A commentary and resource on Law and Sexuality by Professor Chris Ashford and guests
The current media obsession with attacking human rights law appeared to receive a further boost this last week with the announcement by UK Home Secretary, Teresa May, that the government would be introducing the right to request a review as to whether one should remain on the sex offenders register. This followed a decision by the UK Supreme Court last year. Let’s begin with May’s statement which is worth reading in full:
‘The sex offenders’ register has existed since 1997. Since that time it has helped the police to protect the public from these most horrific of crimes.
Requiring serious sexual offenders to sign the register for life – as they do now – has broad support from across this House.
However, the Supreme Court ruled last April that not granting sex offenders the opportunity to seek a review is a breach of their human rights – in particular, the right to a private or family life. These are rights, of course, that these offenders have taken away from their victims in the cruelest and most degrading manner possible.
The government is disappointed and appalled by this ruling – it places the rights of sex offenders above the right of the public to be protected from the risk of re-offending – but there is no possibility of further appeal.
This government is determined to do everything we can to protect the public from predatory sexual offenders. And so we will make the minimum possible changes to the law in order to comply with this ruling.
I want to make clear that the Court’s ruling does not mean that paedophiles and rapists will automatically come off the sex offenders’ register. The Court found only that they must be given the right to to seek a review.
The Scottish government has already implemented a scheme to give offenders an automatic right of appeal for removal from the register after 15 years. We will implement a much tougher scheme.
Offenders can only apply for consideration of removal after waiting 15 years following release from custody – in England and Wales there will be no automatic appeals.
We will deliberately set the bar for those reviews as high as possible. Public protection must come first.
A robust review, led by the police and involving all relevant agencies, will be carried out so that a full picture of the risks to the public can be considered.
The final decision of whether an offender should remain on the register will be down to the police, not the courts, as in Scotland – the police are best placed to assess the risk of an offender committing another crime, and they will rightly put the public first.
There will be no right of appeal against the police’s decision to keep an offender on the register. That decision will be final.
Sex offenders who continue to pose a risk will remain on the register and will do so for life, if necessary.
Finally, I can tell the House today that the Deputy Prime Minister and Justice Secretary will shortly announce the establishment of a Commission to investigate the creation of a British Bill of Rights.
It is time to assert that it is Parliament that 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.
I commend this statement to the House.’
The Court dismissed the appeal of the Secretary of State, and held that the notification requirements in and under the 2003 Act were capable of causing significant interference with article 8 rights; that if some of those who were subject to lifetime notification requirements were able to demonstrate that they no longer posed any significant risk of committing further sexual offences there was no point in subjecting them to that interference with their article 8 rights and doing so could only impose an unnecessary and unproductive burden on the responsible authorities; that the degree of risk of sexual offenders re-offending had to be assessed in a number of situations and there had to be circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence could be discounted to the extent that continuance of notification requirements was unjustified; that it was open to the legislature to impose an appropriately high threshold for such a review; and that, accordingly, the indefinite notification requirements constituted a disproportionate interference with article 8 rights because they made no provision for individual review of the requirements and the declarations of incompatibility made by the Divisional Court would stand.