Court of Session upholds sexual offences notification regime

1 June 2015 by Thomas Raine

Main v Scottish Ministers [2015] CSIH 41, 22^nd May 2015 – read judgment

The Court of Session’s appeal chamber – the Inner House – has had to decide whether the scheme of indefinite notification requirements for sexual offenders in Scotland is compatible with Article 8 of the European Convention on Human Rights.

Legal and Factual Background

The appellant, Main, was a convicted sex offender who had been found guilty of a number of sexual offences involving children and sentenced to a total of 16 months imprisonment. He was subsequently sentenced to two, 2-year terms of imprisonment for breaching a sexual offences prevention order.

As a result of his conviction, Main was subject to the notification requirements under sections 80 and 82 of the Sexual Offences Act 2003 which had been given effect in Scotland by the Sexual Offences Act 2003 (Commencement) (Scotland) Order 2004. He was required to provide information to police at the time of his conviction including a home address, passport details, and bank account details. Under the 2003 Act, Main had to advise the police of any changes to this information and inform them of any place at which he stayed for seven days or more and any travel outside of the UK. As he had been sentenced to more than 30 months imprisonment these notification requirements were imposed for an indefinite period (s 82(1) of the 2003 Act).

In R (F) v Secretary of State for the Home Department (read that judgment here) the Supreme Court held that the indefinite notification requirements in the 2003 Act were a disproportionate interference with Article 8 (1) as they did not allow a review of whether the requirements remained necessary over time. The Scottish Government responded to the judgment in R (F) with the Sexual Offences Act 2003 (Remedial) (Scotland) Order 2011, which requires a review of the notification requirements after 15 years.

It was agreed that the notification requirements interfered with Main’s rights under Article 8 (1) meaning that the question for the Inner House was whether they were proportionate under Article 8 (2).

The Arguments

Main argued that the notification requirements were disproportionate as they applied over a lengthy period of time without an interim assessment. They were not the least restrictive way of preventing sexual offending as they did not allow an individual to demonstrate that he was no longer a threat until 15 years after release from prison. An offender should have been able to apply for a review at any time after release.

As far as the Scottish Government was concerned, the question for the court was not whether a slightly shorter period could have been selected, but whether the choice taken was within a range of reasonable options. A policy decision had to be taken and the 15-year period had been chosen after public consultation and parliamentary approval.  It was based on evidence which demonstrated that the risk of reoffending persisted for at least ten years and up to twenty years following release. Given the respect that the court owed to a democratically-elected government and parliament, it could not be said that the scheme was disproportionate.

The Outer House Judgment

The Outer House (the first instance court) found that the review provisions were a proportionate interference with Article 8 (1). The Scottish Government had struck a fair balance between the rights of convicted sex offenders and the interests of the public by selecting a review period that was lengthy but based upon the available evidence about the risk of reoffending. The fifteen-year period was based on a rational judgment.

The Inner House Judgment

The Inner House unanimously refused Main’s reclaiming motion (appeal), agreeing with the Outer House that the notification requirements were a proportionate interference with Article 8 (1).

Applying the four-stage proportionality test set out by Lord Reed in Bank Mellat v HM Treasury [2013] UKSC 39, the court found, firstly, that the notification requirements served the legitimate aim of preventing or reducing crime. Secondly, there was a rational connection between the requirements and their aim – the fact that the authorities possessed information on the offender’s whereabouts and his bank details would make detection easier and was therefore likely to discourage offending.

At stage 3 of the proportionality test – whether a less restrictive means could have been used – the court accepted that it would have been possible to select a shorter review period. However, the relevant question was whether the chosen period was disproportionate bearing in mind that the court “should not substitute a judicial view for a legislative one.” The 15-year period had been the subject of consultation, parliamentary approval, and was based on evidence about the likelihood of reoffending. It was therefore within the range of reasonable options open to Parliament. Furthermore, the measures were not of a ‘blanket’ nature as they applied differently to different offenders. The 15-year review period only applied to adult offenders sentenced to 30 months imprisonment or more.

At the final stage – assessing proportionality – the court held that the level of interference with Main’s rights under Article 8 (1) did not outweigh the public benefit of the scheme. While the restrictions had a practical effect on an offender’s life they were “clearly at the lower end of the spectrum of possible interference.” They were an alternative to more serious restrictions and allowed offenders to be released from prison at an earlier stage than might otherwise be the case. Another relevant factor was that in Scotland, unlike in England and Wales, it was for the Chief Constable to show that the offender continued to pose a risk if the notification requirements were to last longer than 15 years. This contributed to the proportionality of the scheme.

The court made some interesting comments about proportionality, and showed considerable deference to the parliamentary process – unsurprising given the policy context. Lord Carloway endorsed the findings of Lord Reed in Bank Mellat that the less restrictive means test should not be applied too strictly. It would usually be possible to identify a less restrictive alternative but this did not allow the court to substitute its view for that of the legislature. The latter was entitled to respect in selecting from a range of possible options. Lord Drummond Young observed that Strasbourg jurisprudence had recognised that the court should show regard for democratic processes by respecting parliamentary decisions unless there was a “clear contravention” of Convention rights. The same must apply in domestic courts.

by Thomas Raine