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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 189
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OPINION OF LORD TURNBULL
in the Petition of
MR. A
Petitioner;
against
THE SCOTTISH
MINISTERS and THE ADVOCATE GENERAL FOR SCOTLAND
Respondents:
For
Judicial Review of
the imposition on him for an indefinite period of notification requirements
without provision for review in terms of the Sex Offenders Act 1997 and the
Sexual Offences Act 2003
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Petitioner: O'Neil, Q.C., Ross; Balfour + Manson LLP (for Taylor & Kelly)
Respondents: Keen, Q.C., Mure; Office of the Solicitor to the Scottish
Executive
Advocate General: Lindsay
27 November
2007
Introduction
[1] The
petitioner is a 28 year old man who, by permission of the Court, is designed as
Mr A. On 22 December 1993
he pled guilty at the High Court in Airdrie to two charges of assault with
intent to rape, one of which included an element of robbery, a separate charge
of theft and a charge of malicious damage. On 10 January 1994 a cumulo sentence of 4 years detention
in a Young Offenders' Institution was imposed. At that date the petitioner had
just reached his fifteenth birthday. The offences to which he pled guilty were
committed in July and September of 1993 when he was fourteen years old. The
petitioner avers that his sentence was imposed to date from 10 September 1993 and that it expired on 9 September 1997. The respondents
admit these averments. However the signed Extract Sentence, Warrant of
Detention and Return of Sentence lodged as number 6/1 of process records that
the sentence was to date from 10
January 1994, the date of imposition. The effect of this is that
the petitioner's sentence would have expired on 9 January 1998. Neither of these differences have any
significant impact on the arguments advanced.
[2] On
1 September 1997
the Sex Offenders Act 1997 ("the 1997 Act") came into force. It applied to Scotland.
The provisions of Part 1 of the 1997 Act applied to any person who as at that
date was serving a sentence of imprisonment in respect of any sexual offence to
which the Act applied. It is agreed that the petitioner fell within this
category. Part 1 of this Act contained a
scheme for notification to the police of certain information by those to whom
the Act applied. Section 1(4) of the 1997 Act set out that persons convicted of
a qualifying offence were to continue to be subject to the notification
requirements of the Act for differing periods, determined by reference to the
sentence imposed by the original Court before whom they were convicted. So far
as persons sentenced to imprisonment for life or for a term of 30 months or
more were concerned the applicable period was for "an indefinite period".
Periods of 10, 7 and 5 years were applicable to persons sentenced to imprisonment
for lesser periods or otherwise disposed of. Section 4 of the 1997 Act related
to young sex offenders. Subsection (2) was in the following terms:
"In the case of
a person who is under 18 on the relevant date, section 1(4) above shall have
effect as if for any reference to a period of 10 years, 7 years or 5 years
there were substituted a reference to one-half of that period."
The result was therefore that young
offenders convicted of a qualifying offence for which the disposal was less
than a period of 30 months detention would be subject to the notification
requirements for one half of the period which would apply to an adult receiving
the same sentence or disposal. However, young sex offenders committing a sexual
offence which resulted in a sentence of 30 months detention or more, as with
adult offenders, were to be subject to the notification requirements for an
indefinite period.
[3] The
scheme for notification of information was amended with effect from 31 May 2001 by section 66 of and
Schedule 5 to the Criminal Justice and Court Services Act 2000 ("the 2000
Act"). With effect from 1 May 2004 the entire scheme for
notification was replaced by the provisions of the Sexual Offences Act 2003
(the "2003 Act"). By this petition for judicial review the petitioner seeks
declarator that the continued application of the provisions of sections 81 and
82 of the 2003 Act, without the possibility of any review to consider the
variation or ending of his obligation to comply with the notification
requirements, is incompatible with his right to respect for private and family
life in terms of Article 8 of the European Convention on Human Rights ("the
Convention"). In addition he seeks
declarator that the continued application of the provisions in the manner described
is incompatible with his right of access to the Court for proper determination
of his civil rights under Article 6 of the Convention and declarator that the
continued application of the provisions in the manner described is incompatible
with his right to enjoy his Convention rights and freedoms without
discrimination under Article 14 of the Convention. These remedies are sought
under the terms of the Human Rights Act 1998. He seeks a further order of
declarator that, in maintaining a regime under which the provisions of the 2003
Act apply to the petitioner in the way described, the Scottish Ministers have
acted and continue to act unlawfully. In seeking this remedy he relies on the
terms of the Scotland Act 1998.
