Human rights

Respect for private and family life - police introducing offender-naming scheme - further appraisal to assess scheme's compatibility with convention right

R (Ellis) v Chief Constable of Essex: CA (Lord Woolf Chief Justice and Mr Justice Goldring): 12 June 2003

Essex police introduced an offender-naming scheme, under which they would display posters in Brentwood bearing a photograph of a selected offender, his name, the nature of his offence, the sentence and the words 'If you come to Brentwood to commit crime, expect to do the time'.

Only offenders with 12 months in custody still to serve would be selected; they would have an opportunity to register legal objections and the probation service and social services could submit a written risk assessment before a decision to include an offender was taken.

The claimant sought judicial review of his selection as the first candidate for the scheme, by way of a declaration that the scheme was unlawful on the ground that, among other things, its interference with his rights to respect for private and family life under article 8(1) of the European Convention on Human Rights was not justified under article 8(2) as being necessary in a democratic society in the interests of the prevention of crime or for the protection of the rights and freedoms of others.

On the application, the police accepted that there should be a reappraisal of the claimant's selection, but he asked the court to rule on the lawfulness of the scheme as a matter of principle.

Tim Owen QC and Paul Mylvaganam (instructed by Sanders Witherspoon, Brentwood) for the claimant; Anne Studd (instructed by the Force Solicitor, Chelmsford) for the chief constable.

Held, making no order on the application, that the scheme was a genuine initiative on the part of the police with an objective which was in the public interest, namely to reduce crime and increase public confidence in the effectiveness of the police and the criminal justice system; that, against that, it was necessary to take into account the danger that the scheme would interfere with the rehabilitation of offenders, which was also in the public interest; that whether the operation of the scheme was lawful would depend upon the circumstances of the offenders used in the scheme and how it was operated in practice; that there was a need for further appraisal and monitoring, including a more structured assessment of the risks involved, backed by more information and appropriate professional advice, before it could be assessed whether the possible benefits of the scheme were proportionate to the intrusion into an offender's article 8 rights; that it was necessary to recognise that an offender's family, and in particular any children, also had rights under article 8; and that, accordingly, on the material before it, the court would not grant a declaration that the scheme was incapable of being operated lawfully during a trial period since that depended on the properly investigated circumstances of a specific individual's position.