|
A proposal for a draft Sexual Offences Act (2003) (Remedial) Order and the required information was laid before both Houses on 14 June 2011. Our terms of reference require us to report to each House our recommendation as to whether a draft order in the same terms as the proposal should be laid before Parliament, and we may also report on any matter arising from our consideration of the proposal.
The purpose of this proposal is to remove the incompatibility in Section 82(1) of the Sexual Offences Act 2003 identified by the domestic courts in F & Thompson v Secretary of State for the Home Department. Section 82(1) provides for the notification arrangements created by the Sexual Offences Act 2003 (and commonly known as "Sex Offenders Registration") to apply indefinitely to offenders sentenced to a term of imprisonment lasting 30 months or more. The Supreme Court concluded that, in so far as these provisions allow for indefinite notification without review, they present a disproportionate interference with the right to respect for private life and are incompatible with Article 8(1) ECHR.
We agree with the Government's assessment that there are compelling reasons for using the remedial order process to introduce a form of review into the registration of sex offenders. We also agree that an urgent remedial order would not be justified.
However, we recommend that the draft Order should not be tabled in the terms proposed. It is our view that, without significant amendment, the proposals in the draft Order will lead to repeat litigation and further violations of Article 8 ECHR.
The proposals in the Order will not remove the incompatibility identified by the Supreme Court in Thompson. We consider that the draft Order should be amended to introduce a review by application to an independent and impartial tribunal, with a requirement that the Chief Police Officer (and other MAPPA institutions) should be notified of the application and should submit reports on their assessment of the risk posed by the applicant; or that the Order is amended to introduce a full statutory right of appeal from the decision of the Chief Officer to an independent and impartial tribunal. In our view, either of these options would introduce a sufficiently independent element to the review process. The Committee expresses its view that this type of review should be concluded by a court of sufficient seniority, such as the High Court or the Crown Court.
We recommend amendment of the draft Order to (a) include a test to be applied on review, incorporating a proportionality exercise and (b) to introduce the impact on the individual offender as a relevant factor to be considered on review.
We welcome the Government's confirmation that guidance will be necessary to accompany the new review mechanism. We consider that additional guidance will be essential to ensuring procedural fairness and the effective involvement of victims and offenders in the decision making process. We are concerned that the proposed guidance will not be statutory guidance required by the terms of the draft Order.
We also consider the particular impact of indefinite notification on child offenders. We recommend that the Government consider amendment of the draft Order to introduce either (i) a discretionary opportunity for review of the proportionality of notification requirements imposed on child offenders or (ii) a shorter period for rolling reviews in the case of child offenders (perhaps providing for applications to be possible at two year intervals, rather than eight year periods).
We note the need for particular care in cases where different measures to address a violation identified by the Court are proposed in England, Northern Ireland and Scotland.
While we acknowledge the political interest in Government's seeking to maintain their policy objectives when responding to adverse human rights judgments, the first objective of any remedial order or legislation designed for this purpose should be to remove the relevant violation. We stress that remedial orders are designed to be used when the Government intends to remove a violation and provide a fast-track parliamentary procedure for remedying breaches of the Convention quickly. Introducing measures which create a significant risk of further litigation using this special parliamentary procedure appears to us to undermine the purpose for which it was intended. We express concern about the Government's approach in this case.
| 
