M, R (On the Application Of) v Secretary of State for the Home Department [2014] EWCA Civ 1651

[2014] EWCA Civ 1651Case No C1/2013/0499
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2012] EWHC 4034 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Lady Justice Hallett D.B.E. and Mr. Justice Collins
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 18 th December 2014
Before
LORD JUSTICE MOORE-BICKVice-President of the Court of Appeal, Civil DivisionLORD JUSTICE TOMLINSONLADY JUSTICE KING
Between
THE QUEENClaimant/THE CHIEF CONSTABLE of HAMPSHIRE CONSTABULARYDefendant/RespondentSECRETARY of STATE for the HOME DEPARTMENTIntervener
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr. Hugh Southey Q.C.(instructed by Fulchers) for appellantMr. Dijen Basu (instructed by Hampshire Police) for respondentMr. Martin Chamberlain Q.C.(instructed by the Treasury Solicitor) for intervener
Hearing Hearing date: 26 th November 2014JudgmentLord Justice Moore-Bick :
[1]In 1997 the appellant, M, was convicted of a number of serious sexual offences in respect of which he was sentenced to four years’ imprisonment. As a result he became obliged to comply with the notification requirements of Part 2 of the Sexual Offences Act 2003 for life. The statutory framework[2]Section 325 of the Criminal Justice Act 2003 requires chief officers of police to establish arrangements for the purpose of assessing and managing the risks posed in their areas by sexual offenders subject to the notification requirements of Part 2 of the Sexual Offences Act. Multi-Agency Public Protection Arrangements, known as “MAPPA”, have been established to discharge that obligation and detailed guidance on the implementation of those arrangements (“MAPPA Guidance”) has been issued by the Secretary of State under section 325(8) of that Act. The central purpose of MAPPA is to monitor registered sexual offenders in order to detect any signs of renewed offending or preparations being made for further offending. In order to achieve that end MAPPA Guidance suggests that offenders should be visited in their homes at regular intervals, more or less frequently depending on the level of risk they are deemed to pose: low risk offenders once a year, medium risk offenders every six months, high risk offenders every three months and very high risk offenders every month. Guidance issued by the Association of Chief Police Officers suggests that, in order to avoid drawing attention to such visits, in all but exceptional circumstances they should be carried out discreetly by plain clothes officers in pairs using unmarked police vehicles.[3]In 2006 Parliament passed the Violent Crime Reduction Act which, by section 58, introduced into Part 2 of the Sexual Offences Act 2003 a new section 96B, which makes provision for the police to obtain warrants to enter and search the homes of those who are subject to the notification requirements. The material parts for present purposes provide as follows: “96B Power of entry and search of relevant offender's home address(1) If on an application made by a senior police officer of the relevant force a justice of the peace is satisfied that the requirements in subsection (2) are met in relation to any premises, he may issue a warrant authorising a constable of that force– (a) to enter the premises for the purpose of assessing the risks posed by the relevant offender to which the warrant relates; and (b) to search the premises for that purpose.(2) The requirements are— (a) that the address of each set of premises specified in the application is an address falling within subsection (3); (b) . . . (c) that it is necessary for a constable to enter and search the premises for the purpose mentioned in subsection (1)(a); and (d) that on at least two occasions a constable has sought entry to the premises in order to search them for that purpose and has been unable to obtain entry for that purpose. . . . (6) The warrant may authorise the constable executing it to use reasonable force if necessary to enter and search the premises.” (a) to enter the premises for the purpose of assessing the risks posed by the relevant offender to which the warrant relates; and (b) to search the premises for that purpose. (a) that the address of each set of premises specified in the application is an address falling within subsection (3); (b) . . . (c) that it is necessary for a constable to enter and search the premises for the purpose mentioned in subsection (1)(a); and (d) that on at least two occasions a constable has sought entry to the premises in order to search them for that purpose and has been unable to obtain entry for that purpose. . . .[4]By section 80(2) of the Sexual Offences Act 2003 a person for the time being subject to the notification requirements of Part 2 is a “relevant offender”. The appellant is therefore a relevant offender for the purposes of section 96B and will remain one for as long as he remains subject to the notification requirements. In his case the notification requirement will apply for the rest of his life, unless he can establish that he no longer poses a risk to society. By virtue of section 91A of the Act it is possible after the expiry of fifteen years to make an application for exemption from those requirements, and if the appellant were to succeed in such an application the power given by section 96B would cease to exist in relation to him. A “senior police officer” for the purposes of section 96B is a constable of the rank of Superintendent or above.