1 Recommendation
Introduction
1. On 6 March 2012 the Home Secretary laid before
Parliament a draft order, the Sexual Offences Act 2003 (Remedial)
Order 2012.[1]
2. The purpose of the draft order, as explained
in the accompanying draft Explanatory Memorandum, is to amend
the Sexual Offences Act 2003 to remedy the incompatibility with
a Convention right found by the UK Supreme Court in F and Thompson
v Secretary of State for the Home Department.[2]
The Supreme Court in that case made a declaration under s. 4 of
the Human Rights Act 1998 that "the indefinite notification
requirements in s. 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."
3. Section 82(1) provides for the notification
arrangements created by the Sexual Offences Act 2003 (and commonly
known as "the Sex Offenders Register") to apply indefinitely
to offenders sentenced to a term of imprisonment lasting 30 months
or more. Other offenders who commit relevant offences may be made
subject to a restriction order and these offenders are also required
to notify indefinitely. The Supreme Court concluded that, in so
far as these provisions allow for indefinite notification without
review, they constitute a disproportionate interference with the
right to respect for private life and are therefore incompatible
with Article 8(1) ECHR.[3]
4. The Supreme Court concluded that the terms
of the notification scheme engaged the right to respect for private
life enjoyed by offenders. It found that the impact on offenders
was not insignificant. However, the requirement for notification
served a legitimate aim of protecting the rights of others from
the risk posed by offenders. The Court accepted that significant
weight was to be placed on measures designed to protect individuals
against sexual offences. Ultimately however, the Court concluded
that:
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 notification requirements is unjustified.
As the courts below have observed, it is open to the legislature
to impose a high threshold for review.[4]
5. The source of the incompatibility found by
the Supreme Court was therefore the absence of a mechanism providing
for review of the indefinite notification requirements by "an
appropriate tribunal." The draft order aims to remedy this
incompatibility by introducing a new mechanism by which a person
subject to indefinite notification requirements under the 2003
Act can apply for a review and determination that those requirements
shall cease.
6. Under our terms of reference, we are required
to report
- Our recommendation as to whether
the draft order should be approved
- Whether the special attention of each House should
be drawn to the draft order on any of the grounds on which the
Joint Committee on Statutory Instruments may so report in relation
to statutory instruments.
7. We may also report on any matter arising from
our consideration of the draft order.
8. The draft order requires approval by a resolution
of each House. This Report is intended to inform the debate which
must take place in both Houses on the draft order.
Our first Report on the proposed
order
9. We reported on the Government's proposal for
a draft Sexual Offences Act 2003 (Remedial) Order on 13 October
2011 (hereafter our "first Report" on the proposed order).[5]
10. We agreed with the Government that there
were compelling reasons for using the remedial order process to
introduce a review mechanism into the system for registration
of sex offenders. However, we concluded that the draft Order would
not remove the incompatibility identified by the Supreme Court
and we therefore recommended that the proposed draft order should
not be introduced in the terms then proposed. We were particularly
concerned by the lack of provision for review by an independent
and impartial tribunal, and by the failure of the draft order
to make clear the test to be applied when reviewing whether the
notification requirements continue to be justified. We therefore
recommended that the Government make a number of amendments to
the draft order.
The Government's response to our
Report on the proposal for a draft order
11. At the same time as the draft order was laid
the Government published its response to our Report on the Government's
proposal for a draft order. The Government accepted a number of
the recommendations we made in our Report, including in particular:
- the introduction of a right
of appeal to the magistrates' court from the police determination
of an application for review of the indefinite notification requirements;
- the express inclusion of the test which the police
must apply when determining such an application, including an
express requirement that the police consider the risk of sexual
harm posed by the qualifying relevant offender and the effect
of a continuation of the indefinite notification requirements
on the offender; and
- a duty on the Secretary of State to issue statutory
guidance to the police in relation to the process for the determination
of reviews.
