Proposal for the Sexual Offences Act 2003 (Remedial) Order 2011

Proposal for the Sexual Offences Act 2003 (Remedial) Order 2011 - Human Rights Joint Committee Contents

4 Does the draft Order remedy the incompatibility?

Introduction

23. In the Minister's letter, the Government outlines the terms of the declaration of incompatibility made by the Supreme Court:

The indefinite notification requirements in section 82(1) of the Sexual Offences Act 2003 are incompatible with Article 8 of the European Convention on Human Rights in so far as they do not contain any provision for the review of the justification for continuing the requirements in individual cases.[29]

24. This declaration implements the judgment of the Court that a lack of appropriate review in cases of indefinite notification was incompatible with Article 8 ECHR:

There must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of the notification requirements is unjustified.[30]

25. We are concerned that a number of potentially misleading statements have been made in the press about the scope of this judgment.[31] We would like to use this opportunity to stress its limited scope:

The Supreme Court stressed that the public interest served by the registration of sex offenders was not disputed in this case.[32] In their submission to the Committee, Liberty expressly outline the human rights requirements on the Government to protect the public from sexual offences, grounded in Articles 3 and 8 ECHR, the rights to be free from inhuman and degrading treatment and the right to respect for private life. We reiterate the weight afforded to public protection from sexual offences by the European Convention on Human Rights in its case-law and by the Supreme Court in Thompson. In their submission, the EHRC refer to the case of Stubbings where the European Court of Human Rights said:

Sexual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to state protection, in the form of effective deterrence, from such grave types of interference with their private lives.[33]

The Supreme Court does not rule out the operation of the sex offenders register, nor does it rule out a sex offender being registered for life. It does require the introduction of a review by an appropriate tribunal in those cases where ex-offenders are required to register indefinitely. The purpose of this review is to consider whether continued notification requirements continue to be justified and necessary and proportionate to the aim of the prevention of sexual offending and the protection of the right of others to be free from sexual harm.[34] Although the Court's analysis was firmly based on the proportionality of the measures and the potential for disproportionate interference with individual offenders' private lives, we and our predecessors have repeatedly called for access to judicial scrutiny of administrative or civil decision making where decisions are taken by public authorities which impact significantly on the rights and liberties of individuals in the UK. The same need for review applies in cases where restrictions on individual liberty are imposed automatically, indefinitely or without opportunity for challenge. The fundamental principles of procedural fairness and access to justice which are protected by both Article 6 ECHR and the procedural elements of Article 8 ECHR (as exhibited in this case) are grounded in common law tradition.[35]
In assessing whether continued registration is necessary and proportionate, the Court was clear that significant weight should be afforded to the interest in protecting the public from sexual offences.[36]

26. It is our view that the proposals in the Bill do not remove the incompatibility identified by the Supreme Court. 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.

(a) Do the proposals provide for a review by an appropriate tribunal?

27. The most significant issue arising in connection with the draft proposals is the extent to which the review proposed in the mechanism meets the requirements of the judgment. We wrote to the Government to ask for further information on their view that a review of the risk posed by an ex-offender by a Chief Police Officer is adequate to render the Sexual Offences Act 2003 regime compatible with Article 8 ECHR. The Government confirmed that this review would be subject to judicial review and that, in its view, this was sufficient to remove the violation identified by the Supreme Court. By way of summary, the Minister explained the Government's view as follows:

The Government considers that the Court is unclear whether review must be judicial or administrative. It considers that either is adequate for the purposes of Article 8 ECHR;
The Chief Police Officer, working with MAPPA agencies,[37] will be best placed to assess risk; and
In any event, judicial review, following European Court of Human Rights case law will be adequate to ensure independent oversight of the decisions of the Chief Police Officer.[38]

28. We consider the Government's approach is flawed for a number of reasons:

Review by an independent and impartial body is the only approach which is consistent with the existing case-law of the European Court on Human Rights. The Supreme Court refers to the case of Bouchacourt.[39] In this case, the European Court of Human Rights reviewed the operation of sex offenders' notification requirements in France. Under the French law, individuals were required annually to report their address for recording on a central database. The information would be stored for up to 30 years, not indefinitely. The Court reviewed this provision and considered that it was proportionate in light of accompanying safeguards, including access to a judicial assessment of whether information should be deleted.

