Joint Committee on Human Rights Twelfth Report

2 Sexual Offences Bill

Date introduced to the House of Lords

Date introduced to the House of Commons

Current Bill Number

Previous Reports

28 January 2003

House of Lords 68

7th Report

2.1  On the introduction of the Sexual Offences Bill[5] to the House of Lords, Lord Falconer of Thoroton QC made a statement of compatibility with Convention rights under section 19(1)(a) of the Human Rights Act 1998. Explanatory Notes were published (HL Bill 26—EN).

2.2  After initial consideration of the Bill, our Chair wrote to the Minister on 13 March 2003 asking about the human rights implications of four aspects of the Bill: the proposal to make all sexual touching, including consensual kissing, of children under 13 a criminal offence, regardless of the age of the other person and the consent of the child (clause 6); the criminalization of sexual activity between certain people with mental disorders or learning disabilities (clause 33); the mandatory period of notification to the police for young sex offenders (clause 84); and the risk of sexual harm orders (RSHOs) and interim orders (clauses 110 and 113). We also asked for a description of any representations received by the Government in relation to the human rights implications of the Bill.[6] The Government responded in a memorandum from the Home Office.[7] We have given further consideration to the Bill in the light of that response.

Sexual touching of children under 13

2.3  Imposing or threatening criminal sanctions on people who kiss consensually is an interference with their right to respect for their private lives under ECHR Article 8.1. It requires justification under Article 8.2, which requires any interference with the right to be in accordance with the law, and necessary in a democratic society for one of the legitimate aims listed in Article 8.2. To be 'necessary in a democratic society', an interference must be a proportionate response to a pressing social need. We accept that the interference would be adequately in accordance with the law. The questions are (a) whether the interference serves a legitimate aim, (b) whether there is a pressing social need for the interference, and (c) whether the interference is proportionate to the aim pursued.

2.4  Legitimate aim. The Government says that its primary concern is child protection. (It also mentions the protection of morals as a subsidiary objective, but in our view it is unlikely to justify the provisions if they are not justified by child protection considerations.) Children under 13 have the right to be protected from all forms of sexual activity, regardless of the age of the other party. Removing the need to prove lack of consent also protects children under 13 from being cross-examined about their sexual conduct. While age limits are to some extent arbitrary, there are both statutory precedents and social acceptance for treating the age of 13, when a child enters teenage years, as an appropriate dividing point.[8]

2.5  Protecting the rights of others is a legitimate aim under Article 8.2, and we accept that so far as children are specially vulnerable to sexual abuse their rights may be protected by special provision about sexual touching.

2.6  Pressing social need. The Government does not deal expressly with this issue, but we consider that there is a pressing social need to protect children against sexual touching in some circumstances, even if measures to provide this protection interfere to some extent with the right to respect for private life.

2.7  Proportionality. The next question is whether this particular provision is proportionate to the pressing social need. Interference with a right may be disproportionate if, for example, it applies to more cases than necessary, or it interferes more than necessary in those cases to which it properly applies, or it deprives people of the very essence of the right. By its nature, an assessment of proportionality calls for judgment about the best way to balance competing interests: it calls for common sense, an understanding of the impact of the measures in different situations, and an idea of the relative importance of different matters.

2.8  The Government's view is that a total prohibition on all sexual touching, including kissing, of or by under-13s is justified because:

—  many children lack the maturity to understand the nature of sexual activity, and these vulnerable children need to be protected;[9]

—  they need to be protected against young people as against old: research (which the memorandum does not identify) is said to indicate that 'adolescent sex offenders probably account for up to a third of all sex crime and many of these will offend against others of a similar age';[10]

—  the prosecutor would have a discretion, and that is the key to ensuring that clause 6 would be used proportionately, as the prosecutor would have to consider whether there is a public interest in prosecuting, and consider whether prosecution would be compatible with Article 8. It will often not be appropriate to prosecute if provision of support and care through social services would be a more satisfactory way of proceeding;[11]

—  in a field where the protection of children should be the paramount consideration, attempting to formulate the law in a more targeted way could produce gaps and anomalies, as well as losing simplicity.[12]

2.9  The Government's position has the merit of convenience, and facilitates simple drafting of the Bill. It avoids leaving gaps in the protection offered to vulnerable children through under-inclusive legislation.

