Sex offender review provisions meet human rights law, court rules
The legislation providing that certain sex offenders subject to mandatory notification requirements for an indefinite period must wait 15 years before seeking a review of the requirements does not infringe their human rights under the European Convention, the Court of Session has ruled.
Three judges led by the Lord Justice Clerk, Lord Carloway, upheld an Outer House decision and rejected a petition for judicial review by Philip Main, who was sentenced to various terms for offences of lewd practices, covert filming, and taking indecent photographs, all involving children. Because of an extended sentence of four years on one charge, of which four months was to be served in prison, he became subject to the notification requirements under s 82 of the Sexual Offences Act 2003 for an indefinite period. He contended that the absence of a right of review until 15 years after his release from prison, in terms of the 2011 Order introducing the review provisions, was incompatible with his right to respect for his private life under article 8(1) of the Convention.
The petitioner's challenge was based on the absence of review being disproportionate to the public safety aim of the measures. He argued that the Lord Ordinary had failed to consider whether provision could be made for an earlier review, as a less intrusive means of achieving that legitimate aim. The requirements were a grave stigma and amounted to an onerous restriction on his life. It was not a question of the length of time; he should be able to apply for a review at any time after his release from custody, depending on his particular circumstances.
Lord Carloway noted that the 15-year rule only applied to adults convicted of a sexual crime and sentenced to 30 months' imprisonment or more. Before selecting the review period, the Scottish ministers and the Parliament had before them three key studies which, in summary, found that there was no time at which it could be concluded that a sex offender presented no risk of reoffending. A significant number reoffended after a long period of years. The notification requirements were the lowest level of control for offenders; it was permissible under human rights law to apply general measures to a predefined class of individuals, and there was no basis for concluding that a less drastic measure would have the same impact as that selected in terms of reducing reoffending.
Lord Drummond Young said that in assessing proportionality, "the critical question is in my view the degree of intrusion that is involved, in particular the practical effects that that intrusion would have on the lives of the individuals who are affected". The task of evaluation was frequently difficult, involving the weighing of a range of factors, and a period of 15 years was one that was within the reasonable range that the legislature as the primary decision-making body might select.
Lord Malcolm added: "The court has said that there is a need for a review bringing [the offender's] particular circumstances into focus, but it by no means follows that a right of review must be exercisable at will, and as often as requested". There was no question of arbitrariness or irrationality in the choice of a 15-year review period.