European Court of Human Rights

27 November 2009

FOURTH SECTION

Application no. 22241/08
by H.
against the United Kingdom
lodged on 2 May 2008

STATEMENT OF FACTS

THE FACTS

The applicant is a British national who was born in 1988. He is represented before the Court by Ms L. Janes, a lawyer practising with the Howard League for Penal Reform in London.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  The offence, conviction and sentence

At the time of the offence the applicant was 16 years old. The victim of the offence was a 17-year-old girl with whom the applicant was at school. She lived in a mobile home in the garden of her parents’ house. At about midnight one night between 28 and 31 January 2005 the applicant entered her mobile home, which was unlocked. The victim was asleep, naked, in bed. The applicant got into her bed, naked. The victim said that he then rolled over and put his arms round her waist (she was facing away from him); she called out her boyfriend’s name, thinking it must be him, but when she did not receive a response she turned round to see it was the applicant. At this point the applicant is said to have grabbed hold of her wrists and knelt over her, with one knee either side of her thighs. He asked the victim to have sex with him and she refused, kicked him and threatened to scream. The applicant ejaculated on the victim’s back and left.

The applicant was convicted of sexual assault under section 3 of the Sexual Offences Act 2003 and sentenced, on 23 September 2005, to 30 months detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (“2000 Act”). The trial judge had reference to the fact that the applicant had a positive history of activity at school and otherwise (including a bronze Duke of Edinburgh award). There were, however, a bundle of reports which caused the judge concern about the applicant’s sexual attitudes. A pre-sentence report stated that he understood that his actions were wrong by virtue of being arrested and regretted the emotional distress he had caused. The report concluded, however, that the seriousness of the offence indicated that the risk of re-offending and the potential harm to the public was high. It also referred to “a lack of understanding and misinterpretation of issues around sex and relationships”.

A psychiatric report from an expert in learning disabilities (rather than a forensic psychiatrist) spoke of a history of neuro-developmental delay, and a diagnosis of motor dyspraxia at three years of age followed by a head injury in September 2004 with some reported personality change including lack of insight, a degree of impulsiveness/disinhibition and lack of ability to control behaviour. The psychiatrist considered frontal lobe damage but neurological investigation concluded that the head injury was unlikely to have been enough to cause permanent cerebral damage. A psychologist concluded that the risk of re-offending was high having observed:

“[H] holds a range of risky attitudes around sexual behaviour and, in particular, women. It is likely that his poor verbal skills have facilitated the development of inappropriate and inaccurate attitudes, and allowed him to develop a range of cognitive distortions which are central to the development of his offending behaviour.”

All the professionals suggested a non custodial sentence on the basis of their concern about the effect of custody and his need for help. In the event, in passing the above custodial sentence, the trial judge said that he bore in mind the plea of guilty at a very early opportunity, his good character, personal difficulties and age but observed:

“Entering as a trespasser, not breaking in ... because the door was unlocked because of the security she felt in her parents’ garden ... and committing [this offence] in the home, indeed the bed, of a female is an extremely serious matter and it very much aggravates your offending.”

An extended licence period of 30 months was also imposed under section 85 of the 2000 Act. The sentence imposed was therefore five years in total; two and half years’ detention followed by an extended licence period of two and a half years. In addition the notification requirements under Part 2 of the Sexual Offences Act 2003 (the 2003 Act”) applied, and the applicant was made subject to a mandatory Notification Order for an indefinite period. He was released from detention on licence in December 2006.

3. The appeal against sentence

The applicant appealed against the sentence imposed to the Court of Appeal on the basis that it was manifestly excessive. In addition it was argued that the sentencing judge in passing sentence should have taken into account the fact that it would result in an automatic indefinite imposition of a Notification Order and should therefore have considered the impact of such an order on the applicant’s Article 8 rights. It was argued that the 30 month custodial sentence should be reduced (even if only by a day) in order to avoid what was, it was argued, an unlawful interference with the applicant’s Article 8 rights.

The Court of Appeal ([2007] EWCA Crim 2622) rejected the application for leave to appeal against sentence on 7 November 2007 for the following reasons:

“[The applicant’s counsel] submits that if the sentence was on the cusp of a regime that required notification for life rather than for the more limited period of 5 years, it fell to the judge to consider whether, in the circumstances, he should not mitigate the effect of his sentence by reducing the 30 month term, if only by a short period. In that regard, it must be borne in mind that the notification provisions are not part of the sentence imposed by the court but arise independently by operation of section 80 of the 2003 Act ...

Parliament determined that if the offence is sufficiently grave, even for those under 18 (for whom the length of the term is likely to be affected because of youth in any event), indefinite notification is appropriate. On the face of it, H falls into the appropriate category and, furthermore, the appellant was prevented from committing a more serious offence not because he thought better of it, but because G successfully resisted him. That is not to say that he is being sentenced to a longer term because of what he intended rather than what he actually did: he is not. But neither can it be said that it is appropriate to reduce that proper term simply because he is on the cusp of a statutory regime which, because of its inherent gravity, requires notification for a longer period than if he had been below it.