2.10  On the other hand, we find it unpersuasive as an argument on proportionality. Proposition (a) in paragraph 17 above is unexceptionable, but it does not follow, as suggested in proposition (d), that a blanket ban on all sexual touching is justified. It is of the essence of Article 8.2 that one should attempt to target legislation so that it reflects a proper balance between the rights and interests affected by it. The Government does not suggest that it would be impossible to do this, but it prefers not to try, in case the legislation fails to cover every conceivable case in which one might want to prosecute. Instead of striking a proper balance, this approach in effect refuses to take on the task, leaving it to the discretion of prosecutors to make sure that the legislation does not systematically violate people's rights. As we have frequently said in earlier reports, official discretion should not in general be regarded as offering satisfactory protection against violation of rights.

2.11  This is particularly important in the context of the creation of criminal liability. It is a fundamental principle of the uncodified constitution, as well as of human rights law, that in a free society legislation imposing criminal liability must be justifiable, and that criminal offences must so far as possible be framed in such a way as to impose liability only when doing so is justifiable. That allows people to depend on the rule of law, with its emphasis on the legal enforceability of legal protections for rights, to safeguard them against unjustified imposition of criminal liability. Creating catch-all offences, and then relying on the prosecutor's discretion to sort things out satisfactorily, undermines this. It leaves prosecutors to do the job that Parliament should be doing, and gives them discretion to prosecute (or not to prosecute) people who ought never to have been within the scope of criminal liability in the first place.

2.12  Even if we trust prosecutors to approach the use of their discretion properly, it would not adequately protect people against infringements of their rights resulting from the application of the legislation. Children may be arrested for fairly trivial offences. They may be subjected to reprimands and final warnings under the provisions of sections 65 and 66 of the Crime and Disorder Act 1998 (as amended by section 56 of the Criminal Justice and Court Services Act 2000). If they receive a final warning for a sexual offence, they are automatically required to register under the Sex Offenders Act 1997. That could blight their lives. All this can happen in cases which do not lead to a prosecution. The discretion of the prosecutor does not offer any protection against rights being violated as a consequence of the application of sexual offences legislation. There are reported examples of cases in which relatively minor forms of indecent behaviour have produced these consequences for children.[13] The position would be far more dangerous under clause 6, which contains no requirement for the touching to have been indecent and takes no account of the consent of the parties.

2.13  So far as proposition (b) in paragraph 17 above is relevant to the question of proportionality, it is so vague and speculative that it seems to us to add little, if any, weight to the Government's contentions. The Government does not give details about the research on which it relies. This makes it difficult for us to assess its significance for the proportionality of the proposed measures.

2.14  Finally, the Government claims that the Bill would not be imposing any new criminal liability.[14] The Government first asserts that it is not changing the law: it claims that two 12-year-olds consensually kissing each other would currently commit the offence of indecent assault,[15] because a child under the age of 16 cannot consent to an indecent assault.[16] We disagree, for three distinct but related reasons.

2.15  First, to constitute indecent assault, conduct must be both indecent and an assault. Touching which does not cause injury is not an assault if it is consensual, and a child can consent to touching of that kind, as she can (from a relatively early age) to certain kinds of medical treatment. Even if kissing could be regarded as indecent, and as capable of amounting to an assault, it is not be an assault if the child genuinely consents.

2.16  Secondly, kissing is not in itself generally indecent. Kissing may become indecent for legal purposes in some circumstances, for example if it is combined with a suggestion of sexual intercourse,[17] or perhaps if it is carried out to gratify some indecent urge or perversion.[18] But simple kissing, even if it constituted an assault (for example, because there was no consent), would not be indecent assault.

2.17  Thirdly, the definition of assault for the purpose of the offence of indecent assault may be limited to hostile or coercive acts. There were suggestions in the House of Lords in R. v. Brown (Anthony)[19] that, in the context of the offence of indecent assault under sections 14 and 15 of the Sexual Offences Act 1956, an act does not amount to an assault unless it involves some element of hostility. This is not universally accepted, and the late Professor Sir John Smith QC claimed that the House of Lords went on to treat so many activities as hostile that it deprived the word of any meaning.[20] Nevertheless, if, under sections 14 and 15 of the 1956 Act, there 'must be some compulsion, hostile act, threat or threatening gesture to constitute an assault', and the child must be reluctant to accept it,[21] consensual kissing would never constitute an assault, and so could never amount to an indecent assault however indecent were the surrounding circumstances.

