Proportionality and Limitations on Human Rights: Indefinite and Unreviewable Reporting Obligations Breach the Right to Privacy

JF & Anor, R (on the application of) v Secretary of State for the Home Department [2009] EWCA Civ 792 (23 July 2009) The UK Court of Appeal has found that a regime providing for automatic and indefinite reporting obligations for certain sex offenders, without the possibility of any future review, imposes a disproportionate limit on the right to privacy.

Facts

Section 82 of the Sexual Offences Act 2003 (UK) provides that individuals convicted of certain sexual offences are subject to reporting obligations.  The obligations include a duty for the offender to notify police of:

  • the offender’s name, date of birth, insurance number, and relevant addresses (which must be re-notified annually);
  • any subsequent changes to this information, including any other address the person has resided at for at least 7 days; and
  • information regarding any travel plans and itineraries, which must be provided at least 7 days (or 24 hours in certain circumstances) before the person departs the UK.
  • For offenders sentenced to a term of detention or imprisonment over 30 months for the offence, the reporting obligations apply indefinitely.  There is no provision for review of the obligations.

The two claimants in this case were subject to the indefinite reporting regime.  One of the claimants, sentenced to exactly 30 months’ detention, was 11 years old when the offences were committed.  Both claimants argued that the regime breached article 8 of the European Convention on Human Rights, which protects ‘respect for private and family life’.  The claimants sought a declaration of incompatibility pursuant to s 4 of the Human Rights Act 1998 (UK).

A Divisional Court granted the declaration and the Secretary of State brought this appeal to the Court of Appeal.

Decision

The Secretary conceded that the Sexual Offences Act 2003 intruded on the right to privacy, but argued that the law fell within article 8(2) of the Convention.  Article 8(2) permits lawful intrusions on the right to privacy which are ‘necessary in a democratic society’ for reasons including the prevention of crime.  The key issue between the parties was whether the reporting regime was proportionate to this objective, and thus permitted under art 8(2).  It was common ground that the interference was required to be ‘no more than is necessary to achieve the legitimate objective’ of preventing crime.

Lack of review mechanism unnecessary and disproportionate

Reporting obligations on sex offenders were introduced in the UK in 1997, and then extended in 2000 and 2003.  Courts had already held that the 1997 and 2000 regimes were compatible with the Convention.  However, the Court of Appeal distinguished these cases on the basis that the previous reporting obligations were significantly less burdensome, and the cases had not considered the human rights compatibility of imposing indefinite reporting obligations without any future right of review.

With respect to proportionality, the Court found that:

  • the impact of the notification requirements was substantial, particularly for individuals who travel frequently;
  • there was inevitably a “real possibility” that an offender’s reporting obligations would be discovered by others;
  • a review mechanism would not prejudice law enforcement if it only relieved individuals with no risk of recidivism from reporting; and
  • a review mechanism would not necessarily impose an undue burden on the state, because the legislature could impose appropriate limitations on eligibility for review.

Accordingly, the Court upheld the Divisional Court’s finding that an offender subject to indefinite reporting obligations is entitled to have the obligations reviewed.  This conclusion was strengthened in its application to child offenders, given the principle that ‘an offender deemed by statute to be not fully mature when committing his crime should not be punished as if he were’.

Applicants not required to prove personal breach of rights

The Court also rejected an argument by the Secretary that the claimants should be required to prove that their human rights had been breached before issuing a statement of incompatibility.  The Court held that, even though the reporting obligations might have been reasonably imposed in their situations, they nevertheless had a ‘real interest’ in having a potential future avenue of review.

Relevance to the Victorian Charter

Section 13 of the Victorian Charter of Human Rights and Responsibilities 2006 (Vic) provides for the right of privacy.  As in the UK, rights are subject to reasonable limits, although, in assessing such limits, s 7 of the Victorian Charter specifically requires consideration of whether there are ‘less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve’. 

The Sex Offenders Registration Act 2004 (Vic) is very similar to the UK registration regime, providing for automatic and indefinite reporting obligations for certain sex offenders.  However, unlike in the UK, individuals subject to indefinite reporting may apply to have the obligations suspended.

More generally, this case justifies Victorian courts applying careful scrutiny to laws which impose severe limits on human rights, and highlights the specificity with which courts may consider modifications to relieve such laws.  Indeed, Victorian Courts have already used the Charter to narrow the scope of sexual offender supervision schemes.  In TSL v Secretary to the Department of Justice [2006] VSCA (26 September 2006), for example, the Court of Appeal drew on s 7 of the Charter (which had not yet come into effect) to justify requiring a ‘high degree of probability’ of recidivism before a sex offender would be subject to a supervision order.

The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2009/792.html.

Zach Meyers, Human Right Law Group, Mallesons Stephen Jaques

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