This is the question now facing the Divisional Court following Mr Justice Hickingbottom giving permission to bring a challenge to the government over the new provisions which came into force over the summer.
The new regulations provide for a number of changes to the notification regime. Whilst some might be regarded as unrealistic and with little prospect of being effectively managed by the police, they don’t cross the threshold in terms of breach of an individual’s rights.
For example, regulation 3 provides for notification for foreign trips of any duration (under the previous regime a trip had to be notified if it was for three or more days) and regulation 6 provides for much more information about forthcoming trips. Other provisions also deal with notification over temporary residence in other households and disclosure of identification documents.
Whilst those subject to the notification regime might regard these additional requirements as a further onerous set of requirements, it is difficult to argue that these additional obligations outweigh public protection concerns in safeguarding children.
Society might consider that there is absolutely nothing wrong with extra scrutiny of those on the Register and is in accordance with a safe approach to the risk of these offenders to children and vulnerable persons.
The Regulatory Impact Assessment suggests the Government’s overall approach is to:
‘Provide the police with important intelligence, allowing them to manage registered sex offenders more effectively and robustly, and prevent them from exploiting gaps in existing legislation to cause harm in both the UK and overseas.’
Assumptions, not statistics
However whilst this might be deemed an admirable aim as the same assessment notes:
‘Generally it has not been possible to quantify the benefits of the policy as it is not possible to quantify the impact that the notification requirements have on offending.’
What then is the actual impact and the financial implications for the proposed changes? As a starting point the total transitional costs are conservatively estimated at £1.2m. The total quantifiable costs of the policy are estimated as between £7.9m to £9.5m.
‘Quantifiable’ is the key word because the impact assessment accepts that there are a large number of variables and equally many of the risks are based upon assumptions rather than being driven by actual statistics.
Whilst it might be unquestionably accepted that for example the provisions aimed to narrow those with no fixed abode evading scrutiny might save police time this ignores the fact that this will only add a level of increased administration in keeping track of them and the new provisions will, if fully adopted, lead to a considerable drain on police resources.
Before leaving the statistics it might be worth pausing to consider case costs of bringing these cases, which are quite revealing in terms of any cost-benefit analysis. For example, for an individual case heard in the Crown Court the cost of defending a hearing is £9,800. Some 65% of cases result in a custodial sentence but the sentences are limited with an average sentence of 7.6 months in the Crown Court and 2.5 months in the Magistrates’ Court.
There are then the associated costs of housing individuals for the short additional sentences they serve estimated at £250,000 per year and licence costs to the probation service of £2800 per place per year.
As a result there is a considerable cost burden to bringing any prosecution for breach of the Sex Offenders Register and this needs to be placed in the balance when assessing whether these new regulations might amount to an over regulation without sufficient empirical evidence of necessity. Simply put do the costs of enforcing these new regulations meet the benefits said to be obtained.
Two final statistics from the impact report are revealing. Firstly that there are 53,501 Sex Offenders registered on the Violent and Sex Offender Register (ViSOR) of which 28,667 are subject to indefinite notification. The figures are (according to the Multi-Agency Public Protection Arrangements data) increasing by 4% per annum.
Secondly whilst the thrust of the new regulations are to deal with foreign travel it is conceded in the Impact Assessment that ‘the number of offences committed overseas by sex offenders subject to notification requirements in England and Wales is not known as data in this area is poor’.
Instead the Government has sought to rely on notional evidence from groups such as the child protection charity ECPAT UK who themselves concede on their website that it is ‘impossible to estimate how many children have been affected by child sex tourism’. ‘The covert and criminal nature of child sex crimes and the vulnerability of children, especially children living in poverty, make data collection a difficult task.’
The most draconian of the new arrangements (regulation 12) requires those on the register to disclose details of their bank accounts and credit cards. The provision, according to the impact assessment, is based on anecdotal evidence from Scotland indicating that the retention of the data may assist in detecting missing offenders.
There are a number of concerns over these provisions – apart from the fact that it is badly drafted and doesn’t give any consideration to building society accounts, other forms of accounts or credit cards in quickly evolving financial institutions who regularly change credit cards or bank account products.
There is absolutely no evidence advanced which would suggest that the use of such accounts by an offender who has gone ‘off radar’ is likely to be realistic or in any way speed up the enquiries which the police would take. The police have been quick off the mark writing to those on the register suggesting they were entitled to see all their financial information and it seems an after-thought that the police might use it if they abscond. There are examples of the police not exactly being the best at safeguarding such sensitive financial information.
However the fundamental concerns here are more than bad drafting or ill thought out legislation. But rather whether these provisions are draconian and will only lead to a fundamental invasion of privacy.
There is simply no evidence – other than anecdotal material – that these provisions could bring any benefit in safeguarding. It is difficult to envisage what proper foundation there is for these measures to be introduced when balanced against the Article 8 rights of an individual to a private life in accordance with the European Convention of Human Rights. Whilst today the issue only affects Sex Offenders, who will be subject to such provisions tomorrow?
The divisional court will have to ask itself in due course in accordance with de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69:
‘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.’
Further we already know that the Supreme Court (in R (F & Thompson) v SSHD  2 WLR 992) has held that the indefinite registration system is incompatible with article 8 and the Government has been forced to establish a system now for review. An individual might legitimately prefer not to provide the relevant details to others, including agents of the state, for the simple reason that he has an expectation of his private life being private, which is what Article 8 is intended to guarantee.
A bank account may reveal all sorts of information that an individual may not want to reveal not necessarily because of some ill intent but because, in a democratic society, they would prefer to maintain his privacy.
Further, the disclosure of such details plainly carries with a risk of them falling into the wrong hands or being misused to his detriment (which Lord Phillips in F & Thompson held to be a relevant consideration in the Article 8 balancing exercise).
It is worth remembering also that within the band of Sexual Offenders there are many different types of cases. It is questionable how some of these cases could ever come close to warranting this sort of intrusion by the state. Take for example the offender convicted of an historic offence many decades ago who apart from those convicted offences has led a wholly unblemished life – what possible justification can there be for such scrutiny in a case such like this or for example the teenager convicted of a sexual offence against a fellow under age victim?
Neither of these offenders fit into the description of predatory paedophile (nor the travelling offender ECPAT is worried about). In X ( Birmingham ) v Secretary of State for the Home Department, the divisional court will now consider the case of such an offender convicted of an historic case .
Put simply these provisions are not proportionate and seek to establish the intrusion of the state in circumstances where it is unnecessary and uncalled for. Safeguarding of children must be proactive, focused and delivered in a way in which the precious resources of the state can be applied successfully but in a proportionate and non-intrusive way. This is not a ‘one size fits all’ scenario. We suggest that regulation 12 meets none of those aims. The Divisional Court will hear the case early next year.
Author: Mark Newby
Mark is a solicitor advocate and criminal law specialist with QualitySolicitors Jordans. He is an advisor to the Innocent Network UK and has overturned a number of high profile wrongful convictions – notably the cases of Ian Lawless and Anver Sheikh who overturned his conviction on his third appeal.