[5]On several occasions following his release from prison the police visited the appellant’s house informally (i.e. otherwise than pursuant to a warrant) and were allowed entry. On one occasion he asked them to leave after a short time and they did so, thereby bringing the visit to an end. It has not been suggested that the police forced their way into his home on any occasion or that they acted improperly once there, but it is said that the appellant did not truly consent to their entry because his will was overborne by the knowledge that, if he refused to let them in, they would be able to obtain a warrant under section 96B. The proceedings below[6]In September 2011 the appellant began proceedings for judicial review seeking, among other things, declarations that the powers contained in section 96B can be used only if there is a reasonable suspicion of offending, that a warrant can be sought under that section only if the person whose house is to be searched is given notice of the proceedings and (alternatively) that section 96B is incompatible with article 8 of the European Convention on Human Rights. He also claimed damages in respect of the informal visits to his home on the grounds that they involved a breach of his Convention rights. In the grounds of claim it was said that the issues to which the claim gave rise were(i) whether the legislation was to be read subject to an implicit restriction requiring reasonable suspicion that an offence has been or is likely to be committed,(ii) whether the legislation was incompatible with article 7 of the Convention (because in the appellant’s case it imposed more onerous conditions on him than those which could have been imposed at the time of his conviction and so amounts to a retrospective penalty) and(iii) whether the appellant had a right under articles 8 or 6 of the Convention to make representations before any warrant was sought to enter his home. It is fair to say, however, that the appellant’s grounds also contained an assertion that informal visits by the police to his house involved a breach of his rights under article 8.[7]In December 2012 the matter came before the Divisional Court. The appellant’s arguments were directed primarily to the three questions identified in the grounds of claim, which are concerned with the nature of the powers given by section 96B and the procedure by which they may be invoked. However, counsel for the appellant also submitted that informal visits to his home involved a breach of his rights under article 8 because they were not truly consensual. It seems to me that those two limbs of the case raised quite separate and distinct questions which unfortunately do not appear to have been articulated with the clarity they deserved.[8]The court held that section 96B contained adequate safeguards to render the interference with the article 8 rights of offenders to whom it applies proportionate and thus compliant with the Convention. Consequently, it did not need to be read down. The court also held that the informal visits which the police had made to the appellant’s home, both before and after the enactment of section 96B, were consensual.[9]Having been refused permission to appeal by the Divisional Court, the appellant made an application to this court. Permission was granted in relation to two points only:(i) whether, insofar as article 8 is engaged at all, informal visits by the police to an offender’s home are not in accordance with the law, within the meaning of article 8.2 of the Convention and(ii) whether the absence of a procedure enabling an offender to seek exemption from the operation of section 96B separately from the notification requirements is disproportionate and constitutes an unlawful interference with his rights under article 8. The issues before this court are therefore narrower than those which the Divisional Court had to consider.[10]Mr. Hugh Southey Q.C. for the appellant accepted, as he had to, given the limited grounds on which permission to appeal had been granted, that section 96B was not in itself incompatible with article 8 of the Convention. He submitted, however, that informal visits by the police involved an unlawful interference with the appellant’s Convention rights, because the very existence of the power to obtain a warrant if they were refused entry was sufficient to prevent such visits from being truly consensual. The entry of the police into the appellant’s home otherwise than with his informed consent freely and unequivocally given was an unlawful intrusion and thus a violation of his rights under article 8. That led him to submit that section 96B was for that reason incompatible with the Convention, but for the reasons I have given a challenge of that kind was not in my view open to him. Mr. Southey also submitted that section 96B imposed a substantially greater burden on an offender than the notification requirements and that the absence of any procedure for reviewing its application separately from those requirements involved a disproportionate, and therefore unlawful, interference with his rights.[11]Mr. Dijen Basu for the Chief Constable and Mr. Martin Chamberlain Q.C. for the Secretary of State both submitted that informal visits, when the police ask for and obtain permission to enter and search an offender’s home, are truly consensual and that even if the offender is persuaded to give his consent wholly or in part by a reluctance to provide the police with grounds for seeking a warrant, the interference with his article 8 rights is lawful. That is because it is in accordance with the law and necessary, both in the ordinary sense and in the Convention sense of meeting a pressing social need and being proportionate to the legitimate aim of protecting vulnerable members of society from sexual predators. They submitted that the scheme contained in Part 2 of the Sexual Offences Act 2003 should be viewed as a whole, rather than by reference to its individual constituents. They pointed out that there is now available to those who would otherwise remain within the scheme for life a means of obtaining exemption if they no longer pose a threat to society. If a person in the position of the appellant can satisfy the police that he no longer poses such a threat, he will cease to be subject to the notification requirements and section 96B will automatically cease to apply in respect of him. Viewed overall, the scheme is a proportionate response to the serious risks posed by sexual offenders. Informal visits[12]Since it forms the main basis of the appellant’s argument, it is convenient to remind oneself of the terms of article 8, despite the fact that it is so well known. It provides as follows:
“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.”
