R v The Crown Court at Southwark and others

Section 97(1) of the Sexual Offences Act 2003 provides for the police to apply for a notification order in respect of an individual who has committed a prescribed type of sexual offence in another jurisdiction. Section 97(5) requires that a Magistrates’ Court “must” grant a notification order if certain basic conditions are met. The effect of the imposition of the notification order is that the relevant individual is subject to both notification requirements and multi-agency public protection arrangements. In other words, he is entered on the sex offenders register. It is well accepted that this gives rise to an intrusion into private and family life.

The claimant was convicted of a sexual offence in France in 1998. In 2018, when the Metropolitan Police learned of this, they applied to the Westminster Magistrates’ Court for a notification order. The claimant sought to argue before the magistrates’ court that the imposition of the order would be disproportionate to his rights under Article 8 ECHR due to reasons including the passage of time and because he posed no risk of re-offending. The Court held that it was obliged to impose the order. On appeal, the Southwark Crown Court reached the same view. The claimant then sought judicial review of the decision of the Crown Court. He argued that the imposition of a notification order was incompatible with his rights under Article 8 ECHR, and that if s.97(5) could not be construed so as to permit a Magistrates’ Court to decline to grant an order, it should be declared to be incompatible with Article 8 ECHR. The Secretary of State for the Home Department was granted permission to intervene in the case since the claimant was seeking a declaration of incompatibility. 

The Divisional Court dismissed the claim. Upon close analysis of the relevant jurisprudence, the Court concluded that Article 8 ECHR permitted the automatic imposition of notification requirements. The United Kingdom was entitled to take a precautionary approach pursuant to which, where a serious sexual offence had been committed, an individual assessment of the risk of re-offending was not necessary in order to justify the imposition of a notification order. Part of the reason for imposing a notification order was to enable the appropriate monitoring and assessment of ongoing risk. 

Hanif Mussa acted for the Secretary of State for the Home Department.

Please find the full judgment here.