Will the Sex Offenders’ Register “Review Mechanism” breach human rights law?

12 July 2011 by Graeme Hall

Updated | In 2010, the Supreme Court ruled that a mechanism should be put in place to review whether convicted sex offenders should remain liable after their release from prison to notify the police of where they live or plans to travel abroad. In June 2011, the government published draft legislation to “ensure that strict rules are put in place for considering whether individuals should ever be removed from the register.” However, it is possible that the “strict rules” leave the government vulnerable to further legal challenges.

To recap (see also Adam Wagner’s post), section 82 of the Sexual Offences Act 2003 places those convicted of a sexual offence and imprisoned for at least 30 months under a life-long obligation once released from prison to notify the police when changing address and travelling abroad (“the notification requirements”). The Supreme Court ruled that the notification requirements violated sex offenders’ Article 8 rights to a private life and issued a declaration of incompatibility.

by Graeme Hall

Giving the leading judgment, Lord Phillips discussed the relevant case-law of the European Court of Human Rights. One of the two cases described as being of the “greatest relevance” was S and Marper v UK. In S and Marper, the European Court found that the blanket, indiscriminate and indefinite retention of DNA samples of those suspected, but not convicted, of criminal offences, breached their Article 8 rights. Lord Phillips quoted paragraph 119 of S and Marper:

… in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.”

The other case of importance was Bouchacourt v France, itself concerning similar facts to those before the Supreme Court. Here, the European Court found no violation of Article 8 because sex offenders could appeal against their automatic inclusion on the sexual and violent offenders’ register to the prosecutor, then to the juge des libertés et de la détention, and then to the president of the investigating chamber. According to Lord Phillips’ unofficial translation of this judgment, the European Court considered that:

“68. … [T]his judicial procedure for removing the information ensures independent review of the justification for the retention of the information according to defined criteria (S and Marper, already cited, para 119) and provides adequate and sufficient safeguards in relation to respect for private life, with regard to the seriousness of the offences justifying registration on the sex offenders’ register.”

Having considered these authorities, the Supreme Court concluded that the life-long notification requirements without review were a disproportionate interference with sex offenders’ Article 8 rights because:

“… 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.” (paragraph 57)

The government’s response

On 14 June 2011, the government announced draft legislation. The Sexual Offences Act 2003 (Remedial) Order 2011 will insert section 91 (explanatory notes here) which provides that (generally) a sex offender “may apply to the relevant chief officer of police for a determination that [s/he] is no longer subject to the indefinite notification requirements (“an application for review”)”, 15 years after the offender gave his first post-release notification. The subsequent chain of events can be summarized as follows:

a.       The police must make an initial determination of the application within 6 weeks of the latest date on which any responsible authority (such as the prison, social or probation services) provides information

b.      The police must notify the offender of the determination (with reasons if the offender is to remain liable to the notification requirements)

c.       The offender has 28 days after receipt of the determination to make representations

d.      The police have 6 weeks from the date of the offender’s representation to make and notify a second determination including reasons if the offender is to remain subject to the notification requirements.

The issue for discussion

Arguably, the government’s proposals do not establish a sufficiently independent and impartial reviewing mechanism to be compliant with human rights law. The lack of independence may mean that the notification requirements continue to be a disproportionate interference with offenders’ private lives under Article 8. Indeed, this may be the stronger argument considering the Supreme Court’s judgment refers to “an appropriate tribunal” rendering the Article 8 interference proportionate, and that the European Court states judicial procedures suffice to ensure an independent review within the meaning of Article 8. Nonetheless, the focus here will be Article 6: the right to a fair trial. Article 6(1) provides:

In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Do the proposals constitute a “civil right” within the meaning of Article 6?

Domestically, although the Supreme Court did not explicitly find a violation on the basis that there was no “right to review” (Lord Phillips refers to there being “no provision for individual review” (paragraph 58); Lord Rogers refers to the need for legislation to have “some provision for reviewing” (paragraph 66)); references to a “right to review” are peppered throughout the judgment. Deciding whether something constitutes a “right” within the meaning of the Convention can, however, be complex (see Rosalind English’s previous post). Although the draft legislation does not explicitly refer to the ability to apply for a review as a “right”, this does not mean that it cannot be characterized as such:

89. [T]he concept of “civil rights and obligations” is autonomous … Whether or not a right is to be regarded as civil within the meaning of this expression in the Convention must be determined by reference to the substantive content and effects of the right – and not its legal classification – under the domestic law of the State concerned.

…

94.              … All that is relevant under Article 6 para. 1 (art. 6-1) of the Convention is the fact that the object of the cases in question is the determination of rights of a private nature. (König v Germany)

Given that the application for review can only be exercised by the individual offender, and it concerns whether or not that individual remains subject to notification requirements, it is in both substance and effect of a personal or, private, nature. Combined with the wording of the Supreme Court’s judgment, it is suggested that the UK courts would view the “application for review” outlined in the Amendment Order as a “right”. On this assumption, the next consideration is whether the government’s proposals comply with the safeguards within Article 6.

Do the government’s proposals constitute an independent and impartial tribunal?

In Bryan v UK  the European Court stated:

37. In order to establish whether a body can be considered “independent”, regard must be had, inter alia, to the manner of appointment of its members and to their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence

The government’s proposals charge the “relevant chief officer of police” with the responsibility to decide whether an offender should cease to be subject to the indefinite notification requirements. Thus, the individual charged with the protection of the public is the very same individual who is to decide whether a sex offender is no longer required to notify the police of his whereabouts. On its face, the proposed review mechanism is neither independent nor impartial.

The draft legislation also does not include a mechanism to appeal the decision of the relevant police officer to any judicial authority. The only requirement is that reasons must be given if the application for review is negative. The government obviously has in mind that the decisions will be challenged by way of judicial review (see our cut-out-and-keep-guide to judicial review). Whilst appeal by way of judicial review can be sufficient to satisfy Article 6, as Lord Hoffman stated in R(Begum) v Tower Hamlets London Borough Council, the initial decision-making process needs to be “fair” at the very least.

Given that the government’s proposals render the relevant police officer a Janus-faced arbiter whose duty to protect the public irreconcilably conflicts with the duty to independently and impartially assess the sex offenders’ right to a review, it is difficult to regard the proposals as fair. Accordingly, the government could well be  leaving itself vulnerable to further human rights challenges which could cause even more ill-feeling.

The Joint Committee on Human Rights has invited submissions on this issue by 19 July 2011 – click here for more information, and here for the committee’s letter to the Home Secretary asking for more information on the proposed order.

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