R (Prothero) v Secretary of State for the Home Department [Queen's Bench Division: Birmingham]

President of the Queen's Bench Division:

This is the judgment of the court

The issue

Regulation 12 of the Sexual Offences Act 2003 (Notification Requirements) (England and Wales) Regulations 2012 (the Regulations) requires a person on the Sex Offenders Register to provide details of bank, debit or credit card accounts held by him. In these proceedings the claimant seeks a declaration that this Regulation is incompatible with Article 8 of the European Convention on Human Rights.

Factual background

In February 2007 the claimant was convicted of nine counts of indecent assault and indecency with a child. He was subsequently sentenced to 4 ¹/₂ years imprisonment. He was released from custody in February 2010. After having difficulties finding employment he became self employed. He had two bank accounts — a current account and a saver account. His evidence is that he complied with all of his licence conditions and the notification requirements as they were on his release (to which we refer at paragraph 7 below); that he also had notified the necessary parties of his address and dates when he would be working away from home. His case is that the requirements of the Regulations under which, as we shall explain in more detail, he had to provide details of his bank accounts were an invasion of his privacy as he was concerned that the information might get into the wrong hands or be used by the authorities for some purpose other than that for which it was intended.

Anonymity

When the claim was initially brought he applied for anonymity. An order was provisionally made granting anonymity on the basis it would be considered by the court that heard the case.

Anonymity was sought on two bases. First that it might lead to the identification of the victim and secondly it would identify the claimant as being on the Sexual Offenders Register, adversely affect his chances of rehabilitation and employment and deter others on the Sex Offenders Register from bringing claims challenging the legality of matters affecting them.

We are satisfied that nothing set out in this judgment will identify the victim of the claimant's crime. If we had considered that that was a real risk, we would not have made an order for anonymity but made an order restricting the reporting of the claimant's name. As to the contention that the claimant should be anonymised on the basis that he would be identified as a person on the Sexual Offenders Register and his rehabilitation impeded, there is nothing in the evidence before us which suggests that there are any special risks to him or to public order by him being identified. If an order for anonymity is sought, on the basis advanced by the claimant, then there must be evidence so that the court can assess the competing considerations between public justice and the particular position of a claimant and his rights under Article 8.

As to the contention that claimants might be deterred from bringing such claims as this if they were to be identified as bringing such claims, we have had regard to the guidance given in Re Guardian News and Media Limited [2010] UKSC 1, [2010] 2 AC 697. We cannot see any basis for according the claimant anonymity; those seeking a remedy in a court do so in public for the reasons given in Scott v Scott [1913] AC 417 and the many cases that have followed it. The right of the press is protected under Article 10. There is nothing in the evidence before us that raises any special counterbalancing considerations under Article 8. We therefore revoke the order for anonymity.

The background to the making of the Regulations

The obligation to notify certain required matters by those convicted of sexual offences is set out in s. 80-s.88 of Part 2 of the Sexual Offences Act 2003 (the 2003 Act), as amended. Until the changes made by the Regulations in 2012 an offender, such as the claimant who has been placed indefinitely upon the Register, is to notify the details set out under s.83(5), including his date of birth, National Insurance number, his home address and the address of any other premises in the United Kingdom at which he regularly stays. He is obliged under s.84 to notify changes of name and changes of address.

In addition to these express provisions, power was also given to the Secretary of State to make regulations. The 2003 Act was amended by the Criminal Justice and Immigration Act 2008 to add further sections, some of which conferred further regulation making powers.

On 21 April 2010 the Supreme Court held in R (F)(a Child)) v The Secretary of State for the Home Department [2010] UKSC 17, [2011] 1 AC 331 that the notification requirements under the 2003 Act were capable of causing significant interference with the Article 8 rights of an offender on the register. For those subject to lifetime notification able to demonstrate they no longer pose a risk, it was held that there was no justification for continued interference with their Article 8 rights by insisting on future compliance with reporting requirements. Consequently, the court affirmed a declaration of incompatibility to the effect that the absence of any mechanism for review of the requirements under the 2003 Act was a disproportionate interference with the rights under Article 8.

As a consequence of that decision the Secretary of State effected two changes to the legal regime.

i) Using powers under the Human Rights Act, she made the Sexual Offences Act 2003 (Remedial) Order 2012 amending the 2003 Act to provide for a review of the indefinite notification requirements under the Act; under s.91B inserted into the 2003 Act by that Order, an offender in the position of the claimant became entitled to seek a review of the notification requirements 15 years after the date on which he was first required to notify. That amendment is not currently relevant for the Claimant, who will be unable to apply for a review for a considerable time yet.

ii) The second step taken by the Secretary of State was to consult on modifications to the notification requirements by seeking the views of the public on notification in relation to foreign travel, place of residence, residence with a minor and, importantly for this case, the notification of details of any bank account or credit or debit card held with a bank or similar institution.

It appears from the consultation paper that the view of the Secretary of State was that making this last change would achieve consistency with the position in Scotland where, under the Police, Public Order and Criminal Justice (Scotland) Act 2006 and the Sexual Offences Act 2003 (Notification Requirements) (Scotland) Regulations 2007, offenders were required to notify bank account, debit and credit card details. The justification set out in the consultation paper was that the provision of such details, together with details of passports, would strengthen the ability of the police to detect sex offenders who failed to comply with the requirements to notify and thus protect the public.

The response to the consultation published by the Home Office disclosed that 60 responses had been made. The response indicated that the additional requirement to notify details of credit cards, bank accounts and passports would:

".. significantly enhance the ability of the police to promptly trace an individual who failed to comply with notification requirements, without the delays associated with current processes for tracking down the information through existing powers under the Police and Criminal Evidence Act 1984 and other legislation."

After that consultation the Secretary of State laid the Regulations before Parliament under the regulation making power under the 2003 Act which we have described. Regulation 12(1) of the Regulations set out the details of the relevant bank accounts and debit and credit cards in respect of which information had to be supplied:

"2. —(1) The information set out in paragraphs (2) to (7) is prescribed for the purposes of section 83(5)(h) of the 2003 Act in a case where a relevant offender (R) holds —

(a) an account with a banking institution in R's name, or in R's name and the name of another person, and in relation to each such account, the information specified in paragraph (2);

(b) an account with a banking institution in the name of an unincorporated business which is run by R, or run by R and another person, and in relation to each such account, the information specified in paragraph (3);

(c) a debit card in relation to any account of which notification is given in accordance with sub-paragraph (a) or (b), and in relation to each such debit card, the information specified in paragraph (4);

(d) an account with a credit card provider in R's name, or in R's name and the name of another person, and in relation to each such account, the information specified in paragraph (5);

(e) an account with a credit card provider in the name of an unincorporated business which is run by R, or run by R and another...