The alternative argument that [the applicant’s counsel] advances on this topic is that the statutory length of notification, in a case such as this, is disproportionate and in breach of Article 8. ...

At the time that [the trial judge] came to pass sentence, H was six months short of his 18th birthday. The reports were up to date and painted a picture of real concern. There was a high risk of re-offending and H’s presentation of a degree of impulsiveness/disinhibition and lack of ability to control behaviour appeared to be unexplained (it being unlikely to have been caused by his head injury). Neither was any evidence put before us to justify the argument that whatever might have been feared two years ago, the position had moved on and the conclusion reached as to risk had been overtaken by maturity and other events. Suffice to say, on the face of these facts and this case, even if it was open to us to approach the issue as [the applicant’s counsel] submits, we do not consider that indefinite reporting was, in any event, disproportionate.

In our judgment, the issues of principle that [the applicant’s counsel] seeks to have resolved simply do not arise on the facts of this case. Although we understand H’s father’s real concern that his son should not be subject to the requirements of lifelong notification because of his conduct as a 16 year old, the purposes of notification is to allow the police to be aware of the whereabouts of those who, by reason of their prior conduct, are considered at high risk of sexual offending; unfortunately, his son falls into that group. This application is refused.”

2.  The Notification Order

Once subject to a Notification Order, the applicant was required to comply with sections 80 to 92 of the 2003 Act. In summary, these include notifying the police of: (1) his name and address, date of birth and national insurance number; (2) any changes to his name or home address within three days of the change; (3) any address he stays at or plans to stay at other than his home address for a period of longer than seven days within a twelve month period (within three days); and (4) any plans to travel abroad for a period of three days or longer. If, without reasonable cause, a person subject to a notification order fails to comply with the notification requirements he is liable on conviction to a term of imprisonment not exceeding five years.

In addition to these formal requirements set out in the 2003 Act there are additional consequences that flow from being subject to a notification order. Soon after the order was imposed the applicant was visited by two officers from the Public Protection Unit to deal with all the necessary paperwork. At this point the applicant and his family began to understand the enormity of the situation and the implications for the family as well as the applicant. Apart from the applicant’s details, the police also needed his parents’ car registration numbers, details of children who might come to the house or who they might visit so they could be contacted. Two such families, who the applicant’s family told the police regularly visited, were contacted by the police within days to ensure that they were aware of the applicant’s history. In addition, the requirements prevented the applicant’s sister, who was seventeen years’ old and suffering from Attention Deficit Hyper-Active Disorder and traits of autism, from having friends visit her at home.

As noted above the applicant has to register any temporary addresses he stays at more than seven times a year. Although he tends not to travel very often it includes stays at his grandparents and other family friends. When the applicant made plans to attend the wedding of his parents’ godson he informed the police and was asked to provide the contact details of the groom so as to ensure that he was aware of the situation.

The applicant is under an obligation to inform employment agencies and prospective employers of his inclusion on the Sex Offenders’ Register. The applicant has had difficulty in finding employment but has nonetheless felt on occasion that he would rather lose his job than disclose this fact and work alongside people he felt were judging him. The applicant’s family have had to assist in this disclosure. The applicant always wanted to join the Army but cannot now do so.

If the applicant ever gets married and has children, the police and/or social services may monitor him. The applicant has been told by police that he should inform them if he enters a relationship with a woman so as to reduce difficulties if he is seen in public with a woman.

At the time the application was lodged, the applicant’s parents were concerned that his self esteem and confidence were very low. Although he was desperate to make a fresh start, being on the Register made him feel that this was almost impossible.

B. Relevant domestic law and practice

1. The legislation

Statutory notification requirements for sex offenders were first introduced by section 1(3) of the Sexual Offenders Act 1997 (“the 1997 Act”). They were automatic on conviction. Under the 1997 Act regime, the notification requirements were to give the police details of the offender’s name, address and date of birth within 14 days of conviction, and to notify any address at which he would be staying for 14 days or longer.

The Criminal Justice and Courts Services Act 2000 reduced the initial notification time to three days and introduced a new requirement that an offender notify the police if he intended to travel overseas in accordance with regulations made by the Secretary of State. Regulations were made pursuant to the 2000 Act which required that notification of travel should be made at least 48 hours prior to departure and that it must include the identity of the carrier, all points of arrival in destination countries, accommodation arrangements, return date and point of arrival if known.

All these provisions were repealed by the 2003 Act. Section 82(1) of the 2003 Act contains a table which prescribes the notification periods for different categories of offenders. For persons who have been sentenced to imprisonment or detention for 30 months or more, an indefinite period beginning with “the relevant date” is prescribed (in the applicant’s case, the date of conviction: section 82(6)). Section 82(2) provides that, where a person is under the age of 18 on the relevant date, the determinate periods prescribed in the table are halved in respect of sentences shorter than 30 months.

