On 10 February, the Supreme Court will hear the appeal in R (A) v SSHD. The case concerns the legality of guidance issued under the Multi Agency Public Protection Arrangements (“MAPPA”).
Child Sex Offender Disclosure (“CSOD”) Guidance
MAPPA provide a formal mechanism to secure cooperation between “responsible authorities” – the police, probation and prison services – in the assessment and management of risks posed by violent and sexual offenders. Under section 325(8) of the Criminal Justice Act 2003, the Secretary of State may issue guidance to these “responsible authorities”.
One piece of such guidance is the CSOD Guidance (“the Guidance”). This provides for a scheme allowing members of the public to make an application about a person who has contact with a child (“the subject”). In response to such an application, the police may disclose information about the subject’s previous convictions.
The scheme contains various safeguards, including a three-stage test that must be satisfied before disclosure is made: (i) disclosure must be necessary to protect a child from being the victim of crime; (ii) there must be a pressing need for such disclosure; and (iii) any interference with the subject’s right to privacy under Article 8 of the European Convention on Human Rights (“ECHR”) must be necessary and proportionate.
The appellant is a convicted sex offender. In March 1992, he was convicted of two offences of indecent assault on a child aged under 14 and sentenced to two years’ imprisonment. On 26 April 1996, he was convicted of three offences of indecent assault on a child under 16 and sentenced to four and a half years.
Prior to this case, the appellant had already challenged the Guidance successfully. In X (South Yorkshire) v Secretary of State for the Home Department  EWHC 2954 (Admin), the Divisional Court declared that the Guidance was unlawful insofar as it did not require the decision maker to consider whether to invite the subject to make representations. Subsequently, new paragraph 5.5.4 was inserted, providing:
“if the application raises ‘concerns’, the police must consider if representations should be sought from the subject to ensure that the police have all necessary information […]”.
The Administrative Court
The appellant brought a fresh challenge, arguing that the guidance remained unlawful as it neither : (i) allowed an individual to apply for exemption from the scheme, nor (ii) contained a presumption in favour of seeking representations in every case from the potential subject of disclosure. On 12 December 2014, Dingemans J dismissed the challenge.
The Court of Appeal
The appellant appealed the judge’s decision on three grounds, all relating to justifiability under ECHR Article 8(2). In a judgment given by Laws LJ on 21 April 2016 ( EWCA Civ 597), the Court of Appeal rejected all three.
Independent supervisory authority
First, the appellant submitted that the scheme is not “in accordance with the law” within the meaning of Article 8(2) as there is no independent supervisory authority to review disclosure and to consider whether a subject should be exempted.
The Court held that the Guidance contained “proper controls on the disclosure of information” to satisfy the requirement that any interference with the Article 8 right is “in accordance with the law”. Article 8 did not confer a “general requirement of an independent overseer”.
Second, the appellant submitted that the scheme should include a presumption that a subject ought to be consulted and have the opportunity to make representations.
The relevant test for the legality of a public scheme where there are complaints concerning a failure to provide proper opportunities for those affected to make representations, is whether the scheme is “inherently unfair” (R (Tabbakh) v Staffordshire and West Midlands probate officer and anor.  EWCA Civ 827).
The Court considered that the test was met. Paragraph 5.5.4, introduced as a result of the appellant’s previous successful challenge, meant that the decision maker must consider whether to seek representations from the subject. Further, the Guidance stipulated that the decision maker was required to consider whether s/he had all the information necessary to make a decision concerning disclosure.
Presumption in favour of disclosure.
Finally, the appellant contested the legality of paragraph 2.2 of the guidance, which provides 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.”
The appellant argued that such a presumption was objectionable on the Article 8 grounds.
The Court rejected the submission, finding it “obvious” that the presumption was limited to very pressing cases. Other than in the specific circumstances outlined in the paragraph, the scheme envisaged a presumption against disclosure.
This case raises interesting questions as to the balance between the protection of the vulnerable and respect for the protection of the subject’s private life. Despite its ruling, Court of Appeal accepted the basic principle in R (L) v Commissioner of Police for the Metropolis  UKSC 3 (at  per Lord Hope) that neither imperative takes precedence over the other.
The Court of Appeal was of the view that the precise parameters of the current scheme achieve the right balance. It remains to be seen whether the Supreme Court will share that view.
This article was published on the UK Supreme Court Blog on 8 February 2021.