ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR OCKELTON sitting as a deputy High Court judge)
Strand, London, WC2A 2LL
B e f o r e :
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Secretary of State for the Home Department and Anr
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The Respondent did not appear and was not represented.
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Lord Justice Pill:
"We take the view that this may be a way of minimising the difficulties with alcohol to enable her to continue drinking and to avoid taking responsibility for her actions.
52. We concluded that the appellant's evidence was unreliable…"
And reasons are given for that. Paragraph 53:
"We concluded that the admissions reflected a pattern of behaviour over a period of time which could impact significantly on the quality of care which the service users received."
"A person may only apply for permission if a) the application is made after the end of the minimum barred period."
There are other restrictions and requirements.
"No doubt realising that she cannot avoid the findings of the FTT in her own case, the applicant seeks instead a declaration of incompatibility. The argument in support is long on legal analysis but very short, indeed nonexistent, on evidence. An application for a declaration of incompatibility challenges legislative policy, and as such must give cogent justification for that challenge."
Sir Richard then referred to factors which might demonstrate that a 10-year minimum period is compatible with Article 8.
"No doubt at all there is no evidence which would persuade a judge of this court or a person to whom an application might be made that the claimant be removed from the list."
"So, looking at the matter as it is at the moment, this is a case in which the period of time for which the claimant is barred cannot have any perceptible effect on her."
"In other words, the court is required to carry out a careful exercise of weighing the legitimate aim to be pursued, the importance of the right which is the subject of the interference and the extent of the interference. Thus an interference whose object is to protect the community from the danger of terrorism is more readily justified as proportionate than an interference whose object is to protect the community from the risk of low level crime and disorder."
"It is for the police to justify as proportionate the interference with the appellant's article 8 rights. For the reasons that I have given, I am of the opinion that they have failed to do so. I would allow this appeal."
"No evidence has been placed before this court or the courts below that demonstrate that it is not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who pose no significant risk of re-offending. It is equally true that no evidence has been adduced that demonstrates that this is possible. This may well be because the necessary research has not been carried out to enable firm conclusions to be drawn on this topic. If uncertainty exists can this render proportionate the imposition of notification requirements for life without review under the precautionary principle? I do not believe that it can."
"…as a matter of principle, an offender is entitled to have the question whether the notification requirements etc continue to serve a legitimate purpose determined…"
"It was important to both claimants as well as to the Secretary of State and the public at large to know whether the scheme was incompatible with art 8 on the grounds that there was no right to review notification requirements that had been imposed for an indefinite period."
"It is not to be inferred from the judgments below that, had either claimant been entitled to challenge, by way of a review, the notification requirements made in his case, the challenge would have succeeded. The only issue raised by these appeals is a general one. Does the absence of any right to a review render lifetime notification requirements disproportionate to the legitimate aims that they seek to pursue?"
"I am not prepared to hold that this analysis, albeit somewhat simplistic, is wrong. On that basis I am persuaded, just, that the period of 10 years, although on any view a long one, is not unjustified. I am conscious, however, that my judgment has been reached on very little factual material. Since the scheme as a whole is under a review I express the hope that the issue of minimum Baring periods will be looked at anxiously in the light of all the information available which bears upon this topic."
Order: Application granted