QUEEN'S BENCH DIVISION
Priory Courts, 33 Bull Street, Birmingham
B e f o r e :
MR JUSTICE HICKINBOTTOM
| R (on the Application of Christopher Prothero)
|- and -
|Secretary of State for the Home Department
Mr Martin Chamberlain QC (instructed by Treasury Solicitor) for the Defendant
Hearing date: 25 June 2013
Crown Copyright ©
President of the Queen's Bench Division:
This is the judgment of the court
The background to the making of the Regulations
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.
".. 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."
"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 person, and in relation to each such account, the information specified in paragraph (6); or
(f) a credit card in relation to any account of which notification is given in accordance with sub-paragraph (d) or (e), and in relation to each such credit card, the information specified in paragraph (7)."
The applicable legal regime
(a) The duties under Article 8
"Sexual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to State protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives."
Second, the State owes a duty to ensure that, if a scheme for protecting potential victims interferes with the private or family life of another individual, the scheme must be capable of justification in the sense that it can be shown that such interference will achieve the policy aim that it aspires to achieve and will not simply act as a penalty on the offender (see the pithy summary by Kerr J (as he then was) in Re an Application for Judicial Review by Gallagher  NIQB 26).
"(i) What is the extent of the interference with article 8 rights? (ii) How valuable are the notification requirements in achieving the legitimate aims? and (iii) to what extent would that value be eroded if the notification requirements were made subject to review? The issue is a narrow one."
(b) What is the extent of the interference with Article 8 rights?
"Giving information to the local police in relation to one's address and one's movements coupled with the explanation that this is necessary because one is on the sexual offences register will necessarily carry the risk that the information may be conveyed to third parties in circumstances where this is not appropriate."
The question that arises, therefore, is how great is that interference?
(c) How valuable are the notification requirements in achieving the legitimate aims?
"62 The legislation must not only have a legitimate policy objective. It must also satisfy a "proportionality" test. The court must decide whether the means employed by the statute to achieve the policy objective is appropriate and not disproportionate in its adverse effect. This involves a "value judgment" by the court, made by reference to the circumstances prevailing when the issue has to be decided. It is the current effect and impact of the legislation which matter, not the position when the legislation was enacted or came into force. (I interpose that in the present case no suggestion was made that there has been any relevant change of circumstances since the Consumer Credit Act 1974 was enacted.)
63 When a court makes this value judgment the facts will often speak for themselves. But sometimes the court may need additional background information tending to show, for instance, the likely practical impact of the statutory measure and why the course adopted by the legislature is or is not appropriate. Moreover, as when interpreting a statute, so when identifying the policy objective of a statutory provision or assessing the "proportionality" of a statutory provision, the court may need enlightenment on the nature and extent of the social problem (the "mischief") at which the legislation is aimed. This may throw light on the rationale underlying the legislation."