UKSC 17
On appeal from:  EWCA Civ 792
R (on the application of F (by his litigation friend F)) and Thompson (FC) (Respondents) v Secretary of State for the Home Department (Appellant)
Lord Phillips, President
Lord Hope, Deputy President
JUDGMENT GIVEN ON
21 April 2010
Heard on 3 and 4 February 2010
James Eadie QC
(Instructed by Treasury Solicitors)
Hugh Southey QC
(Instructed by Stephensons )
Tim Owen QC
(Instructed by Irwin Mitchell )
Lord Boyd of Duncansby QC
James Mure QC
(Instructed by Scottish Government Legal Directorate Litigation Division )
Aidan O'Neill QC
(Instructed by Balfour & Manson )
LORD PHILLIPS (with whom Lady Hale and Lord Clarke agree)
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
The statutory provisions
The approach to proportionality
"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
However, as Lord Bingham of Cornhill observed in Huang v Secretary of State for the Home Department  UKHL 11;  2 AC 167 at para 19, there is an overriding requirement to balance the interests of the individual against those of society.
"22 . . . the absence of a dispensing provision whereby the applicant might apply to be relieved of the reporting requirements after a stipulated period will not render the provisions automatically disproportionate. That feature is undoubtedly relevant to the issue but it alone cannot dictate the outcome of the examination of a scheme's proportionality.
23. It is inevitable that a scheme which applies to sex offenders generally will bear more heavily on some individuals than others. But to be viable the scheme must contain general provisions that will be universally applied to all who come within its purview. The proportionality of the reporting requirements must be examined principally in relation to its general effect. The particular impact that it has on individuals must be of secondary importance.
24. The gravity of sex offences and the serious harm that is caused to those who suffer sexual abuse must weigh heavily in favour of a scheme designed to protect potential victims of such crimes. It is important, of course, that one should not allow revulsion to colour one's attitude to the measures necessary to curtail such criminal behaviour. A scheme that interferes with an individual's right to respect for his private and family life must be capable of justification in the sense that it can be shown that such interference will achieve the aim that it aspires to and will not simply act as a penalty on the offender.
25. The automatic nature of the notification requirements is in my judgment a necessary and reasonable element of the scheme. Its purpose is to ensure that the police are aware of the whereabouts of all serious sex offenders. This knowledge is of obvious assistance in the detection of offenders and the prevention of crime. If individual offenders were able to obtain exemption from the notification requirements this could – at least potentially - compromise the efficacy of the scheme.
26. By the same token the fact that the notification requirements persist indefinitely does not render the scheme disproportionate. While this is unquestionably an inconvenience for those who must make the report, that inconvenience 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 both by rendering detection more easily and deterring those who might be tempted to repeat their offences.
27. I am therefore satisfied that the notification requirements are proportionate and the application for judicial review must be dismissed."
"In light of the importance of the aims being pursued I am satisfied that the rigid and indeterminate nature of the scheme under discussion does not result in this petitioner having to bear an individual and excessive burden. That is not to say that if the facts of the case were different the same view would necessarily be arrived at. For example, the proportionality of an indefinite interference with the art 8 rights of an elderly man who had been in no trouble for very many years might cause the issue to be focused in quite a different way."
The Lord Ordinary had earlier accepted the proposition that his task was to look at the facts as they applied to the applicant rather than in the abstract, albeit in the context of the general aims of the legislation (para 49), and this is what he appears to have done. His judgment did not focus on the question of whether the lack of any review of the notification requirements could be justified.
The Strasbourg jurisprudence
"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."
The reference to deterrence was particularly relevant on the facts of that case, and the duty extends to taking such other steps as are reasonable to prevent the commission of sexual offences.
". . . the purpose of the measures in question is to contribute towards a lower rate of reoffending in sex offenders, since a person's knowledge that he is registered with the police may dissuade him from committing further offences and since, with the help of the register, the police may be enabled to trace suspected reoffenders faster."
"…in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances."
"67. Comme l'indique le Gouvernement, il s'agit d'une durée maximale. Quoi qu'importante en l'espèce puisqu'elle est de trente ans, la Cour observe que l'effacement des données est de droit, une fois ce délai écoulé, lequel se compute dès que la décision ayant entraîné l'inscription cesse de produire tous ses effets. La Cour relève également que la personne concernée peut présenter une demande d'effacement au procureur de la République si la conservation des données la concernant n'apparaît plus pertinente compte tenu de la finalité du fichier, au regard de la nature de l'infraction, de l'âge de la personne lors de sa commission, du temps écoulé depuis lors et de sa personnalité actuelle (paragraphe 16, article 706-53-10 du CPP). La décision du procureur est susceptible de recours devant le juge des libertés et de la détention puis devant le président de la chambre de l'instruction.
68. La Cour considère que cette procédure judiciaire d'effacement des données assure un contrôle indépendant de la justification de la conservation des informations sur la base de critères précis (S. et Marper, précité, § 119) et présente des garanties suffisantes et adéquates du respect de la vie privée au regard de la gravité des infractions justifiant l'inscription sur le fichier. Certes, la mémorisation des données pour une période aussi longue pourrait poser un problème sous l'angle de l'article 8 de la Convention, mais la Cour constate que le requérant a, en tout état de cause, la possibilité concrète de présenter une requête en effacement des données mémorisées alors que la décision ayant entraîné son inscription a cessé de produire tous ses effets. Dans ces conditions, la Cour est d'avis que la durée de conservation des données n'est pas disproportionnée au regard du but poursuivi par la mémorisation des informations."
"67. As the Government points out, it is a maximum duration. Although significant in this case, since it is of thirty years, the Court observes that what is important in this case, where the period is thirty years, is that the deletion of information is of right once the time has lapsed, as calculated from the date on which the sentence giving rise to registration ceases to have effect. The Court also notes that the person concerned can apply to the prosecutor for the deletion of the information if its preservation no longer appears to be relevant, taking into account the purpose of the register and having regard to the nature of the offence, the age of the person at the time that it was committed, the length of time that has lapsed since then, and the offender's current character (paragraph 16, Article 706-53-10 of the Code of Criminal Procedure). The prosecutor's decision is subject to appeal to the juge des libertés et de la detention, then to the president of the investigating chamber.
68. The Court considers that this judicial procedure for removing the information ensures independent review of the justification for the retention of the information according to defined criteria (S and Marper, already cited, para 119) and provides adequate and sufficient safeguards in relation to respect for private life, with regard to the seriousness of the offences justifying registration on the sex offenders' register. Certainly, the retention of data for so long a period could be problematic in terms of Article 8 of the Convention, but the Court notes that the Applicant has in any case the concrete opportunity to apply for the deletion of the data retained when the sentence giving rise to his registration has ceased to have effect. In these circumstances, the Court is of the opinion that the length of time that the data is kept is not disproportionate to the aim pursued by the storage of the information."
The effect of the jurisprudence
The decision of the Divisional Court
"whether an offender who can clearly demonstrate that he presents no risk, or no measurable risk, of re-offending should be precluded from obtaining a review of the notification requirements."
The decision of the Court of Appeal
". . . 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."