The Minister tries to distinguish this case (and earlier case-law on the need for review when indefinite measures interfere with private life) in her response to the Committee's request for further information. The Minister's response to our request for further information argues that since this case dealt with retention of information on the French equivalent of the database, rather than the entirety of the notification requirements, it is distinguishable.[40] In our view, this argument is unsustainable, particularly in light of the reference to this line of authority by the Supreme Court as relevant to its analysis, if not necessarily decisive. In effect, the Minister argues that since the interference posed in that case was less significant, the relevance of the need for an independent review to the operation of the register in the UK is reduced. If anything, it is arguable that the need for a review is more significant by comparison.

The Supreme Court judgment refers to the review mechanisms in other countries, including France, Ireland, Australia, Canada, South Africa and the United States. In our view, evidence illustrates that across Europe and the Commonwealth, where a review is available, it generally involves a judicial element. For example:
- In France, the review is overseen by a judge, with a full right to appeal through the ordinary judicial process (see above).[41]
- In the Republic of Ireland, review is by way of an application to the Court to discharge the requirement to notify.[42]
- In Canada, review is also by way of application to the ordinary criminal Courts.[43]

In South Africa, oversight of registration, including decisions on applications for removal from the register, is provided by an appointed Registrar, who must be a "fit and proper" person to manage the sex offenders register.[44]

This consistency of approach reduces the likelihood that in any subsequent challenge the European Court of Human Rights could consider that the Government's proposals were within any margin of appreciation afforded under the ECHR. The comparative disparities in approach are more stark when the response of the administrations in Scotland and Northern Ireland to this judgment are taken into consideration.

In Scotland, notification requirements will lapse after either 15 or 8 years, unless a Chief Officer takes a decision that they must continue. The decision of the Chief Officer is subject to appeal to the Sherriff (and further appeal through the ordinary criminal courts).
The Northern Ireland Executive are currently consulting on their proposed response to the decision in Thompson.[45] Broadly, the Northern Ireland executive proposes that a first review will be conducted by the Chief Officer. Thereafter, if a review is unsuccessful, the offender may make an application to the Crown Court for the discharge of his requirement to notify. The Northern Ireland Executive give two reasons for rejecting the approach proposed in England and Wales: (a) legal advice that this approach was incompatible with the ECHR and (b) representations by the Northern Ireland Police Service.[46]

The Supreme Court judgment makes clear that it envisages review by "an appropriate tribunal".[47] The reference to the involvement of a tribunal, in our view, makes it clear that the Court did not envisage a referral back to an administrative decision-maker. If the Court considered review, particularly in a criminal justice context, by the police, adequate for the purposes of Article 8 ECHR, it would have expressly included this as a possibility in its judgment.[48] The Minister argues that the administrative decision taken by the Chief Police Officer, taken cumulatively with the possibility for judicial review is adequate to meet the need for independent oversight. However, in our view, her analysis of the Strasbourg case-law on Article 6 ECHR is flawed. In the case of Kingsley,[49] the Court makes clear that where an original decision maker is not independent and impartial as required by Article 6 ECHR, the possibility of judicial review can remedy the flaws in the decision making process, provided that overall, the original decision-making process has been fair. Here, the combination of an assessment by a Chief Police Officer, subject to judicial review, is not, in our view, comparable. In many cases where judicial review was adequate to render a decision compatible with Article 6 ECHR, the original decision was reviewed by a secondary decision-maker (who may not be entirely independent) before being subject to judicial review. In Tsfayo, the Court makes clear that where the original decision maker is responsible for taking an assessment largely based on factual determinations, the flaws in the decision making process cannot be remedied on judicial review, which is incapable of reassessing the facts of any case. The Government has indicated that decisions on risk assessment will not involve the determination of any facts, which will be settled, but instead the assessment of risk based on a determined factual matrix. This is far from clear in our view, in light of the fact that the assessment will take place some years after the initial offence, and risk may be assessed on the basis of events or developments during the intervening period, some of which may be subject to factual dispute. In any event, the proposed decision-making process is subject to a number of potential procedural flaws which we return to, below.
The Government view that the Chief Police Officer will be best placed to assess risk, ignores the various circumstances in which courts and other tribunals assess the risk to the public, for example in sentencing decisions, in decisions on Sexual Offences Prevention Orders or other civil-based orders and in the decisions taken by the Parole Board in their analysis of the appropriateness of an individual's release on licence and the continued need for license arrangements to prevail. In any event, it is clear that any Court or Tribunal would hear from the Police and other MAPPA agencies in determining any assessment of risk and that this evidence would have a significantly high value in any assessment of proportionality conducted on review. For example, in Scotland, the relevant legislation makes clear that the relevant Chief Constable may appear or be represented during any hearing of an appeal.[50]

29. The proposals in the Bill 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.

30. However, together with the changes set out at paragraphs 37-38 below, amendment of the draft Order to provide for a full statutory appeal to an independent and impartial court or tribunal would be the minimum required to ensure that the Government's proposals will remove the violation identified by the Supreme Court. We consider that an appropriate tribunal in these circumstances should be a court of sufficient seniority, such as the High Court or the Crown Court (following the model proposed in Northern Ireland).

