Sex offenders win challenge over register

A teenager convicted of rape when aged 11 and a man in his 50s guilty of indecent assault have won the right to challenge their inclusion on the UK's sex offenders register

 

Under section 82 Sexual Offences Act 2003 all persons sentenced to 30 months’ imprisonment or more for a sexual offence become subject to a lifelong duty to keep the police notified of where they are living and of travel abroad (‘the notification requirements’). There is no right to a review of the necessity for the notification requirements at any time.

 

Two convicted sex offenders subject to the notification requirements brought claims for judicial review claiming that the absence of a right of review of the requirements rendered them a disproportionate manner of pursuing the legitimate aim of preventing crime and thereby breached their right to privacy protected by Article 8 of the European Convention on Human Rights.

 

The Divisional Court granted the respondents’ claims and made a declaration that s 82 (1) Sexual Offences Act 2003 was incompatible with Article 8. This was upheld, on the Secretary of State's appeal first to the Court of Appeal and now to the Supreme Court.

 

Lord Phillips (with whom all the members of the court agreed) stated that the issue in the case was one of proportionality. It was common ground that the notification requirements interfered with the offenders’ rights to privacy, that the interference was in accordance with the law and that it was directed at the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others.

 

If someone subject to the notification requirements could demonstrate that they no longer posed any significant risk of committing further sexual offences, there was no point in subjecting them to the interference with their Article 8 rights, which would then merely impose an unnecessary and unproductive burden on the responsible authorities. The critical issue was whether a reliable risk assessment could be carried out in the case of sex offenders. The research into reoffending rates relied on by the Secretary of State showed that 75% of the sexual offenders who were monitored over a 21 year period were not reconvicted. There must be some 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 the notification requirements was unjustified. The existence of review provisions in other countries with similar registration requirements for sex offenders suggested that a review exercise was practicable.

R (on the application of F (by his litigation friend F)) and another (Respondents) v Secretary of State for the Home Department (Appellant) [2010] UKSC 17

Date Added: 21st April 2010