The Article 8 rights of sex offenders

24 February 2011

A recent decision of the Supreme Court has unleashed a populist wave directed at the European Court of Human Rights and European judges generally.

In R (on the application of F and FC) v Secretary of State for the Home Department (2010) UKSC 17 the court decided that section 82 of the Sexual Offences Act 2003, which prevents any review whatsoever of the Violent and Sex Offenders Register provisions for any sex offender sentenced to more than 30 months in jail, is incompatible with Article 8 of the European Convention on Human Rights. The Prime Minister, supported by the Home Secretary, attacked the ruling as appalling and sent out a message to any judges who were listening about a general need for sanity on their part and a need for them to recognise that decisions on such topics were to be made by Parliament and not by them.  Grudgingly, it seems, the Government is contemplating allowing those on the Register for life to apply after 15 years to have the terms of their registration reviewed.

What are the obligations under the Sex Offenders Register?  The obligations arise under ss 85-86 of the Sexual Offences Act 2003.  Registrants have to give their full name, home address, date of birth, national insurance number and vehicle details and to notify the police within three days of any changes.  They also have to notify the police at least seven days in advance of any intention to leave the UK for a period of three days or more and they must confirm their registration annually.  Indefinite orders affect those sentenced to 30 months or more for a relevant sex offence.   Rather like the Rehabilitation of Offenders Act 1974, there is then a sliding scale so that those imprisoned for between six and 30 months would have their names on the Register for 10 years whereas those receiving a conditional discharge would have their names on the register for the duration of the discharge and those under 18 have their names on the Register for half the adult tariff period

One has to navigate in such matters between the ‘castrate the lot of them and throw away the keys’ brigade and the advocates of the supremacy of human rights of particularly repellent and often dangerous offenders who violate the rights of their vulnerable victims.  When one looks at it dispassionately, the courts have done a pretty good job of steering the course.  The decision upheld unanimously by the Supreme Court was likewise unanimously made by the Divisional Court [2008] EWHC 3170 and the Court of Appeal [2009] EWCA 792.  As Lord Phillips pointed out in the Supreme Court, the importance of the legislative objective in this instance has never been in doubt.  The prevention of sexual offending is of great social value and no one in the Supreme Court suggested that insofar as notification requirements play a useful role in assisting to achieve this objective, they are not a proportionate means of doing so.  The debate, as Lord Phillips said, has been as to the necessity and utility of imposing notification requirements for life without any review.  When one considers the proportionality of what is undoubtedly (and necessarily) an interference with Article 8 rights, the issue is whether that degree of interference is proportionate, bearing in mind that the real issue is not the often horrific nature of the offences, but the fact that whatever the offence and whatever the altered circumstances of the individual offender there can be no review whatsoever in cases where a term of imprisonment of 30 months or more has been imposed,.  As was pointed out in the Court of Appeal, the penalties for non-observance of the Register’s requirements can be very severe: for example, the failure to give three days notice of intention to travel overseas could potentially lead to five years in prison even where there could be something approaching a reasonable excuse.

We are all painfully aware of very serious offences extending to murder that have been committed by previously convicted sexual offenders, but sexual offences encompass a variety of sins.  The reporting restrictions could 15 years down the road have proved then to be too onerous or to need alteration.  The offender could be in a wheelchair and no longer a threat to society.  The applicant is likely to have to satisfy a distinctly sceptical senior police officer that the conditions need review.   It is a matter of common sense.  A declaration of incompatibility does not change the law.  It gives early warning of what is down the road in the European Court of Human Rights and potential compensation claims by particularly undeserving claimants.  It is up to Parliament to change the law and this surely can be done in a less hysterical manner.

See further section 7.7 of the Privacy Law Handbook