(b) Do the proposals provide for consideration of the proportionality of continuing notification requirements?

31. In Thompson, the key paragraphs of the judgment make clear that the purpose of the review is to allow ex-offenders to challenge the necessity and proportionality for their continuing requirement to notify.[51] This exercise involves an assessment of the proportionality of the interference which the requirements associated with notification pose to the individual's private life and the risk which he or she poses of sexual harm to the public. While the Supreme Court was clear that risk could weigh heavily in favour of continued notification, this assessment would require the reviewer to consider both the impact on the individual of continued notification and the benefits to the public which accrue from the inclusion of his or her details on the sex offenders register.[52]

32. In the Government's proposal, the decision-making exercise for Chief Officers is set out at new Section 91C and Section 91D. Although the draft Order specifies a number of factors to be taken into account, it does not set out a test to be applied by the Chief Officer in determining an application for review. By way of contrast, in the Scottish Remedial Order, the test to be applied is specified thus:

The relevant chief constable may make a notification continuation order only if satisfied, on the balance of probabilities that the relevant sex offender poses a risk of sexual harm to the public, or any particular members of the public, in the United Kingdom.

33. The factors to be taken into account in the Government's draft Order include a number of relevant factors, but do not include the impact of the relevant notification requirements on the ex-offender. This will be relevant to the assessment envisaged by the Supreme Court, since different requirements may pose different degrees of interference with the private lives of different offenders and this will affect the assessment of proportionality in each individual case. In her reply, the Minister addresses the test to be applied. She explains:

We do not expect the police to apply a particular test by reference to which they would make a determination although this would essentially be an assessment of the risk posed by an offender. This is envisaged by the terms in which the proposal to make the order has been drafted.[53]

34. Unfortunately, this approach does not necessarily meet the approach envisaged by the Supreme Court. The difference is brought into stark relief when read together with the Minister's assessment of the available academic research on reoffending by sex offenders, which she notes cannot demonstrate that there is a point where an ex-offender poses no risk of further sexual offending.[54] The Supreme Court expressly discounted a similar analysis of the statistical and other research in their judgment:

Caution must, of course, be taken in relying on reconviction statistics because these will necessarily be lower than the actual incidence of re-offending. Nonetheless, these statistics show that 75% of the sexual offenders who were monitored were not reconvicted. No light is thrown on the question of whether it was possible to identify by considering these whether there were some reliable indications of offenders who did not pose a significant risk of re-offending. No evidence has been placed before this court or the courts below that demonstrate that it is not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who pose no significant risk of re-offending. It is equally true that no evidence has been adduced that demonstrates that this is possible.[55]

35. In their final assessment, the Court confirms that a high threshold for review will be acceptable, but suggests that the review would look at whether "the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified".[56] Thus, although the standard for review may be high, review must always involve some assessment of whether notification continues to be justified. In our view, the starting point cannot be a requirement that evidence must be adduced that the individual concerned poses no risk.

36. Although any substantive evidence of risk of sexual harm to the public will weigh heavily in the balance for continued notification, this is only one side of the balance to be considered. NSPCC have submitted that the priority must always be the protection of the public, and in particular, children, from the risk of sexual abuse. While this must always be the purpose of the register, the exercise of the review must be to identify whether the degree of harm which an individual poses continues to justify the interference with his or her private life which the notification requirements impose. Although in a significant number of cases, evidence of a risk of harm will justify continued notification, in other cases, an abstract assessment of risk based principally on historical factors may have to be balanced against a significant impact on for example, an ex-offender whose physical capacity to offend is reduced by injuries or impairments sustained after his or her original offending. If proposed new changes to the notification regime are introduced which would require six months notification of all overseas travel, this requirement could significantly impact on the ability of certain ex-offenders to travel for work. If balanced against an assessment by a Chief Officer or another MAPPA institution that the ex-offender posed an extremely low risk of reoffending, the assessment of proportionality may indicate that continued notification was not necessary or justified, although some low-level risk continued.

37. In our view, without amendment to make clear that the review of notification requirements involves an assessment of whether the impact on the individual applicant for review of continuing notification continues to be justified and necessary in light of the risk they pose to the public, there is a risk that the Government's proposals will not remove the violation identified by the Supreme Court.

38. 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.

