in the grounds of claim, which are concerned with the nature of the powers given by section 96B and the procedure by which they may be invoked. However, counsel for the appellant also submitted that informal visits to his home involved a breach of his rights under article 8 because they were not truly consensual. It seems to me that those two limbs of the case raised quite separate and distinct questions which unfortunately do not appear to have been articulated with the clarity they deserved.
The court held that section 96B contained adequate safeguards to render the interference with the article 8 rights of offenders to whom it applies proportionate and thus compliant with the Convention. Consequently, it did not need to be read down. The court also held that the informal visits which the police had made to the appellant's home, both before and after the enactment of section 96B, were consensual.
Having been refused permission to appeal by the Divisional Court, the appellant made an application to this court. Permission was granted in relation to two points only: (i) whether, insofar as article 8 is engaged at all, informal visits by the police to an offender's home are not in accordance with the law, within the meaning of article 8.2 of the Convention and (ii) whether the absence of a procedure enabling an offender to seek exemption from the operation of section 96B separately from the notification requirements is disproportionate and constitutes an unlawful interference with his rights under article 8. The issues before this court are therefore narrower than those which the Divisional Court had to consider.
Mr. Hugh Southey Q.C. for the appellant accepted, as he had to, given the limited grounds on which permission to appeal had been granted, that section 96B was not in itself incompatible with article 8 of the Convention. He submitted, however, that informal visits by the police involved an unlawful interference with the appellant's Convention rights, because the very existence of the power to obtain a warrant if they were refused entry was sufficient to prevent such visits from being truly consensual. The entry of the police into the appellant's home otherwise than with his informed consent freely and unequivocally given was an unlawful intrusion and thus a violation of his rights under article 8. That led him to submit that section 96B was for that reason incompatible with the Convention, but for the reasons I have given a challenge of that kind was not in my view open to him. Mr. Southey...
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