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Are Extended Sex Offender Registration Requirements a Breach of Article 8?

Are Extended Sex Offender Registration Requirements a Breach of Article 8?

The Sexual Offences Act 2003 (Notification Requirements) (England and Wales) Regulations 2012 (referred to hereafter as ‘the regulations’) is a statutory instrument which came into force on 18 August 2012. These regulations reinforce already existing sex offender notification requirements.

Offenders convicted of certain offences are eligible for sex offender registration. This means that they must register certain personal details with the police and inform them if, and when, these details change. Initially, Section 83(5) of the Sexual Offences Act 2003 Act provided that the offender must notify the police of, amongst other things, the following:

  1. Name
  2. Date of birth
  3. National Insurance Number
  4. Home address.

On the one hand, these additional provisions seem to enhance the objectives for sex offender registration, which is to manage sex offenders in the community.

The 2012 regulations extend the existing provisions, stipulating that it is compulsory for individuals subject to the notification requirements under the Sexual Offences Act 2003 to do the following:

  • Notify the police of all foreign travel;
  • If they are not registered as a regular resident of a certain place, or if they have more than one residence, notify the police of the place where they are on a weekly basis or where they can regularly be found;
  • Notify the police if they are living in a household with a child under the age of 18;
  • Notify the police of information as regards passports and identification documentation; and
  • Notify the police of all bank account and credit card details.

The justification for these extended requirements can be found in Reforming the Notification Requirements for Registered Sex Offenders, Home Office 2011, which provides:

It is considered that in addition to strengthening identification provisions and providing valuable information to the police when tracing missing registered sex offenders, providing bank account details would assist the police in investigating offences of accessing indecent images, where payment had been involved. Passport numbers would assist the police in monitoring offenders who travel overseas. (paragraph 1.10)

On the one hand, these additional provisions seem to enhance the objectives for sex offender registration, which is to manage sex offenders in the community. It seems intuitive, for example, that the police should be notified if a convicted sex offender is living with a child under the age of 18. Equally, it seems fair that the police should be notified of all passports and identification documentation, thus avoiding the problem of sex offenders slipping off the register should they change their name. Perhaps the most contentious of these requirements is the mandatory notification of all bank account and credit card details.

Article 8

Article 8 of the European Convention on Human Rights has two limbs:

  • Everyone has the right to respect for his private and family life, his home and his correspondence.
  • 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.
Article 8 of the Convention protects the private life and privacy of individuals (Article 8(1)). Unlike Article 3 (freedom from torture) which is an absolute right, the right to privacy can be legitimately and lawfully interfered with in a narrow range of circumstances (Article 8(2)). Article 8 rights can only be interfered with if it is ‘necessary’ and ‘proportionate’ to do so. Situations in which violations of Article 8 could be lawfully justified include, for example, the detection of crime. Firstly, however, we must determine whether or not bank account details fall within the meaning of ‘private life’.

Perhaps the most contentious of these requirements is the mandatory notification of all bank account and credit card details.

What is ‘private life’?

The European Court of Human Rights has previously held that what constitutes ‘private life’ cannot be the subject of exhaustive definition. In the absence of an all-encompassing definition of what privacy precisely is, the Court has provided some guidance. In Pretty v the United Kingdom [2002] ECHR 427 the Court held that private life encompasses both the ‘physical and psychological integrity’ of an individual. In Mikulić v. Croatia (no. 53176/99) the Court ruled that private life includes ‘social identity’.

Given this guidance on the interpretation of Article 8, it follows that information which is linked to an individual’s personal and private affairs falls within the definition of ‘private life’ for the purposes of Article 8. Bank account details identify an individual and are a component of a person’s private financial matters. Such details are at the heart of an individual’s social security and existence in a capitalist society. It necessarily follows that this information falls within the definition of private life as protected by Article 8.

The Court has also ruled that the storage of data relating to a person’s private life does in fact amount to an interference of private life as defined by Article 8 (Leander v Sweden [1987] 9 EHRR 433). The Court has further qualified this point, stating that how the data is utilised is irrelevant: the mere fact that the data has been stored is an interference with an individual’s right to privacy (Amann v Switzerland [1995] 30 EHRR 843).