(c) Are the procedures provided sufficiently accessible, fair and transparent?

39. We also wrote to the Minister to ask for further information on the justification for requiring individuals to apply for a review and prohibiting any review until 15 years after release (for adult offenders) and 8 years after release (for child offenders). We return to the treatment of child offenders, below. In Scotland, the requirement to notify lapses after 15 or 8 years respectively unless a Chief Officer makes a determination that notification should continue. The Minister explained the Government's reasons for its approach as follows:

This timescale accords with the existing scheme in the 2003 Act for the notification requirements fixed for prescribed periods of time. Other than indefinite detention, the longest fixed period for notification is 10 years. The Government considers that in light of this period, the Government considers that 15 years' compulsory notification before an opportunity to review is appropriate.[57]
The Government relies on limited academic evidence on the likelihood of reoffending by sex offenders up to 25 years following conviction. That evidence, illustrates that around 25% of ex-offenders will reoffend during this period. They consider that risk of reoffending within that group is highest in the period following release from custody and decreases over time.[58]
The initial time-scale for review and the period for subsequent reviews were determined after discussion with a working group including ACPO and NOMS. This group reached a collective decision about the appropriate review periods to set, based on the available expertise from practitioners' experience of managing offenders in the community.[59]

40. We also asked the Minister for further information on comparative experience. He included information which makes clear that the timescale for review differs in different countries. The Minister told us that in France, no minimum timescale is set. In Ireland, a review may be sought 10 years after release. In Australia, 15 years and, in Canada, 20 years.[60]

41. There is nothing in the case-law of the European Court which would suggest a time-scale within which a review must be undertaken before the relevant measures will be rendered disproportionate. However, it is notable that in Bouchacourt, the only case where a mechanism for review was considered relevant to that assessment, the French scheme for review was not time-limited. It is possible to envisage some cases where the imposition of a minimum period of mandatory notification without review could lead to the continued imposition of unjustified retention requirements. For example, if a relevant development occurs or set of circumstances arise at the time of the original offence, or shortly thereafter, which render the risk of reoffending negligible, in this case, continued notification for a further 15 years may be disproportionate. In their evidence, Liberty use the example of a teacher convicted of offences in connection with a sexual relationship with a 15-year-old pupil. If the teacher has no prior convictions and has subsequently married the relevant pupil, it is arguable that the circumstances of the case might significantly reduce the risk of re-offending. In their submission, the Howard League argues that this approach lacks "sufficient flexibility". They explain:

The system does not appear to b sufficiently flexible to allow for [...] discretion to be exercised where appropriate in certain circumstances outside the rigid structure of the proposals.[61]

42. They give an example of a child offender who is assessed as low risk by a therapist early in a period of compulsory notification. The offender may have a pressing need to be free of notification requirements in order to open up employment or education opportunities essential to their rehabilitation, yet they will need to wait a significant period of time before a review will be available. The therapists' assessment may become dated during that time, to the detriment of the evidential basis for the assessment of the risk posed by the ex-offender.[62]

43. This argument, however, also applies to notification for fixed periods (for example, in Bouchacourt the Court was considering the proportionality of registration for up to 30 years, albeit with access to review). The proportionality of the imposition of notification requirements for fixed periods without opportunity for any interim review was not considered in Thompson.

44. There is no definitive guidance in the case-law of the European Court of Human Rights. However, by setting a blanket minimum period for notification without opportunity for review, the Government enhances the possibility that there will be further challenges to the review mechanism in the future. It is possible that, in some individual cases, compulsory registration for a lengthy fixed period, without opportunity to challenge the continued justification for notification will lead to a significant risk of violation of the right to respect for private life (Article 8 ECHR). Without extraordinary provision for review of the proportionality and necessity in connection with any requirement to notify for a fixed period of time, there remains a risk of further challenges to the operation of the register. In individual cases where the circumstances of the relevant offence or offender are such that the risk of further reoffending are reduced significantly very early in the period of compulsory notification, continued registration may be unjustifiable. We draw this to the attention of both Houses. Members may wish to ask the Government to provide further justification for the proposed 15 and 8 year timescales for initial review.