2.18  For all these reasons, but particularly on the first two grounds, we consider that the Government is wrong to suggest that consensual kissing between people under the age of 16 is currently a criminal offence. This could explain why, as the Government says, there is no recorded case of sections 14 and 15 being used in respect of 12-year-olds consensually kissing.[22]

2.19  Even if the Government's view of the current law is correct, and the Bill would not alter the criminal liability of children, it would be important to subject clause 6 to the same level of human rights scrutiny as other provisions. When the present law of indecent assault was enacted in 1956, the ECHR was in its infancy, and there was no case-law from the Strasbourg Court explaining its requirements. The Committee should seek to ensure that the new legislation will be Convention-compliant, even if the previous legislation did not produce markedly narrower criminal liability.

2.20  In our view, the Government has not established that the impact of clause 6 of the Sexual Offences Bill, imposing liability on children under 13 for all sexual touching whether or not there is consent and whether or not it can properly be regarded as indecent, would be proportionate to a legitimate aim so as to be justifiable under ECHR Article 8.2. The offence seems to us to be over-broad, to impose liability in a way that is not adequately tailored to the legitimate objective, to interfere with the right to respect for private life more than is necessary for that purpose in a democratic society, and to contain insufficient safeguards against violation of the rights. We draw this matter to the attention of each House.

People with mental disorders or learning disabilities

2.21  Clause 33 would make it an offence for any person, including someone with a mental disorder or learning disability, intentionally to touch in a sexual way a person who is unable to refuse because of a mental disorder or learning disability, if the defendant knows or could reasonably be expected to know that the other person is likely to be unable to refuse because of the disorder or disability. This means, in effect, that people who are unable to make or communicate choices about sexual activity are unable ever to enjoy such activity lawfully. It also means that, if they have the necessary knowledge, they might be guilty of an offence if they sexually touch another person with such a disorder or disability.

2.22  The Government accepts that this engages the right to respect for private life under ECHR Article 8.1.[23] The legislation would meet the requirement in Article 8.2 of being 'in accordance with the law'. We agree that, as the Government says, the clause pursues the legitimate aim under Article 8.2 of protecting the rights and freedoms of others, since protecting vulnerable people against sexual abuse is geared to that end. The European Court of Human Rights has said that Article 8.1 imposes a positive duty on states to protect against sexual abuse people who are vulnerable as a result of mental disorder or disability, and has held that failing to make possible recourse to criminal law for that purpose violates Article 8.[24] That being so, we consider that the clause generally is compatible with Convention rights.

2.23  Nevertheless, we asked the Government two questions about these provisions:

—  whether it considered that clause 33 engages the right to respect for private life under ECHR Article 8.1; and

—  if so, why does the Government considered that criminalizing the behaviour, in the circumstances outlined above, would advance a legitimate aim under Article 8.2 and would be a proportionate way of responding to a pressing social need so as to be justifiable under Article 8.2.

2.24  In its memorandum replying to these questions, the Government accepts that the imposition of criminal liability on people who are suffering from mental disorders and disabilities requires further justification under Article 8.2. The Government takes the view that such a person would probably not have the mens rea for the offence, and so could not be convicted, even if he or she were to be fit to plead.[25] The Government also relies on ways of diverting people suffering from mental disorders and disabilities from the mainstream penal system towards medical care, through detention in hospital after an inquiry following a finding of unfitness to plead or by way of a hospital order following a conviction. Finally, the Government draws attention to the discretion of the prosecutor, who would have to be satisfied that any prosecution is in the public interest.[26]

2.25  For reasons explained earlier in relation to clause 6 of the Bill,[27] we are generally reluctant to rely on a prosecutor's discretion to protect rights. But clause 33 seems to us to be far more carefully targeted on its legitimate objective than is clause 6, and the systems for diverting offenders from the penal system are far better regulated by statute in relation to mental health than in relation to child offenders, where agencies have great discretion. As a result, we conclude that clause 33 of the Sexual Offences Bill represents a proportionate response to a pressing social need, and would not be likely to violate Convention rights.

Mandatory period of notification to the police of young sex offenders

2.26  Clause 84(2) would require a person aged over 10 and under 18, who is convicted of a listed sexual offence,[28] to notify his or her whereabouts to the police for set periods. The notification requirement would apply indefinitely if the person is admitted to hospital subject to a restriction order, and if sentenced to life imprisonment or a term of 30 months or more or (in Scotland) a lifelong restriction order. It would apply for a period of five years if the person is imprisoned for between 6 and 30 months and for 3½ years if he or she is sentenced to six months or less. The notification period would be one year following a caution,[29] and 2½ years in the event of a non-custodial sentence being imposed.