The Notification Requirements
[4] The
terms of the 1997 Act required a person subject to its provisions to notify the
police of the name or names he used at the date of his conviction, his date of
birth and his home address as at the date of conviction. Such notification
required to be provided within 14 days, excluding any time spent serving any
sentence of imprisonment. Such a person was also required to notify any change
of name or home address within 14 days of such change, and the address of any
premises at which he stayed for a period of 14 days or longer. Notification was
to be provided by attendance at any police station within the person's local
police area whereupon oral notice could be given to any police officer, or by
sending written notification to such a police station. Failure without
reasonable excuse to comply with the notification requirements gave rise to
criminal liability. The Sex Offenders Act 1997 - Guidance for Agencies issued
by the Scottish Executive, number 7/1 of process, explains the process of risk
assessment which the police were expected to carry out in conjunction with the
local authority social work service once they received information about sex
offenders. Depending on the level of risk posed a simple desk assessment with
an annual check on the offender's address might be deemed sufficient. Where a
medium or high risk was thought to be present a full risk assessment and
consideration of how that risk should be managed was envisaged, with a final
decision on the police response deemed a matter for the police themselves.
[5] In
terms of Schedule 5 to the 2000 Act the time limit within which the initial
information was to be provided by a person concerned was reduced to 3 days. The
opportunity to provide this initial information in writing was removed and
power was given to permit police officers to take the photograph and
fingerprints of a person providing initial information. Power was also given to
the Secretary of State to make regulations requiring persons subject to the
notification requirements to provide information as to dates of travel from and
to the United Kingdom
and as to certain of his movements while outside the United
Kingdom. By Statutory Instrument No.188 of
2001, which came into force on 1 June 2001, regulations were implemented
requiring persons subject to the notification requirements who intended to
leave the United Kingdom for a period of eight days or longer to provide
certain information as to their travel arrangements and destinations.
Notification of this information required attendance at a police station.
[6] The
notification requirements provided for by the 1997 Act as amended were replaced
by those found within section 81 to 87 of the 2003 Act. The Scottish Parliament
passed a "Sewell motion" on 20 March
2003 agreeing that the terms of the Sexual Offences Bill ought to
be considered by the United Kingdom Parliament. Persons affected by the 2003
Act are referred to as "relevant offenders". A relevant offender (such as the
petitioner) must, in addition to the previous requirements, now provide
notification of his national insurance number. A relevant offender must now
notify any changes to his name or address within a period of 3 days and must
notify any address at which he resides for a period of seven days or more or at
which he resides for two or more periods within a 12 month period which taken
together amount to 7 days. The 2003 Act also introduced a requirement for
periodic notification such that a relevant offender is now obliged to reconfirm
his notified details annually. All forms of notification now require to be
provided by personal attendance at a police station and police officers now
have the power both to photograph any part of the relevant offender and to take
his finger prints each time he provides the required notification, either by
way of periodic notification or by way of change of details. As before,
authority is given to the Secretary of State to make regulations providing for
information regarding travel from the United
Kingdom. The police remain responsible for
performing risk assessment with no further development of this role set out in
the Guidance on Part 2 of The Sexual Offences Act 2003 issued by the Home
Office (number 7/2 of process). No alteration was made by the 2003 Act to the
periods throughout which relevant offenders are to be subject to the
notification requirements and, in keeping with the scheme since its
introduction, no facility for any form of review of the continued applicability
of the notification requirements to a relevant offender is provided. Failure
without reasonable excuse to comply with the notification requirements remains
a criminal offence.
[7] By
Scottish Statutory Instrument No. 205 of 2004 alterations were made to the
notification requirements in relation to foreign travel. The previous
arrangements now apply to a relevant offender who intends to leave the United
Kingdom for a period of three days or
longer.
