MINTER v. THE UNITED KINGDOM
Inadmissible
Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
1. The applicant, Mr Martyn Minter, is a British national, who was born in 1975 and lives in Hampshire. He was represented before the Court by Mr P. Rule, counsel, a barrister practising in London. 2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Sagoo of the Foreign and Commonwealth Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. When a person is sentenced to a determinate term of imprisonment, the normal practice is for that person to be released “on licence” after serving half of the sentence. The licence period usually lasts for the remainder of the sentence and during this period the person may be recalled to prison if he or she breaches the conditions of the licence. 5. When an offender is convicted of certain sexual or violent offences, the sentencing court may pass an “extended sentence” (see paragraphs 2326 below). In such cases, if the offender is sentenced to a determinate term of imprisonment he or she is usually released after serving half of that sentence. However, an additional licence period known as “the extension period” takes effect after the normal licence period ceases. This extension period can be of such length as the court considers necessary to protect members of the public from serious harm. 6. In England and Wales persons convicted of certain sexual offences are required to notify the police of various personal details. This includes the person’s current address, any change of address and any other address at which they stay for seven days or more. They must provide their national insurance numbers to the police and must allow the police to take their photograph and fingerprints for the purpose of verifying their identity. They must also give advance notice to the police of any foreign travel. 7. These notification requirements were first enacted in the Sexual Offences Act 1997 and subsequently re-enacted, with minor amendments, in sections 80–92 of the Sexual Offences Act 2003 (“the SOA 2003” – see paragraphs 27-31 below). The notification period varies according to the term of imprisonment imposed on the offender. For a person sentenced to a term of imprisonment of between six and thirty months, it is ten years from the date of conviction, but for a person sentenced to a term of imprisonment of thirty months or more it is indefinite. 8. In R v. S (Graham) [2001] Cr App R 111 the Court of Appeal, in observations which were subsequently treated as obiter, expressed the view that on plain construction the phrase “term of imprisonment” in the SOA 2003 did not include a sentence of extended licence. However, in R v. Wiles [2004] 2 Cr App (S) 467 the Court of Appeal held that in this respect R v. S (Graham) had been decided per incuriam and was wrong. In determining the length of the “qualifying sentence” for the purposes of making an order disqualifying an offender from working with children, the Court of Appeal found that the whole length of the extended sentence had to be taken into account. 9. On 16 August 2006 the applicant pleaded guilty to six offences of taking indecent photographs of a child, five offences of voyeurism and one of indecent assault. The maximum penalty for the offences of taking indecent photographs of a child and indecent assault was ten years’ imprisonment. 10. On 17 November 2006 the applicant was sentenced in respect of the most serious of the offences to an extended sentence. This extended sentence comprised a custodial term of eighteen months and an extension period of thirty-six months. Lesser sentences were imposed for the other offences. The sentencing judge gave the applicant credit for his early guilty pleas, his previous absence of any criminal convictions, his genuine remorse and his disgust at his own behaviour. 11. On 17 August 2007 the applicant was issued with a notice by the prison at which he was detained stating that he would be subjected to the sex offender notification requirements for a period of ten years. However, the notice warned that it was “not a complete statement of the law.” It went on to add: “It is suggested that you confirm this with the police when you make your notification on release from imprisonment. It is your responsibility to check this if you are not certain.” 12. The Chief Constable of Hampshire subsequently notified the applicant by letter of 22 September 2010 that he would be subjected to the notification requirements indefinitely. The Chief Constable reasoned that the applicant had been sentenced to a term of imprisonment of more than thirty months since the extended sentence was one of fiftyfour months (the custodial term of eighteen months plus the extension period of thirty-six months). 13. The applicant disagreed with the Chief Constable’s interpretation of the relevant statutory provisions. He considered that, when calculating the term of imprisonment, only the custodial term should have been counted and, given that this was less than thirty months, the notification period should only have been ten years. Accordingly, in December 2010 he sought judicial review of the Chief Constable’s decision. 14. In the course of the judicial review proceedings, the applicant also submitted that the legal framework in respect of the notification requirement lacked the degree of clarity and certainty required to be “in accordance with the law” within the meaning of Article 8 of the Convention; and that the Chief Constable’s interpretation of the relevant legislation constituted a disproportionate interference with his right to respect for his private life under that Article. He further submitted that there had been a breach of Article 14 taken in conjunction with Article 8 of the Convention because, after he had been sentenced, the sentencing regime had changed so that for persons sentenced after 14 July 2008 an extended sentence was no longer available unless they either had a previous conviction for a serious offence or the custodial term was at least four years’ imprisonment (see paragraph 26 below). As a consequence, someone in his position sentenced under the new sentencing regime would not receive the extended sentence he received. 15. In support of his Article 14 argument, the applicant relied on Clift v. the United Kingdom, no. 7205/07, 13 July 2010, in which the Court had accepted that the different treatment of different categories of prisoners depending on the sentences imposed on them was based on “other status”. 16. By judgment of 28 June 2011 the Divisional Court dismissed the applicant’s claim. Having reviewed both the domestic legislation and caselaw, it considered “it plain that the entirety of the extended sentence is a sentence of imprisonment ‘in respect of the offence’ for which it is imposed”. 17. Therefore, in respect of Article 8, the court held that the legal framework was sufficiently certain to satisfy the “in accordance with the law” requirement. Furthermore, as the purpose of the extension period was to manage and reduce the risk posed by an offender it was proportionate for the extension period to be included in any calculation of the notification period. The legislature had been entitled to fix the threshold for indefinite notification at thirty months. In doing so, it had struck a fair balance for the purposes of Article 8 of the Convention. 