2.27  These proposals are within the ambit of two provisions of the UN Convention on the Rights of the Child (CRC). Article 40.1 requires States Parties to recognize children who have violated penal law as having the right to be treated in a way that takes into account the child's age. Article 40.4 provides that dispositions available for dealing with child offenders should aim to ensure that 'children are dealt with in a manner ... proportionate both to their circumstances and the offence'. These provisions bind the United Kingdom in international law, and are sometimes taken into account by judges in the United Kingdom, despite not having been made directly enforceable under national law.

2.28  We asked the Government whether it considered that clause 84(3), with its fixed terms for notification in respect of all children aged between 10 and 17, would take adequate account of their age, and ensure that they are dealt with in a manner proportionate both to their circumstances and the offence, so as to make it compatible with CRC Article 40.1 and 40.4. We drew attention to the fact that children and young people develop fast, mentally as well as physically, during their teenage years.

2.29  The Government replied that the age of the child would have been considered at all stages in the criminal justice process from the decision to charge to the imposition of sentence.[30] Following a conviction, the sentencing process determines whether the notification requirement will apply at all. Imprisonment, in the form of the custodial element of a detention and training order, cannot be imposed on children under the age of 12, and can be imposed on those under 15 only if they are persistent offenders.[31] When passing sentence, the court will have taken account of both the age of the child and the circumstances of the offence; and it is the sentence that determines the period of notification.[32]

2.30  The Government also drew attention to the range of options for diverting young offenders from the criminal justice process before cases get to court. These can be used in all but the most serious cases, and the circumstances of the offender and the offence are taken into account by the agencies which decide how to proceed.[33] Furthermore, a court would be able to make the person with parental responsibility for the offender responsible for complying with the notification obligation on behalf of the child.[34]

2.31  Finally, the Government makes two further points, although in our view they do not help to settle the issue of compatibility with CRC Article 40. It argues that:

—  notification requirements are administrative measures, not penalties, for the purposes of the ECHR.[35] But this is not relevant under Article 40 of the CRC, which refers to treatment of, and the dispositions available for dealing with, child offenders. Article 40 is not limited to criminal charges or penalties;

—  the UN Committee on the Rights of the Child, when examining the United Kingdom's compliance with the CRC in September 2002 or previously, did not raise the issue of a notification period applying to all young offenders as an issue of concern. But the idea of post-release supervision of sex offenders was not introduced until 1992 in England and Wales (1993 in Scotland), and registration and associated notification requirements were introduced only in the Sex Offenders Act 1997, the Crime and Disorder Act 1998, and the Criminal Justice (Northern Ireland) Order 1998. When the United Kingdom submitted its Periodic Report under the CRC in 1999, the systems had barely been put in place, and little was known about their operation and impact. The United Kingdom's Report did not give a high profile to the matter,[36] and the UN Committee might have had other priorities when examining the Report. The UN Committee's failure to raise the issue is at most only weak evidence that the measures are compatible with the CRC.

2.32  On the whole, we accept the Government's view that the package of procedures for deciding how to deal with children who commit sexual offences, taken as a whole, is capable of ensuring that children's ages and circumstances and the circumstances of their offences will be taken into account when deciding the period for which they are subject to a notification requirement.

2.33  We are not entirely satisfied that the system can be relied on to avoid disproportionate burdens on child offenders. A child who is given a reprimand or final warning under the Crime and Disorder Act 1998, section 65, for a sexual offence is automatically subject to a requirement of notification under the Sex Offenders Act 1997. Under the Bill, there would be an automatic one-year notification requirement. This would be imposed without the case ever having been considered by a judge. It is hard to accept that it would always be a fair and proportionate result.

2.34  However, the decision of the Queen's Bench Divisional Court in R. (U.) v. Commissioner of Police of the Metropolis; R. (R.) v. Durham Constabulary[37] has somewhat eased our concern. Police had administered a final warning to each of two 15-year-old boys in respect of alleged indecent assaults. One boy (R.) admitted the assaults. The other one (U.) initially denied the allegations, and admitted them only after he expressed concern about the time it would take to go to court and was told that, if he admitted the offences, he would be given a final warning rather than be prosecuted. After receiving the final warning, he was told that he would have to go on the sex offenders register, and he reasserted his innocence. The court held that the promise that U would be dealt with by way of a final warning was an inducement which vitiated the admission, and accordingly the admission could not form the justification for a final warning.[38]