45. In their submission to the Committee, Liberty criticises the procedural measures in the draft Remedial Order, which they argue are not sufficiently transparent, nor do they make adequate provision for the disclosure of evidence to applicant ex-offenders or for them to be permitted to make representations before an initial decision on continued notification is taken. The questions forwarded to the Committee by South Essex Rape Crisis and Incest Centre, include a number of specific queries about the involvement of victims in the review process and the assessment of risk.[63]

46. The draft Remedial Order provides for the applicant ex-offender to provide information and make representations only after the initial decision has been taken on whether or not to continue notification. The decision-maker must review his position after hearing these representations, but it is unclear whether the ex-offender will ever see the evidence relied upon by the decision-maker to support his assessment of risk.[64] The draft Remedial Order makes clear that victims' views will be a relevant factor for decision-makers to consider when determining an application for review.[65]

47. In her response to the Committee's letter, the Minister makes clear that the Government intends that procedural guidance will accompany the draft Remedial Order to ensure consistency in the exercise of discretion across police forces.[66] The Impact Assessment states that the guidance will "detail all necessary considerations in completing a review, details of the process and what is required at each stage and further details on the factors which form the basis for the review decision".[67] It is clear that this guidance will address procedural and substantive issues which may be essential to the fairness of any review and the assessment of the proportionality of any continued notification. There is no provision in the draft Remedial Order for statutory guidance on procedure or decision-making, although it is clearly within the power of the Minister under Section 10, HRA 1998 to include this type of supplementary measure. Although non-statutory guidance may be relevant to a decision on judicial review, it is not binding in the sense that failure to comply with statutory guidance may render a decision ultra-vires and unlawful.

48. We welcome the Government's confirmation that guidance will be necessary to accompany the new review mechanism. We consider that this guidance will be essential to ensure procedural fairness and the effective involvement of victims and offenders in the decision making process. It will also enhance the likelihood of consistency in approach to the review process. However, we are concerned that the requirement for guidance (and its need to provide clarity on key procedural aspects of the review process) is not provided for in the draft Order.

49. We recommend that the draft Order is amended to include a requirement for statutory guidance to be issued on the making of determinations of any application for review, including on relevant procedural issues, for example, the requirement for the applicant to understand the evidential basis for the assessment that notification is considered necessary and the right to make representations. This statutory guidance should also deal with the involvement and relevance of any input by victims of previous offences, in connection with the assessment of the risk posed by the applicant.

(d) Treatment of child offenders

50. Several of the submissions we have received have raised the need for different treatment for child offenders. In our letter to the Minister, the Committee asked for further justification from the Government that the proposal to require child offenders to notify for a minimum of 8 years without review was compatible with the UN Convention on the Rights of the Child (UNCRC). The correspondence raised a particular concern that the adult timescale could run for child offenders who were aged 18 on release (as indicated in the Impact Assessment accompanying the Remedial Order. [68]

51. The Minister wrote to confirm that 8 years will apply to all persons under 18 at conviction, regardless of age on release. The information provided in the Impact Assessment is inaccurate.[69] The Minister does not however provide any fuller analysis on the compatibility of these measures with the UNCRC. Although the Minister cross-refers to earlier Government statements on compliance with the UNCRC more generally, he does not add to the earlier Government statement that distinguishing between the adult and child offenders when setting the minimum period for notification without review is adequate to ensure proportionality and to comply with the UNCRC.

52. In their submission, the NSPCC states:

A minimum eight year period for those who committed a sexual offence when they were a child is too long. When combined with the right therapeutic support, there is clear evidence, both from the research literature and from the NSPCC's own practical experience that the risk of recidivism can be substantially reduced [...]The involvement of criminal justice agencies leads to them being stigmatised and labelled as criminals at a young age, the impact of which is potentially huge, blighting their chances of rehabilitation.[70]

53. The Howard League and the Prison Reform Trust take a similar view. South Essex Rape and Incest Crisis Centre ask whether a distinction will be drawn between different age categories of child offender (for example between those aged under 13 and those over 13) when assessing risk of future offending.[71]

54. As we explained above, while there is no concrete case-law to indicate that a minimum period of notification for child offenders will automatically be disproportionate. However, the proposed blanket approach to the registration of children on the sex offenders' register significantly increases the risk of disproportionate application in some cases and further future violations of Article 8 ECHR. In Thompson, Lord Rodger noted that the need for review was particularly acute in the case of children subject to indefinite notification requirements.[72] In the treatment of child offenders, the need to focus on the best interests of the child and the special need for rehabilitation and reintegration into society of child offenders, recognised in the UNCRC,[73] enhances the need for individual attention. The European Court of Human Rights routinely recognises the relevance of the provisions in the UNCRC, which require special protection for children in the criminal justice system to the assessment of the proportionality of measures which interfere with children's right to respect for private life (see S & Marper, on the indefinite retention of DNA and fingerprints, for example).[74] 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 8 year periods). We consider that the Government is under a particular obligation to justify the review periods which it proposes to apply to offenders who were children at the time when they committed the relevant offence which led to the imposition of notification requirements.