18. In respect of Article 14 taken in conjunction with Article 8, the court considered itself bound by the House of Lords’ judgment in R (Clift) v the Secretary of State for the Home Department [2007] 1 AC 484, which had ruled that the treatment of prisoners based on differences in length of sentence did not constitute differential treatment on the ground of “other status”, even though in Clift v. the United Kingdom this Court had subsequently reached the opposite conclusion. In any event, the Divisional Court found it “difficult to see how changes in the legislative regime referred to, affecting those sentenced at different dates, could give rise to discrimination”. 19. The Court of Appeal unanimously dismissed the applicant’s appeal on 1 May 2013. It upheld the Divisional Court’s finding that the prison term for the purpose of ascertaining the notification period was the aggregate term of the extended sentence. In this regard, it noted that “the Divisional Court was, with respect, plainly right on the short ground that the statutory language permits no other sensible conclusion”. 20. In respect of Article 8, the applicant had submitted that the imposition upon him of an indefinite notification requirement had been arbitrary and disproportionate. However, the court found that, given the purposes of the notification requirement and of extended sentences, there was nothing “arbitrary” or disproportionate in the imposition of an indefinite notification requirement in the applicant’s case. Moreover, it would, in time, be possible for the applicant to seek review of the indefinite notification period (see paragraph 34 below). 21. In respect of Article 14 taken in conjunction with Article 8, the court observed that all that had happened was that Parliament had altered its views as to the threshold for indefinite notification requirements. That did not generate retrospectively a good Article 14 argument. Furthermore, Laws LJ considered that the Court of Appeal, like the Divisional Court, was bound by the House of Lords’ judgment in R (Clift) v the Secretary of State for the Home Department. 22. On 17 March 2014, the Supreme Court refused the applicant permission to appeal. 23. In 2006, when the applicant was sentenced, extended sentences were regulated by section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”) which provided, as relevant: “85 Sexual or violent offences: extension of certain custodial sentences for licence purposes. (1) This section applies where a court — (a) proposes to impose a custodial sentence for a sexual or violent offence committed on or after 30th September 1998; and (b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation. (2) Subject to subsections (3) to (5) below, the court may pass on the offender an extended sentence, that is to say, a custodial sentence the term of which is equal to the aggregate of — (a) the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence otherwise than under this section (“the custodial term”); and (b) a further period (“the extension period”) for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose mentioned in subsection (1) above. ... (4) The extension period shall not exceed —. (a) ten years in the case of a sexual offence; and (b) five years in the case of a violent offence. (5) The term of an extended sentence passed in respect of an offence shall not exceed the maximum term permitted for that offence.” 24. The Criminal Justice Act 2003 (“the CJA 2003”) subsequently enacted new provisions governing extended sentences for offences committed after 4 April 2005. 25. Before an extended sentence may be imposed under the new provisions the court must find that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences (section 226A of the CJA 2003). 26. Further requirements for the imposition of an extended sentence were added as of 14 July 2008. These additional requirements are that the offender must either: (i) have a previous conviction for a serious offence (as defined in Schedule 15A to the CJA 2003); or (ii) have committed an offence or offences meriting a custodial term of four years (section 226A of the CJA 2003). 27. The notification requirements for those convicted of certain sexual offences are now contained in the Sexual Offences Act 2003 (“the SOA 2003”). Section 82 sets different notification periods. For a person sentenced to a term of imprisonment of more than six months but less than thirty months, the notification period is ten years. For a person sentenced to thirty months’ imprisonment or more, the notification period is indefinite. 28. A person subject to the notification requirements is required to give the police his biographical information (his name(s), date of birth, National Insurance number, his home address and any other address at which he regularly resides or stays) as well as any changes to that information (sections 83(5) and 84). Section 85 provides for periodic notification of the information specified in section 83(5). 29. Section 86 requires notification of any travel arrangements outside the United Kingdom, including the date on which the offender will leave, the country (or the first country) to which he will travel and his point of arrival in that country, and any other information which the offender holds about his departure from or return to the United Kingdom or his movements while outside the United Kingdom. 30. Section 87(4) provides that, where a notification is given, the relevant offender must, if requested to do so by a police officer or authorised person, allow the officer or person to take his fingerprints and/or photograph any part of him. 31. By section 91(1) it is an offence to fail, without reasonable excuse, to comply with these requirements. 32. The applicants in R (on the application of F) and Thompson had sought a declaration that in the absence of any mechanism for review, the indefinite notification period under the 2003 Act was incompatible with Article 8 of the Convention. A Divisional Court of the Queen’s Bench Division granted the declaration of incompatibility and the Court of Appeal upheld that decision. The Secretary of State appealed to the Supreme Court. 33. The Supreme Court dismissed the appeal. It accepted that the indefinite notification requirement under the SOA 2003 was capable of causing significant interference with the right to respect for private and family life and, in the absence of any provision for individual review of the requirement, it constituted a disproportionate interference with Article 8 of the Convention. 34. Following R (F) and Thompson, the SOA 2003 was amended so as to make provision for review of the indefinite notification requirement. In respect of England and Wales, the review provisions are set out in sections 91A-F. Pursuant to these provisions, an offender over eighteen years of age can, after fifteen years, apply to the Chief Officer of Police for the area in which he resides for a determination that he or she should no longer be subject to the indefinite notification requirement (section 91B). The offender must satisfy the relevant Chief Officer of Police that indefinite notification is no longer necessary for the purpose of protecting the public or any particular members of the public from sexual harm (section 91C(2)). There is a right of appeal to the local Magistrate’s Court against any negative determination by the Chief Officer of Police (section 91E).