2.35  Furthermore, both boys made the admissions in interviews conducted before they had been told that any admission might lead to a requirement to register under the Sex Offenders Act 1997. Whereas adults must agree to be cautioned before their cases can be disposed of in that way, the police can give a reprimand or final warning to a child without the child's consent or that of the child's parent or guardian, leading to the automatic imposition of a notification requirement. The Divisional Court held that the decision that a child has committed a criminal offence is the determination of a criminal charge within ECHR Article 6.1. The child is entitled to a fair hearing by an independent and impartial tribunal. That right can be waived,[39] but only if the child decides to waive it in the knowledge of the consequences, including (in the case of sexual offences) the notification requirements.

2.36  As the children and their parents had not been told of those consequences, the court held that they had not validly waived their right to a fair hearing under Article 6.1. The procedure for deciding whether to administer a final warning (or a reprimand, since it has the same effect in relation to notification requirements) had to incorporate arrangements for ensuring that a decision that the child had committed the offence preceded consideration of the appropriateness of a final warning. At the second stage, the child (or his or her parent or guardian) could waive the right to a fair hearing by an independent and impartial tribunal, but informed consent is needed to being given a reprimand or final warning. The consent must be given in the full knowledge of the consequences. Although not included in the Crime and Disorder Act 1998 or the relevant Home Office guidance, the Human Rights Act 1998 required that a procedure for securing these safeguards for Article 6 rights must be provided.[40]

2.37  Taking that judgment into account, we take the view that there are sufficient safeguards to make it very likely that clause 84(2) of the Sexual Offences Bill would operate in a way that would be compatible with Article 40 of the CRC.

Risk of sexual harm orders (RSHOs) and interim orders

2.38  Under clause 110 of the Bill, a chief officer of police would be able to apply to a magistrates' court for a 'risk of sexual harm order' in respect of a person aged 18 or over who the chief officer believes is in, or is intending to come to, that police area, if it appears to the chief officer that (a) the person has on at least two occasions done an act of a sexual nature involving children, and (b) as a result there is reasonable cause to believe that it is necessary for the order to be made. The two or more occasions could have been before the commencement of the provisions. If satisfied of those matters, the magistrates' court would be able make the order. An order of this kind would prohibit, for a fixed period of at least five years, the defendant from doing anything specified in the order if the prohibition is necessary for the purpose of protecting children generally or any child from harm from the defendant.[41] Breach of an order would be a criminal offence.[42] Pending the decision of the court on the application for a RSHO, an interim RSHO could be made under clause 113.

2.39  The orders proposed in under clauses 110 and 113 could seriously interfere with the freedom of movement and action, for a period of at least five years, of a person who might never have been convicted of any offence. They would be very likely to have a catastrophic effect on people's lives and reputations, engaging the right to a fair hearing under ECHR Article 6 and the right to respect for private life under ECHR Article 8.1. A necessity requirement must be met before a RSHO could be made under clause 110(4) and (6), but there is no such requirement in relation to interim RSHOs under clause 113.

2.40  We asked the Government:

a)  whether it considered that an application for the making of an order would involve the determination of a criminal charge for the purposes of ECHR Article 6;

b)  if not, what the Government considered would be the applicable standard of proof in the light of the decision of the House of Lords in R. (McCann) v. Crown Court at Manchester;[43]

c)  whether the Government intended that an order could be made in the absence of the person against whom it is sought, and, if so, what procedural protection would be put in place to ensure compliance with Article 6 requirements, bearing in mind that the making of an order may do harm which could not be remedied by a fair appeal or review hearing; and

d)  whether it would be possible to specify on the face of the Bill the applicable standard of proof and the need for the hearing of an application to be inter partes.

2.41  In its response, the Home Office said that the Government does not consider that the making of a RSHO would involve the determination of a criminal charge within ECHR Article 6. Proceedings would be civil, and the orders would share many of the characteristics of orders such as anti-social behaviour orders (ASBOs) and football banning orders which courts have regarded as civil rather than criminal for Article 6 purposes. The object of the orders is to prevent harm and protect the public rather than to punish offenders. Nevertheless, as with ASBOs the standard of proof would be the criminal standard, in line with the decision of the House of Lords in R. (McCann) v. Crown Court at Manchester.[44]

2.42  We accept that this, coupled with the fact that the court would have to act in accordance with Convention rights unless unable to do so because of primary legislation which cannot be interpreted so as to allow compatible action, would provide a sufficient safeguard against the making of an order in circumstances which would violate Convention rights.