12. We welcome the Government's
acceptance of our recommendations in our first Report and the
amendments it has made to the draft order to give effect to those
recommendations.
13. The Government also considered but did not
accept our recommendation that the application of the remedial
order to child offenders should be modified, to include either
a shorter qualifying period than the proposed 8 years or a discretion
to review sooner in the case of children. In the Government's
view the draft order is proportionate, because it already provides
for review after 8 rather than 15 years for child offenders, and
the differences in the approach taken by courts to the sentencing
of child offenders means that the indefinite notification requirements
will only apply anyway to children who have committed a significantly
more serious offence than that committed by an adult.
Does the draft order remedy the
incompatibility?
14. Our main concern about the Government's earlier
proposal was its lack of provision for review by an appropriate
tribunal. We considered that only a review carried out by an independent
and impartial tribunal, or a full statutory right of appeal from
the decision of the police to an independent and impartial tribunal,
would introduce a sufficiently independent element to the review
process. We further considered that an appropriate tribunal in
these circumstances should be a court of sufficient seniority,
such as the Crown Court or the High Court.
15. The draft order provides for a right of appeal
to the magistrates' court from the determination by the police.
Although this is not the same as a right of appeal to a higher
court, as we preferred in our first Report, we accept that it
is sufficient to remove the incompatibility identified by the
Supreme Court in F and Thompson. We
therefore accept that the draft order is now sufficient to remedy
the incompatibility with Article 8 ECHR that currently exists.
16. We note, however, that although the Government
has accepted our recommendation on this central point, and has
amended the draft order to provide for a right of appeal to the
magistrates court, it expressly disagrees with the reasoning in
our Report as to why such a right of appeal to an independent
court is required in order to remove the incompatibility.[6]
In this part of its response, the Government appears to argue
that a system of purely administrative review would be sufficient
to remove the incompatibility—at the same time as it amends
the draft order to provide for a right of appeal to an independent
court. We are puzzled by this part of the Government's response.
It is not clear why the Government would have chosen to provide
for such a right of appeal if it is not strictly necessary to
remove the incompatibility. We
remain firmly of the view expressed in our first Report, that,
in order to be compatible with the requirements of the ECHR, review
by an "appropriate tribunal" requires there to be an
opportunity for an independent court or tribunal to assess whether
the continuation of notification requirements is justified.
17. Indeed, we also draw to the attention of
both Houses the fact that the need for there to be a right of
access to an independent and impartial tribunal to provide an
independent review of the necessity for continuing indefinite
notification requirements is even stronger now than it was at
the time of the decision of the Supreme Court in F and Thompson.
This is because, as the Equalities and Human Rights Commission
has pointed out in a letter dated 10 May, the notification requirements
placed on registered sex offenders have been extended by the Sexual
Offences Act 2003 (Notification Requirements) England and Wales
Regulations 2012. These regulations extend the notification requirements,
by requiring, for example, all offenders subject to the notification
requirements to notify the police of all foreign travel (including
travel outside the UK of less than three days), and to notify
bank account and credit card details. Although these Regulations
are not yet in force, they clearly make the notification requirements
more onerous and therefore increase the degree of interference
with the right to respect for private life in Article 8 ECHR compared
to that considered by the Supreme Court. In
our view, the fact that the notification requirements on sex offenders
are now more onerous makes it all the more important that provision
is made for review of indefinite notification requirements by
an independent and impartial court or tribunal.
1 The draft order was laid under para 2(a) of Schedule
2 to the Human Rights Act 1998, which makes provision for the
remedying of incompatibilities with Convention Rights by way of
"remedial order". Back
2
[2010] UKSC 17. Back
3
See F & Thompson, above n.2, at para 57. Back
4
F & Thompson, para 57. Back
5
Nineteenth Report of Session 2010-12, Proposal for the Sexual
Offences Act 2003 (Remedial) Order 2011, HL Paper 200/HC 1549. Back
6
Government Response, paras 16-18. Back
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