Supreme Court dismisses appeal challenging Child Sex Offender Disclosure Scheme Guidance


Re: R (on the application of A) v Secretary of State for the Home Department [2021] UKSC 37

The Supreme Court unanimously dismissed this appeal concerning the standards to be applied by a court on judicial review of the contents of a policy document or statement of practice issued by a public authority.

The Appellant, A, is a convicted child sex offender. The Secretary of State for the Home Department set up the Child Sex Offender Disclosure Scheme in 2010 in order to co-ordinate the approach of police forces responding to requests for information from members of the public about the sex offending history of a person who deals with children. Set out in the Child Sex Offender Disclosure Scheme Guidance, the guidance had been amended after a previous successful judicial review by A in 2012 to include a new para 5.5.4 to remind police to consider whether any person about whom disclosure might be made should be given the opportunity to make representations about that.

The appellant now challenged the revised version of the Guidance on the basis that it does not go far enough to explain the circumstances in which a police force, when approached for information regarding a person about whom concerns are raised relating to their contact with children, is obliged in law to seek representations from the person before disclosing any information

HELD: Appeal unanimously dismissed.

The Court found that the Guidance was lawful when assessed against test set out in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. When reading the Guidance as a whole, no part of it can fairly be construed as giving a misleading direction. It is not unlawful simply because it does not spell out in fine detail how the police should assess whether to seek representations in a particular case. The Court rejected the appellant’s submission that the Guidance is unlawful because it fails to comply with standards of certainty, predictability in application and accessibility which are implicit in the concept of ‘law’ as it is used in Article 8(2) ECHR. The Court also held the Guidance does not offend against other legal principles on which the appellant sought to rely including inherent unfairness/access to justice, significant risk, legislative rules and policies.

Hugh Southey QC was involved in this case.