2.43  The Government also explained that the procedure for applying for an interim RSHO is by way of complaint to the magistrates' court. This is governed by sections 51 to 57 of the Magistrates' Courts Act 1980, under which it would not be possible to proceed in the absence of the defendant unless he or she has first been given sufficient opportunity to attend. The Government considers that the inter partes nature of the procedure is clear from the fact that the Bill provides for an application to be by way of complaint. It does not intend to include additional indications on the face of the Bill.[45]

2.44  We accept this, and we welcome the undertaking to make clear in the guidance accompanying the RSHO (which will be available during consideration of those clauses in Parliament) the fact that the procedure is inter partes.[46]

5   HL Bill 68 Back

6   The letter was published as an appendix to our Seventh Report of 2002-03, HL Paper 74, HC 547 Back

7   See Appendix 2 Back

8   Memorandum, paras. 3-5 Back

9   Memorandum, para. 3 Back

10   ibid. (italics added) Back

11   ibid., para. 6 Back

12   ibid., para. 7 Back

13   See, e.g., R. (U.) v. Commissioner of Police of the Metropolis; R. (R.) v. Durham Constabulary [2002] EWHC Admin 2486, [2003] 1 WLR 897, DC Back

14   Memorandum, para. 2, and para. 7, final sentence ('the right course is to maintain the existing prohibitions...') Back

15   Sexual Offences Act 1956, ss. 14 and 15 Back

16   Memorandum, para. 2 Back

17   R. v. Leeson (1968) 52 Cr. App. R. 185 (kissing on face and shoulders with suggestion of sexual intercourse) Back

18   R. v. Court [1989] AC 28, HL, where however the act was not consensual kissing, but non-consensual smacking to gratify the defendant's buttock-fetish; cp R. v. George [1956] Crim. LR 52, where theft of a shoe to gratify a shoe-fetish was held not to make the theft into indecent assault Back

19   [1994] 1 AC 212, HL Back

20   Smith and Hogan's Criminal Law 10th ed., pp. 411-2, 484 Back

21   Perry Hill and Karen Fletcher-Rogers, Sexually Related Offences (London: Sweet & Maxwell, 1997), pp. 171-2, paras. 6-25-6-26, citing DPP v. Rogers [1953] Crim. LR 644 and Williams v. Gibbs [1958] Crim LR 127. Cp. the different view of the later Professor Sir John Smith QC, Smith and Hogan's Criminal Law 10th ed. (London: Butterworths, 2002), pp. 411, 412, 484 Back

22   Memorandum, para. 2 Back

23   Memorandum, para. 9, referring to X. and Y. v. The Netherlands, Eur. Ct. HR, judgment of 27 Feb. 1985, Series A, No. 91, 8 EHRR 235 Back

24   X. and Y. v. The Netherlands, above Back

25   Memorandum, para. 10 Back

26   ibid Back

27   Above, paras. 19-21 Back

28   It also applies to someone found not guilty by reason of insanity, or found to have done the act complained of following an inquiry after a finding of unfitness to plead, or cautioned: cl. 83(1)(a)-(d) Back

29   This includes a reprimand or final warning under Crime and Disorder Act 1998, s. 65: see cl. 119 Back

30   Memorandum, para. 11. The memorandum goes on to outline how this is done: paras. 12-13 Back

31   ibid., para. 13 Back

32   ibid., para. 15 Back

33   ibid., paras. 12 and 14 Back

34   cl. 91, referred to in para. 17 of the Memorandum Back

35   ibid., para. 16 Back

36   It was mentioned in passing in para. 10.50.8 of the Report Back

37   [2002] EWHC Admin 2486, [2003] 1 WLR 897, DC Back

38   ibid. at para. 27 Back

39   Deweer v. Belgium, Eur. Ct. HR, judgment of 27 Feb. 1980, Series A, No. 35, 2 EHRR 439 at para. 49 Back

40   [2002] EWHC Admin 2486, [2003] 1 WLR 897, DC, at paras. 27, 35-39 Back

41   Cl. 110 Back

42   Cl. 115 Back

43   [2002] UKHL 39, [2002] 3 WLR 1313, HL Back

44   [2002] UKHL 39, [2002] 3 WL 131, [2002] 4 All ER 593, HL. See Memorandum, paras. 19-20 Back

45   Memorandum, paras. 21-22 Back

46   Memorandum, para. 22 Back

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