Draft Sexual Offences Act 2003 (Remedial) Order 2012: second Report - Human Rights Joint Committee Contents


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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Prepared 28 May 2012