The High Court has today handed down an important judgment on the legality of the Government’s Child Sex Offender Disclosure Scheme (CSOD): X(South Yorkshire) v Secretary of State for the Home Department  EWHC 2954 (Admin). CSOD is a non statutory scheme which police forces nationally have been free to adopt since 2010. It enables members of the public to ask the police to provide details of a person who has some form of contact with children with a view to ascertaining whether that person had convictions for sexual offences against children or whether there is other relevant information about him or her which ought to be made available.
X is a registered child sex offender. In February 2011, South Yorkshire Police contacted X and informed him that it had adopted CSOD and that its adoption might affect him. X went on to mount a judicial review challenge to the guidance under which CSOD had been constituted (the guidance). The challenge was brought on two separate grounds. First, it was argued that the guidance did not adequately recognise the imperative for police forces to consult with individual sex offenders prior to disclosing information about them under CSOD. Second, it was argued that because, in its opening paragraphs, the guidance provided that there was a presumption in favour of disclosure, the guidance did not properly reflect the need for a balancing exercise to be conducted prior to any decision to disclose being taken.
On the first of these issues, the High Court, presided over by the QB President and Hickenbottom J, accepted that the guidance did not sufficiently reflect the need to consult with individual sex offenders prior to effecting disclosure. In particular, the court held that:
In the light of the considerations we have set out, it follows, in our judgment, that 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. Whilst each case will turn on its own facts, it is difficult to foresee cases where it would be inappropriate to seek representations, unless there was an emergency or seeking the representations might itself put the child at risk´(§41)
On the second issue, the court held that, notwithstanding the allusion to a ‘presumption’ in favour of disclosure in its opening paragraphs, the guidance did properly incorporate a requirement that the police undertake a balancing exercise which took into account both the rights of the sex offender not to have the information disclosed and the need to protect individual children from harm. The court held that the regime embodied in the guidance properly complied with the approach which was approved
in R v Chief Constable of North Wales ex p Thorpe  QB 396.
The judgment is interesting and important not least because it suggests that the current legal regime governing the disclosure of information relating to sex offenders is still far removed from a ‘Megan’s law’ US-style approach to disclosure. Thus, in contrast with Megan’s law, where the general public are allowed access to details of convicted sex offenders living in a particular area, sex offenders in this country retain a right to privacy in respect of information relating to their offences, albeit that that right may lawfully be interfered with on a case by case basis. 11KBW’s Jason Coppel appeared on behalf of the Home Secretary.