In X (South Yorkshire) v Secretary of State for the Home Department & Anor [2012] EWHC 2954 (Admin), the Administrative Court has declared that, in certain limited respects, the Child Sex Offender Disclosure (CSOD) Scheme affords insufficient protection to a convicted child sex offender’s right to privacy under ECHR Article 8. There were two aspects of the CSOD Guidance that caused the Court concern.

Firstly, as per its finding at paragraph 41,

“the CSOD Guidance ought to have set out 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.”

As a result, the Court found that the current Guidance sets out a procedure that, in some cases, may well result in a person’s Article 8 rights being rendered “nugatory”.

Secondly (see paragraph 46-48 of the judgment), that paragraph 2.2 of the guidance contains the incorrect assertion that, “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.”

There is no such presumption: the introductory paragraph 2.2 is contradicted by paragraphs 5.6.15 and 5.6.16, which set out clearly and carefully the process which must be followed. The Court endorsed this detailed process, which starts with the general presumption that details of an offender’s previous convictions and other information are confidential.

The police can therefore only disclose an offender’s previous convictions and other information if -

  1. disclosure to the applicant is necessary to protect the child from being the victim of a crime by that offender,
  2. there is a pressing need for such disclosure,
  3. interfering with the rights of the offender under Article 8 is necessary and proportionate, and
  4. the disclosure is in accordance with the eight principles set out in the Data Protection Act 1998.

Where does this leave the CSOD Scheme?

The Court has indicated that in the two areas set out above, the guidance will need to be amended. However, in the meantime the scheme continues to operate (see paragraph 43 of the judgment). Pending agreement – and the Court’s endorsement – as to any changes to the document containing the CSOD scheme and accompanying guidance, decisions taken under the scheme must take account of this judgment.

The Court also observed that a single, coherent (and shorter) set of practical guidelines, covering disclosure under both the CSOD scheme and the MAPPA scheme arising under s.325(8A) of the Criminal Justice Act 2003, would be of great benefit. Whether this observation is heeded will remain to be seen.