In an increasing number of jurisdictions, those convicted of certain kinds of sexual offences will find themselves subject to restrictions and disabilities beyond the fines or custodial sentences imposed on them as punishment for their crimes; impositions which continue to apply to them even after they have served their sentences and potentially for the rest of their lives. The array of measures ranges from notification requirements to limitations on access to certain types of employment (e.g. no contact with children), goods and services (e.g. no or restricted internet access) and leisure activities (e.g. no foreign travel). Offenders' names and addresses may be kept on special police registers and revealed to other state agencies and qualifying members of the public in certain circumstances. Some of these measures are imposed separately and individually (for instance, prohibitions on travelling abroad in so-called foreign travel orders), others apply automatically as a concomitant to the sentence to all qualifying offenders. An example of the latter type of provision can be found in section 82 of the Sexual Offences Act 2003, to the effect that anyone sentenced to 30 months' imprisonment or more for a sexual offence must, for an indefinite period, keep the police notified of his place of abode and of any travel abroad. No provision is made to enable affected offenders to seek a review of these notification requirements.

In R (on the application of F) and Thompson v. Secretary of State for the Home Department [2010] UKSC 17, the Supreme Court held that, in the absence of any possibility of review, this notification regime was a disproportionate interference with a convicted offender's right to private life under Article 8 of the European Convention on Human Rights and declared section 82 incompatible with the Convention on this basis. In the view of the court, while the regime was directed towards the legitimate aim of helping the police in the prevention and detection of crime, it potentially imposed serious burdens on affected offenders. Those burdens were not justifiable in relation to offenders who no longer were a significant risk of reoffending. Since it was logically possible that an affected former sex offender might be able to demonstrate that he no longer posed a risk, to rule out the possibility of review was not only unnecessary in order to secure the effectiveness of the regime but might even undermine it (to the extent that the register could become cluttered with individuals who did not represent a significant risk).

The outcome of this case is certainly the correct one. But automatic notification duties should be curbed even more emphatically than this judgment does. The court is rather too quick to endorse the legitimacy of notification duties in principle. Even if one accepts (as the court does) that the commission of a sexual offence warranting a sentence of 30 months' imprisonment or more may be indicative of a proclivity towards the commission of sexual offences, and that the notification requirements imposed by section 82 may in fact discourage some affected offenders from reoffending and facilitate the identification of the perpetrators of some sexual crimes, the question still arises whether, in order to achieve these beneficial outcomes, the notification requirements must be imposed on every offender currently affected by the scheme. This could be necessary for two different reasons: (1) all affected offenders pose a heightened risk of future sexual offending compared to other members of the population of their age and gender; or (2) only some affected offenders pose such a heightened risk but it is impossible to identify those who do not. The scheme may be adopted in both cases, but an ex-offender's interest in privacy weighs in the balance somewhat differently in respect of either of these assumptions. In (2), the question is whether a burden that may potentially seriously undermine an offender's rehabilitation and future legitimate life in the community should be imposed in a situation where the legislator expects a fair number of “false positives” amongst those affected: individuals who (even though one cannot identify them initially) pose no significant risks. It is not inconceivable that the harm done by the scheme to those affected offenders who pose no significant risk of reoffending, may outweigh the protective benefits to possible future victims (for instance, if the scheme seriously undermines every affected offender's chances of full rehabilitation and a normal post-sentence life, but has no measurable effect in bringing re-offending down or in facilitating the investigation of fresh crimes).

The second underexplored issue concerns the application of the notification scheme to very young offenders. When F, the first litigant in this case, committed the serious sexual offences (including two offences of rape of a six-year-old boy) for which he was sentenced to 30 months' detention in 2005, he was only 11 – an age at which, elsewhere in Western Europe, he would have incurred no criminal liability at all. When the Rugby Football League became aware that he was subject to notification requirements, F was temporarily precluded from attending training or matches involving under-18s. In the description of the impact of the notification requirements on F's sense of self and place in the world (at para. [39] of the Court of Appeal's judgment, [2009] EWCA Civ 792), the debilitating effects of the notification requirements on F's psychological well-being and rehabilitation are palpable. Past studies of juvenile offending behaviour make short shrift of the assumption that the commission of a serious sexual crime by a juvenile is indicative of a proclivity to commit such crimes in the future, let alone throughout their adult lives. The careful review of existing research conducted by Zimring in An American Travesty: Legal Responses to Adolescent Sexual Offending (Chicago UP, 2004) led him to conclude that “[j]udged by their later arrest histories, these juveniles look much more like undifferentiated delinquents than a specialised risk population” (p. 59). Zimring also found that “[t]he great majority of youthful sex offenders are unlikely to re-offend, and are not suffering from extensive clinical disabilities” (p. 67). This should surely lead sensible legislators to agree with Zimring that “[t]he low risk of future sexual misconduct and the low likelihood of serious sexual pathology argue against … permanent classification in stigmatic categories as routine responses to adolescent sexual misconduct” (ibid.).

The question which now faces the legislator is: what type and standard of review enables the lifting of the notification requirements in respect of affected offenders who no longer pose a “significant risk”? Normatively significant can surely only be a risk that is higher than the risk posed by other comparable individuals in the population with no history of proven sexual offending. And the opportunity to reconsider seriously the fairness of extending the notification requirements even to very young sex offenders, to whom the state owes the same duties of care and consideration that it owes to other, non-delinquent children, should not be lost.