[13]It has long been established that the police have no right at common law to enter and search a person’s home against his will, unless they have a warrant or statutory authority. However, as Mr. Southey accepted, a person can consent to acts which would otherwise involve an infringement of his rights, whether at common law or under article 8 of the Convention. In Millar v Dickson [2001] UKPC D4, [2002] 1 W.L.R.1615 the question for the court was whether the accused in criminal proceedings in Scotland before a temporary sheriff had waived their right under article 6 to an independent and impartial tribunal. The question arose in that surprising form because it had been held in an earlier case that a temporary sheriff, being appointed by the Lord Advocate for a limited period and therefore without security of tenure, was not truly independent of the executive. Lord Bingham said:
“31. In most litigious situations the expression “waiver” is used to describe a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise.”
[14]Although the court was concerned in that case with rights under article 6, this proposition reflects the general law and I see no reason not to apply it to the waiver of rights under article 8. However, it means that the question whether a person waived his right to refuse entry to his home will depend on the facts of the individual case. In one case the offender may be happy to co-operate with the police and therefore willing to allow them into his home regardless of section 96B; in another he may consent only because he does not wish to give grounds for an application under the section and in such a case there may be a question whether he acted voluntarily. It follows, in my view, that it is not possible to accept Mr. Southey’s broad proposition that in all cases section 96B robs the offender of the ability to make a free and informed decision. All that can be said is that the question whether entry by the police involved an unlawful interference with the offender’s rights must be determined by reference to the facts of the particular case.[15]The right which the appellant is said to have waived in the present case takes the practical form of a right to freedom from intrusion by the agents of the state into one’s home. It was not suggested that the appellant was unaware of his right to refuse entry to the police or that his apparent consent was vitiated on that ground; indeed, the fact that he terminated one visit after about a quarter of an hour shows that he knew the position in law. The real question is whether, when he allowed the police to enter his home without apparent objection, he gave his consent voluntarily and unequivocally.[16]In paragraph 34 of Millar v Dickson Lord Bingham accepted as a correct starting point the first proposition on which the judgment below had been based, namely, that if a ground of objection to the qualification of the trial court were not taken as a plea in bar of trial “the omission to do so will be taken to show an intention to abandon or waive the point unless circumstances show that it was not intended to abandon or waive it or that the omission resulted from ignorance or misapprehension which provided a reasonable explanation of the failure to take it.”[17]That provides a clear basis from which to proceed in cases such as the present. It must be assumed for these purposes that the offender is aware, at least in a general way, that the police may apply for (and possibly obtain) a warrant if he refuses to let them in, since if he is not, section 96B has no part to play in his decision to admit them. That knowledge may influence his thinking, but even so it does not follow, in the absence of evidence that the offender felt that he had no other choice, that his will has been overborne so as to render his apparent consent illusory. In many cases the offender will decide, notwithstanding some reservations, that it is in his interests to co-operate with the police and will decide to do so freely, regardless of the threat in the background of an application for a warrant.[18]As the Divisional Court pointed out, the failure of an offender to co-operate with the police will not inevitably lead to the issue of a warrant. There is judicial involvement in the procedure for obtaining a warrant and the application must be made by a senior officer. The statute does not itself say that it must be supported by evidence, but since the court cannot act on any other basis, that is implicit. In G v Commissioner of Police of the Metropolis [2011] EWHC 3331 (Admin) Laws L.J. emphasised that an officer applying for a warrant to enter a person’s home must give full, complete and frank disclosure. The guidance suggests that the officer in question should produce a written statement or report and be present before the magistrate to answer any questions he or she may have. The magistrate must be satisfied that on at least two occasions the police have sought entry in order to search the premises for the purpose of assessing the risks posed by the offender and have failed to obtain it. He must also be satisfied that it is necessary for the police to enter and search the premises for the purposes of assessing risk. The magistrate decides how many times the warrant may be executed and whether reasonable force may be used. There is no reason to suppose that magistrates cannot be relied upon to scrutinise applications of this kind with appropriate care and no reason for offenders to assume that if an application is made it will inevitably be granted. Accordingly, if an offender allows the police to enter his home without objection he will in almost all cases have waived his right, both at common law and under article 8, to refuse entry. Whether the waiver goes beyond that will depend on the circumstances of the case, in particular what has passed between him and the police. Thus, merely by allowing the police into his house he will not necessarily have consented to their entering every room, much less to examining his correspondence or computer.