Following a number of high profile stories in the news relating to alleged sex offenders, a recent High Court case dealing with disclosure of known sex offender’s details comes at a time of high public concern about such offenders.
The case of X (South Yorkshire) v Secretary of State for the Home Department and Another  EWHC 2954 (Admin) involved the legality of the Child Sex Offender Disclosure Scheme (CSODS), a non-statutory scheme introduced by the Home Office.
Disclosure of information about sex offenders
Currently there are a number of different regimes for the disclosure of information about child sex offenders:
- General common law duties.
- Obligations under multi-agency public protection arrangements (MAPPA) which are statutory in nature and are aimed at managing the risk caused by an offender.
- An obligation under section 327A of the Criminal Justice Act 2003 which establishes a presumption in favour of disclosure where the MAPPA authority for that area has reasonable cause to believe that a child sex offender poses a risk of causing serious harm to children and the disclosure of the information about previous convictions is necessary to protect children from serious harm from the offender.
- The CSODS based on the Child Sex Offender Disclosure Guidance (CSOD Guidance).
The CSOD Scheme
The CSODS essentially makes it possible for members of the public (including third parties such as neighbours, grandparents and friends) to ask the police to provide details of a person who has some form of contact with children in order to ascertain whether that person had sexual offence convictions and also whether there was any other relevant information that should also be disclosed. If the individual in whom interest had been registered has child sex offence convictions, poses a risk of harm to the child concerned and disclosure is necessary to protect the child, then under the scheme there is a presumption that the information should be disclosed to the member of the public (paragraph 2.2, CSOD Guidance).
X had a number of convictions for indecent assault towards children and in 1996 was placed on the Register of Sex Offenders for life.
In February 2011, South Yorkshire Police wrote to X informing him that it had decided to adopt the CSODS and that it could potentially affect him if a request was made for disclosure. In June 2011, X began proceedings to quash the CSOD Guidance on which the CSODS was based. X’s claim was based on two grounds:
- The CSOD Guidance did not set out adequate procedural safeguards for an offender where disclosure is made as they were not given an opportunity to make representations relating to disclosure of certain information.
- The CSOD Guidance misstates the test that should be applied by the police when deciding whether to disclose the requested information. There was a presumption of disclosure that failed to recognise the need for a balancing exercise to be undertaken before any decision to disclose was taken.
Lack of adequate procedural safeguards: no opportunity to make representations
X argued that unless there were urgent circumstances or disclosure may put a child at risk then the police were under a duty to allow offenders the opportunity to make representations before disclosure. The reason for this was that the offender’s Article 8 rights under the European Convention on Human Rights could only be protected if such a procedural safeguard was in place (for more information on Article 8, see our practice note).
The High Court agreed with X that there will be some circumstances in which the police will have a duty to seek representations from an offender. Although the fact that there has been a conviction will not be in dispute it may sometimes be the case that details held by the police may be inaccurate or misleading and the only way in which this information could be clarified is by seeking information from the offender.
The High Court held the CSOD Guidance should have required a decision-maker, when faced with a request likely to result in disclosure, to consider whether the offender should be asked whether they would like to make representations. As such, the court made a declaration that the CSOD Guidance should have included this requirement as the failure to do so could render an offender’s protection under Article 8 “nugatory”.
CSOD Guidance misstates the test for disclosure
The High Court then went on to consider whether the CSOD Guidance was unlawful. X argued that the CSOD Guidance set out a presumption in favour of disclosure but did not set out the balancing act required prior to disclosure.
The High Court held that if one were to read paragraph 2.2 of the CSOD guidance in isolation then it would be difficult to argue that the CSOD Guidance was lawful. However, when read alongside the detailed process that should be followed which is set out in paragraph 5.6 15- 16 of the CSOD Guidance then it would seem that the process itself is lawful and compliant with the approach approved in R v Chief Constable of North Wales ex parte Thorpe  QB 396. The High Court went on to hold that in spite of this, paragraph 2.2 had been given unnecessary prominence by appearing under the heading of “Aims” and the CSOD Guidance should be revised to make it clear that the detailed process that should be followed is set out in section 5 of the CSOD Guidance.
Also of interest in this judgment were the High Court’s comments on the numerous guidance documents associated with managing the disclosure of convictions and other information about sex offenders. The existing guidance documents are currently the responsibility of the Ministry of Justice, the Home Office and the Association of Chief Police Officers. The court recommended that:
“There would seem a great deal to be said for producing one document dealing with the disclosure of the convictions of and other information about a sex offender. What is needed is practical guidance covering the various schemes…We would also observe that it should be possible to do this in a much shorter form than the current guidance.”
Following this judgment it appears that sex offenders still retain a right to privacy in relation to information relating to their convictions, a far cry from the laws in the US known as “Megan’s Law” where individual States are able to choose which information about an offender is made public and how local communities are notified about registered sex offenders in their areas.