Faculty sounds human rights warning over proposed sexual risk orders

The sexual risk orders proposed to be introduced under the Scottish Government's Abusive Behaviour and Sexual Harm (Scotland) Bill might fall foul of human rights law, the Faculty of Advocates has warned.

In its written evidence on the bill to Holyrood's Justice Committee, Faculty highlights the issues arising from the proposal to impose orders on people who have not been convicted of a criminal offence.

The sexual risk order (SRO) would be a civil preventative order which would be granted by a sheriff for a minimum of two years. It could be made where the behaviour of a person not convicted of an offence indicates a risk that others may be harmed and early intervention is necessary to prevent that harm. Breach of a SRO would be a criminal offence, carrying a jail term of up to five years.

“Depending on the particular circumstances of a case and the particular prohibitions and/or requirements contained in a sexual risk order made in the absence of a prior criminal offence, the Faculty considers it possible that the order would infringe article 5 (the right to liberty) and article 8 (the right to respect for private and family life) of the European Convention on Human Rights,” Faculty states.

It also registers concern about the lack of a right to be heard before a SRO is made, and the absence of flexibility as to the minimum period in a SRO, adding: “Further, the possibility of unlimited applications for renewal gives rise to a risk that an individual who has never committed an offence may end up being subject to a sexual risk order for life.”

In other comments on the bill, Faculty welcomes the proposed statutory aggravation of abusive behaviour, and the new offence to tackle "revenge porn". It opposes the introduction of mandatory jury directions in certain circumstances, believing that the content of directions is best left to the trial judge in the particular case.

Click here to view the full evidence.