[19]It is quite true that police may make informal visits to an offender at any time without warning, but such visits are not carried out under section 96B, which is therefore not engaged, save to the limited extent already indicated. The evidence does not suggest that the power to do so is widely abused, either in the case of this appellant or generally. The police do not need statutory authority to call on citizens to seek their co-operation or assistance; in that respect they enjoy the same rights as other people. If an offender considers that their visits are too frequent or that the police are acting unreasonably for some other reason, he has other remedies at his disposal. The Divisional Court accepted that the policy of making unannounced visits can impose unwelcome restraints on an offender’s social life, that they carry a risk of disclosing past offending to family and friends, and that the visits themselves may be intrusive (paragraph 27) and that a refusal to co-operate by answering questions may result in the frequency of visits being increased. However, this appeal is not concerned with the remedies for unreasonable behaviour on the part of the police but with whether informal visits to which no overt objections are raised are unlawful because they involve a breach of an offender’s Convention rights.[20]All this points strongly to the conclusion that, as the Divisional Court held, the visits of which the appellant complains were consensual in the sense that he waived his right to refuse the police entry, but Mr. Southey submitted that the position of the offender was analogous to that of a person who applies for an criminal record certificate (or enhanced criminal record certificate) where that is required by an employer. Consent to disclosure of the information which such a certificate contains has been held in those circumstances not to amount to a waiver of Convention rights: see R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3, [2010] 1 A.C. 410 and MM v United Kingdom (Application No. 24029/07).[21]In my view the circumstances of these two cases differed significantly from those of the present case and neither provides much support for Mr. Southey’s argument. L concerned an application for an enhanced criminal record certificate by a person who had applied for a job supervising children in a school canteen and playground. The employer considered such a certificate essential to the employment of a person in such a role and so, as both Lord Hope and Lord Neuberger pointed out, the applicant had no choice but to apply for one and formally consent to the disclosure it entailed. Lord Neuberger said:
“Where the legislature imposes on a commonplace action or relationship, such as a job application or selection process, a statutory fetter, whose terms would normally engage a person's Convention right, it cannot avoid the engagement of the right by including in the fetter's procedural provisions a term that the person must agree to those terms.”
[22]It is clear that the decision turned on the fact that the applicant had no real choice but to apply for a certificate and thereby to consent to the disclosure. To that extent her will was overborne by the circumstances in which she found herself. In my view that cannot be said of the appellant, who for the reasons already given had a choice and exercised it.[23]That approach was followed in MM in which the court was concerned with the storage and release of data relating to a person’s private life, in that case the entry and storage on police records of a caution. The applicant had applied for a criminal record certificate in connection with an application for a job as a health care family support worker with a health and social services trust, for which a certificate was required. The certificate disclosed details of her caution. In paragraph 189 the court agreed with the observations of Lord Hope and Lord Neuberger in L and observed that consent to a request for criminal record data is conditional on the right to respect for private life being respected. The applicant’s agreement to disclosure in that context did not deprive her of the protection afforded by the Convention. However, the court in that case was concerned principally with the systematic collection, storage and processing of personal data. The decision cannot be treated as authority for the proposition that consent can never oust the protection given by article 8. In my view it is concerned with a problem far removed from the present case.[24]In other cases the collection and processing of personal data, (R (Catt) v Association of Chief Police Officers [2013] EWCA Civ 192), the disclosure of previous convictions (R (H and L) v A Council [2011] EWCA Civ 403) and even the risk of inadvertent disclosure of previous convictions (R (F) v Secretary of State for the Home Department [2010] UKSC 17, [2011] 1 A.C. 331) have been considered to involve an actual or potential infringement of article 8 rights. Mr. Southey sought to rely on them as examples of respects in which the actions of the police in connection with, or arising out of, informal visits might infringe the offender’s article 8 rights, but whether there has been such an infringement will depend on the particular circumstances of each case. None of these cases provide any assistance on the question whether informal visits of the kind under consideration made with the apparent consent of the offender infringe his article 8 rights.