Key to compliance

On 25 October, Justice Secretary Kenny MacAskill announced the Sexual Offences Act 2003 (Remedial) (Scotland) Order 2010 (SSI 2010/370), introducing review mechanisms for sex offender notification requirements under Scots law, with immediate effect.

Mr MacAskill invoked s 14 of the Convention Rights (Compliance) (Scotland) Act 2001, which gives Scottish Ministers the power to make remedial orders amending certain enactments deemed incompatible with the European Convention on Human Rights (ECHR) without first gaining the approval of the Scottish Parliament, in matters of urgency.

Orders are subject to a 60 day consultation period whereby interested parties may make written observations ahead of presentation to the Parliament. A resolution must be passed by the Parliament within 120 days approving the order, without which it will cease to have effect. Assuming that the Parliament will pass such a resolution, the Scottish courts could face a backlash of appeals.

The law, as governed by the Sexual Offenders Act 1997 and amended by the Sexual Offences Act 2003, was that the most serious sex offenders (those sentenced to custody for a period greater than 30 months) were subject to the imposition of an indefinite period of notification on the sex offenders' register without the opportunity for review (2003 Act, ss 81-82). The notification requirements oblige a convicted sex offender to, among other things, register with the police within three days of release from detention, change of address or change of name.

Registration is required every year thereafter, along with notification of all travel plans. The remedial order does not seek to change this process but to provide the opportunity for review, with a view to removal from the register, after 15 years (if over the age of 18 on commission of the crime) or eight years (if under 18).

Bowing to the inevitable

This pronouncement was driven by the impending decision of the Court of Session Inner House in the case of A v Scottish Ministers, in which the petitioner claimed that the absence of individual review for notification requirements was contrary to his article 8 ECHR right to respect for private and family life. Mr A was convicted and sentenced to four years' detention, in 1995, for offences committed at the age of 14, including assault with intent to rape.

The decision, on appeal from the Outer House, hinges on the UK Supreme Court ruling in R(F) v Secretary of State for the Home Department [2010] UKSC 17; [2010] 2 WLR 992 that ss 81 and 82 of the Sexual Offences Act 2003 were incompatible with the ECHR insofar as they did not offer the opportunity for review, confirming the declaration of incompatibility under s 4 of the Human Rights Act issued by the Divisional Court and upheld by the Court of Appeal. As the appeal was taken from a court within the jurisdiction of England & Wales, the decision has no automatic effect in Scotland and the Court of Session is not bound to follow its outcome. However, the decision by Mr MacAskill to take steps to amend the 2003 Act signifies a realisation, by the Scottish Ministers, of the inevitable conclusion that the Inner House will reach in their upcoming judgment.

Continuing protection

The order has induced sensational headlines such as "Paedophiles and rapists get right to appeal sex register". Provoked by such a statement, it may seem to the victims that their human rights are being foregone, but the move to allow for a review of notification does not, or should not, signify a decrease in the protection of their rights. Both the Divisional Court and the Court of Appeal recognised that "the notification requirements interfered with article 8 rights, that the interference was in accordance with the law and that it pursued legitimate aims, namely the prevention of crime and the protection of the rights and freedoms of others" (R(F) at para 4). The issue concerns offenders who can establish that they are no longer a threat. For them, the absence of a review mechanism makes the punishment disproportionate to the aims.

Release from notification will only be granted to such people. In reviewing the extent to which the value of the notification system would be eroded by the introduction of review procedures, the Supreme Court noted: "it is open to the legislature to impose an appropriately high threshold for review" (at para 57), meaning that where there is any significant risk of reoffending, the individual will remain subject to notification requirements indefinitely.

Sarah Mennie, Scottish Human Rights Law Group