Do the extended regulations unlawfully interfere with individuals’ right to private life?

As explained above, Article 8 rights can be interfered with if it is necessary and proportionate to do so. Such interference is lawful. However, if the measures taken are neither necessary nor proportionate, the interference will be unlawful. Given that the regulations are capable of infringing individuals’ rights under Article 8, it must be assessed whether they are necessary and proportionate measures.

The European Court of Human Rights has previously held that what constitutes ‘private life’ cannot be the subject of exhaustive definition.

Article 8(2): are the extended requirements both necessary and proportionate?

As stated in the Home Office’s 2011 publication, the objective of the extended regulations is to assist the police in locating missing sex offenders and in investigating offences of accessing indecent images where payment is involved. This will enable the police to prevent such individuals from committing further offences, and thus protect the public. Assisting in the detection of the access of indecent images through Internet subscriptions or purchases will give effect to this overriding objective of the regulations.

In considering whether an interference with Article 8(1) is necessary and proportionate, an assessment of whether the objective of the interference could be achieved in an alternative, less intrusive way is necessary.

Necessity: what about SOPOs?

Sexual Offences Prevention Orders (SOPOs) are a form of civil order which stipulate a range of conditions which the individual subject to the order must adhere to. Breaching a SOPO is a criminal offence and carries a sentence of up to five years’ imprisonment. SOPOs can be drafted in such a way as to regulate and monitor the Internet activity of those who are subjected to it. For example, the order may include the following sorts of conditions:

  • The defendant must not communicate with, or approach by any means, electronically or otherwise, any person under the age of 18, except an authorised person.
  • The defendant must not engage in electronic communication with any person under the age of 16, except an authorised person.
  • The defendant must not visit websites which contain indecent images or any other form of indecent material of any person under the age of 18.

It follows that if the purpose of the extended regulations is to monitor sex offenders’ Internet activity, arguably, the same ends could be achieved by the use of a SOPO. SOPOs can control individuals’ use of the Internet. This would render the notification of bank account details redundant and ultimately unlawful.

Proportionality: misuse of information and lack of adequate safeguards

One concern relating to the storage of sex offenders’ bank account details is related to the lack of regulation as to how this information will be handled. This appears to be a legitimate concern given that the Council of Europe has in fact previously addressed this very issue:

The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of national legislation. (The Council of Europe’s Recommendation (No. R ((87) 15, ‘Regulating the use of personal data in the police sector’, adopted 17th September 1987), 2.1)

Whilst sex offenders have to provide their bank account details, there seems to be no guidance as to how it will be ensured that this information will not be misused. There seems to be no safeguard protecting this information from fraudulent misuse or other abuse, and this is problematic.

Do extended sex offender registration requirements breach Article 8?

Given that bank account details without a doubt fall within the scope of the rights protected by Article 8(1), interference with this right can only be legitimately justified if it is necessary and proportionate to do so (Article 8(2)). Considering that there are less intrusive, but arguably equally effective ways of regulating Internet activity and financial transactions, most notably through the imposition of a SOPO, it cannot be said that the extended requirements are necessary in order to achieve this end. Similarly, considering the level of personal information which bank account records contain, and the lack of any safeguard to protect this information from misuse or fraud, it cannot be said that the extended registration requirements are a proportionate measure.

In addition, the fact that the extended requirements are a blanket policy rather than a policy applicable only to certain offenders whose index offence involved the use of the Internet, the new regulations cannot be said to be proportionate as they fail to consider offenders’ individual circumstances and subject all offenders to the same regime. Ultimately, therefore, the extended regulations potentially amount to an unlawful interference with Article 8.

There seems to be no safeguard protecting this information from fraudulent misuse or other abuse, and this is problematic.

The imposition of the new regulations is capable of being the subject of administrative challenge through judicial review in the courts. Only time will tell if any such challenge will ultimately impact on the Secretary of State’s decision to impose the extended requirements onto registered sex offenders. Permission was granted late last year in an application for judicial review which raised similar issues. The outcome of that claim is yet to be determined.

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