[25]An argument of a different kind, however, was tucked away in Mr. Southey’s skeleton argument, namely, that any informal visit of the kind in question made without the prior consent of the offender infringes article 8, whether the police are allowed into his home or not, because it carries with it a risk that it may lead to the disclosure of the offender’s previous convictions. Although not put at the forefront of his submissions, this seems to me to be the most attractive way in which Mr. Southey was able to put his argument, although it has little to do with section 96B. However, I do not think it can be seriously suggested that it is unlawful for the police to visit an offender’s home with a view to seeking admittance by consent merely because no prior arrangement has been made. I accept that, if the police were to call at the house with unreasonable frequency and in circumstances which were liable to result in the offender’s convictions being disclosed to friends or neighbours, that could amount to an infringement of his Convention rights, but that question does not arise in this case.[26]It follows from what I have said that in my view informal visits by the police to an offender’s home are in accordance with the law. The purpose of such visits is to protect vulnerable members of society from harm. As such, their aim is the prevention of crime and the protection of the rights of others. If they engage article 8 rights at all, therefore, they satisfy the criteria in article 8.2, provided that they are proportionate to that aim. In my view they clearly are. It is necessary to bear in mind that Parliament has placed a duty on chief constables to have arrangements in place for carrying out that very purpose. By enacting section 96B Parliament has recognised that visiting offenders in their homes for the purpose of carrying out searches is a valuable and effective way of achieving that end. The more serious the risk, the greater the care that has to be taken to monitor it. It is not surprising, therefore, that those who pose a higher risk are visited more frequently than those who pose a lower risk. It would be wholly disproportionate and seriously undermine the efficacy of the arrangements for visiting offenders if it were necessary for the police to obtain the approval of a magistrate simply to attend at an offender’s home in order to request entry which the offender could lawfully refuse. For obvious reasons it would also seriously undermine the efficacy of the arrangements if the police were obliged to inform the offender of an impending visit. In this case there is a balance to be struck between the rights of vulnerable people, principally children, and the rights of offenders. It is an area in which the state enjoys a considerable margin of appreciation and it is appropriate for the court to have regard to the way in which Parliament has seen fit to strike that balance: see L, per Lord Neuberger M.R. at paragraph 74. I am unable to accept Mr. Southey’s submission that in order to be proportionate such visits need to be the subject of statutory and procedural safeguards of a kind that would largely rob them of their efficacy. In my view the practice of making unannounced visits to offenders’ homes seeking entry by consent is proportionate and does not involve an unlawful interference with their article 8 rights.[27]Mr. Southey sought to rely in support of the appeal on the fact that the police disclosed information about the appellant’s offending to other members of his family, but disclosure of the offender’s convictions to third parties forms no part of the scheme for regular informal visits and has no bearing on the questions we have to decide in this case. Exemption[28]The second ground of appeal is whether section 96B is incompatible with the Convention because there is no provision for an offender to obtain exemption from its provisions separately from the notification requirements. The Divisional Court held that the notification requirements and the provisions for assessing continuing risk are part of a single scheme for the protection of vulnerable persons from sex offenders. I agree that is what Parliament must have intended when it added section 96B to Part 2 of the Sexual Offences Act 2003. Mr. Southey submitted that the system of informal visits coupled with the provisions of that section interfere with the offender’s article 8 rights to a greater extent than do the notification requirements. That may or may not be so; in truth, it may vary from case to case. In my view the question we have to decide is whether the scheme as a whole is disproportionate because it does not provide for exemption from one constituent part. In my view it is not. Viewed as a whole the scheme provides for notification of certain matters coupled with monitoring of behaviour by means of informal visits which to a large extent depend for their efficacy on the co-operation of the offender. That part is reinforced by a statutory provision for compulsory searches, subject to judicial oversight and safeguards which are capable of ensuring that the power is used only when necessary and in a proportionate way. If an offender no longer poses the kind of threat that makes it necessary for him to be subject to the notification procedure, he can be excluded from the scheme as a whole. If he does pose such a risk, he is unlikely to be suitable for exemption from the monitoring by means of informal visits and (in appropriate cases) authorised searches. I do not think that the invasion of privacy resulting from the monitoring element of the scheme is so much greater than that resulting from the notification element that separate provision for exemption from the former needs to be made in order to achieve proportionality.[29]For those reasons I would dismiss the appeal.

Lord Justice Tomlinson :

[30]I agree.

Lady Justice King :

[31]I also agree.