Section 83 makes provision for initial notification. Thus, within three days of the relevant date, the offender must notify to the police the information specified in subsection (5), namely his date of birth; his national insurance number; his name on the relevant date and, where he used one or more other names on that date, each of those names; his home address on the relevant date; his name on the date on which notification is given and, where he uses one or more other names on that date, each of those names; his home address on the date on which notification is given; and the address of any other premises in the United Kingdom at which, at the time the notification is given, he regularly resides or stays.

Section 84 makes provision for the notification of changes in the information given pursuant to section 83 within three days of the changes occurring. This includes notification of the person’s “having resided or stayed, for a qualifying period, at any premises in the United Kingdom the address of which has not been notified to the police...” (subsection (1)(c)). Subsection (6) provides that “qualifying period” means (a) a period of seven days, or (b) two or more periods, in any period of 12 months, which taken together amount to seven days.

Section 85 provides for periodic notification of the information specified in section 83(5). Section 86(1) provides that the Secretary of State may by regulations make provision requiring offenders who leave the United Kingdom to give a notification under subsection (2) before they leave and a notification under subsection (3) about their subsequent return. A notification under subsection (2) must disclose the date on which the offender will leave; the country (or the first country) to which he will travel and his point of arrival in that country; and any other information prescribed by the regulations which the offender holds about his departure from or return to the United Kingdom or his movements while outside the United Kingdom. A notification under subsection (3) must disclose any information prescribed by the regulations about the offender’s return to the United Kingdom.

Section 87(1) provides that a person gives a notification “(a) by attending at such police station in his local police area as the Secretary of State may by regulations prescribe, and (b) giving an oral notification to any police officer, or to any person authorised for the purpose by the officer in charge of the station”. Section 87(4) provides that where a notification is given, the relevant offender must, if requested to do so by the police officer or authorised person, allow the officer or person to take his fingerprints and/or photograph any part of him.

Section 91(1) provides that a person commits an offence “if he (a) fails, without reasonable excuse, to comply with section 83(1), 84(1), 84(4)(b), 85(1), 87(1) ... or any requirement imposed by regulations made under section 86(1)”. Section 91(2) provides that a person guilty of an offence under this section is liable on conviction on indictment to imprisonment to a term not exceeding five years and on summary conviction to a term not exceeding six months or a fine or both.

2. The judgment of the Court of Appeal in The Queen on the application of JF and Thompson v. Secretary of State for the Home Department [2009] EWCA Civ 792

On 23 July 2009 the Court of Appeal considered applications by two sex offenders, one of whom had been aged only 11 years old at the time of his offence, against the imposition of indefinite Notification Orders. Dyson LJ, who gave the judgment of the court, observed that although for some offenders the notification requirements might be a modest interference with their Article 8 rights, for others the interference would be more substantial. He continued:

“44. ... The aim of the notification requirements regime is to assist in the prevention and detection of sexual offences. The assumptions that underpin the provision for indefinite notification requirements are that (i) there is a risk that those who have committed serious sexual offences (ie offences which attract a custodial sentence of at least 30 months in length) may commit further sexual offences for the rest of their lives; and (ii) the notification requirements will assist the police in preventing and detecting such offences and may deter offenders from further offending. These two assumptions are falsified in a case where it is clear that there is no real risk that the sexual offender will re-offend. No purpose is served by keeping on the Sexual Offences Register a person of whom it can confidently be said that there is no risk that he will commit a sexual offence. To keep such a person on the police data base does nothing to promote the aims of the notification requirements. To say that the data base is no longer complete begs the question of what a complete data base should comprise. In our judgment, it should not include offenders who no longer present a risk of sexual offending. As we have seen, [in Re Kevin Gallagher [2003] NIQB 26] Kerr J said that to be viable the scheme must contain general provisions of universal application. That may be true in relation to the automatic imposition of notification requirements at the outset as a result of the sentence. But we do not see how the inclusion of a right of review of indefinite notification requirements would render the whole scheme unviable. At [26], Kerr J said that the inconvenience to offenders must be set against the ‘substantial benefit that it will achieve of keeping the police informed of where offenders are living and of their travel plans so that further offending may be forestalled’. But where there is no real risk of further offending, there is no benefit in keeping the police so informed. On the contrary, the lack of a system to review those who are no longer a risk may adversely affect the efficacy of the system as police forces become burdened with notifications from an ever-increasing number of offenders.”

The court concluded by holding that as a matter of principle an offender was entitled to have the question whether the notification requirements continue to serve a legitimate purpose determined on a review. It upheld the declaration of incompatibility which had been made by the Divisional Court under section 4 of the Human Rights Act 1998.

COMPLAINTS

The applicant complains under Article 8 of the Convention that the automatic imposition of an indefinite notification order is a disproportionate violation of his right to respect for private life and under Article 13 that there was no means for him to challenge the imposition of the order or apply for it to be discharged.

QUESTIONS TO THE PARTIES