Right of appeal for sex offenders register
16 February 2011
It is being reported this morning that sex offenders will be given the right to appeal their placement on a police register. The change follows a Supreme Court ruling that the lifelong restrictions were contrary to human rights law.
As I posted in April last year, the Supreme Court unanimously ruled that lifelong requirements for sex offenders to notify the police when they move house or travel abroad are a breach of Article 8 of the European Convention on Human Rights, the right to privacy and family life.
Lord Phillips, giving the leading judgment, said:
I think that it is obvious 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 an appropriately high threshold for review.
He also doubted that this would lead to any significant practical problems resulting from a right of appeal:
Registration systems for sexual offenders are not uncommon in other jurisdictions. Those acting for the first respondent have drawn attention to registration requirements for sexual offenders in France, Ireland, the seven Australian States, Canada, South Africa and the United States. Almost all of these have provisions for review.
A government source told the BBC: “We have no choice but to implement the Supreme Court judgement. There is no right of appeal.” This is slightly disingenuous. The government has a legal obligation under the Human Rights Act to ensure that laws are compatible with the European Convention on Human Rights. The Supreme Court interprets the law and decides whether a provision is compatible. Parliament then has a choice as to how it will proceed.
The Home Secretary has also said to MPs:
It is time to assert that parliament makes our laws, not the courts, that the rights of the public come before the rights of criminals and, above all, that we have a legal framework that brings sanity to cases such as these.
The change to the law will be politically unpopular. So it is convenient to blame judges, who will no doubt again be referred to as unelected and unaccountable. But every time the government absolves itself of responsibility for upholding human rights, it corrodes public confidence in them. The European Convention is not judge-made and judge-led, but rather was passed into law by Parliament. It is questionable how many people now realise this.
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