High Court calls for joined-up thinking on disclosure of sex offender information

X (South Yorkshire) v Secretary of State for the Home Department and Chief Constable of Yorkshire  [2012] EWHC 2954 (Admin)- read judgment

The High Court has made an important ruling about the disclosure of information under the Child Sex Offender  Disclosure Scheme (CSOD).

This non statutory arrangement has been in place since March 2010. It  allows members of the public to seek details from the police of a person who has some form of contact with children with a view to ascertaining whether that person has had convictions for sexual offences against children or whether there is other “relevant information” about them which ought to be made available. This request could come from any third party such as a grandparent, neighbour or friend. The  aim of the scheme is described thus:

This is to ensure any safeguarding concerns are thoroughly investigated. A third party making an application would not necessarily receive disclosure as a more appropriate person to receive disclosure may be a parent, guardian or carer.  In the event that the subject has convictions for sexual offences against children, poses a risk of causing harm to the child concerned and disclosure is necessary to protect the child, there is a presumption that this information will be disclosed.

Anya Proops’ post on the Panopticon blog sets out a clear summary and analysis of the ruling by the President of the Queen’s Bench Division and Hickinbottom J. Here are a few more details about the judgment.

Background facts

The claimant, X, was convicted in 1996 of four offences of indecent assault on a child and was sentenced to 4 years imprisonment. He was placed on the Register of Sex Offenders for life.  In 2011 he was informed by the South Yorkshire Police that the CSOD Scheme might affect him. The letter did not seek any observations that the claimant might have about disclosure. It merely informed him of the CSOD Scheme and that his previous convictions might be disclosed under the Scheme.  He therefore began these proceedings against the Home Secretary and South Yorkshire Police to quash the CSOD Guidance, contending that unless there were circumstances necessitating urgent action or where disclosure might put the child at risk, the police were under a duty to afford the offender an opportunity to make representations before disclosure was made. That was because in the circumstances, the rights of the offender under Article 8 could only be protected if such a procedural safeguard was afforded.

The question before the court was twofold; first, whether CSOD Guidance misstates the legal obligations imposed on the person making the decision to disclose, and second, whether the guidance is unlawful as it sets out a presumption of disclosure in its opening paragraphs, thereby failing to reflect the need for a balancing exercise to be conducted prior to any decision to disclose being taken.

The claimant succeeded on the first of these challenges, but not on the second. The court therefore granted a declaration that the Guidance be amended to incorporate a requirement that the decision maker consider, in the case of any person about whom disclosure might be made, whether that person be asked if he wishes to make representations. In the generality of cases without that person being afforded such an opportunity, the decision maker might not have all the information necessary to conduct the balancing exercise which he is required to perform justly and fairly.

The Court’s reasoning

The CSOD Scheme differs from other offence disclosure schemes in that it permits not only previous convictions to be disclosed but other relevant information.

In the case of disclosure of information other than previous convictions the decision maker will have to be satisfied as to its accuracy. It is difficult to see in most cases how he could be satisfied in such cases without ascertaining what the offender has to say about that information. [39]

In the light of the broad reach of the scheme, the CSOD Guidance should require the decision maker consider representations from the subject before making disclosure.

The Court had a more general observation to make about the confusing and sometimes contradictory nature of the various schemes governing disclosure of past offences. The confusion arises from the fact that the content of these various Guidance documents – the MAPPA Guidance, the CSOD Guidance and the Guidance on Protecting the Public: managing sexual and violent offenders - are the responsibility respectively of the Ministry of Justice, the Home Office and ACPO. 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. There is much less of a risk of the right process not being applied if there is one document which carefully explains the circumstances in which each scheme should be used and provides for more “joining up” of the schemes. We would also observe that it should be possible to do this in a much shorter form than the current guidance.

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Related reading:

• Disclosure of sex offender information – Panopticon Blog
• Full internet ban for sex offenders ruled unlawful
• Will the Sex Offenders’ Register “Review Mechanism” breach human rights law?
• When to prosecute children for sexual abuse