[8] The
Police, Public Order and Criminal Justice (Scotland)
Act 2006 introduced further amendments which affect relevant offenders. Power
is given to a constable to require the relevant offender to attend at a police
station for the purpose of providing such relevant physical data as the
constable considers reasonably appropriate. With the authority of an officer of
a rank no lower than inspector, the constable may take samples of hair, a
sample from a finger or toe nail, a swabbing of blood or other body fluid,
tissue or other material from an external part of the body and a swabbing of
saliva or other material from inside the person's mouth. These powers may only
be exercised once unless the samples have been lost, destroyed or are
insufficient for the particular means of analysis. The information which a
relevant offender requires to provide at initial and annual notification is extended
to include details about any passport which he holds. Finally, power is given
to the Sheriff to grant, on the application of a senior police officer, warrant
authorising entry to the address occupied by the relevant offender if he is
satisfied that an examination and search of the premises and the things in them
would assist in assessing the risk of the offender committing a sexual offence.
The Sheriff may only grant such a warrant if he is satisfied that on more than
one occasion a constable has attempted, without success, to examine and search
the premises for this purpose.
Article 8 of the European Convention on Human Rights and Fundamental
Freedoms
[9] Article
8(1) of the Convention provides that everyone has the right to respect for his
private and family life, his home and his correspondence. It was agreed between
the parties that the notification provisions imposed upon the petitioner
constituted an interference with his rights as so guaranteed. Article 8(2) of
the Convention provides as follows:
"There shall be
no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well being
of the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of rights and freedoms of others."
It was accepted by the respondents
that the notification requirements imposed upon the petitioner, initially in
terms of the 1997 Act and now in terms of the 2003 Act, constituted an
interference with the rights guaranteed to the petitioner under Article 8 of
the Convention. It was accepted on behalf of the petitioner that the
interference with his convention rights was in accordance with law and that the
measures provided for by the relevant statutory provisions were in principle
aimed at ends which were legitimate for the purposes of Article 8(2). The
complaint made was that the measures imposed conflicted with the principle of
proportionality as reflected in the need for any such interference to be
"necessary in a democratic society".
The Petitioner's Submissions
[10] Submissions for the petitioner were presented by Miss Ross and
Mr O'Neil QC. Miss Ross sought to set a context within which to present her
submissions by outlining the impact which the notification requirements have on
the petitioner. The fact that he had to inform the police where he lived served
to identify who he lived with. Police officers visited his home on a monthly
basis and, it was said, adopted an unpleasant attitude when doing so. They
asked him questions about his circumstances and his girlfriend. They had on
occasion spoken to his girlfriend and her family about his status. It was
explained that as an individual who was now an adult these interferences with
his personal life served to constantly remind the petitioner of the offence
committed whilst he was a teenager. They were stigmatising and with each visit
he was reminded that he would never be free of this level of supervision and
able to put his past behind him. It was accordingly against this factual
background that Miss Ross sought to examine the proportionality of the
legislative requirements. In doing so she submitted that when considering a
judicial review alleging a violation of a Convention right the Court was
empowered to conduct a much more rigorous and intrusive review than was once
thought to be permissible. She submitted that the starting point for the Court
was the three stage test as set out by the Privy Council in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and
Housing [1999] 1AC 69. She referred me to the decision of the Board as
given by Lord Clyde at page 80 where he said that in determining whether a
restriction (by an act, rule or decision) is arbitrary or excessive the Court
should ask itself:
"whether: (i)
the legislative objective is sufficiently important to justify limiting a
fundamental right; (ii) the measures designed to meet the legislative objective
are rationally connected to it; and (iii) the means used to impair the right or
freedom are no more than is necessary to accomplish the objective."
[11] It was the third of these three considerations to which Miss
Ross principally addressed her submissions. That the burden lay with the State
to show that the legislative means adopted were no greater than necessary was
clear she said from what had been said by Lord Steyn in R v Lambert [2002] 2 AC 545. She went on to submit that the way in which the Court ought to apply the
test set out in de Freitas could be
seen from the speech of Lord Hope of Craighead in R v Shayler [2003]
1AC 247 at 281 where he explained that in considering the doctrine of
proportionality the Court had to consider the matters identified by Lord Clyde, the third of which he described as
being:
"whether the
means used impair the right as minimally as is reasonably possible."
Reliance was also placed upon what
Lord Hope went on to say in the following sentence, namely:
"As these
propositions indicate, it is not enough to assert that the decision that was
taken was a reasonable one. A close and penetrating examination of the factual
justification for the restriction is needed if the fundamental rights enshrined
in the Convention are to remain practical and effective for everyone who wishes
to exercise them."
The practical effect of this
approach was clear it was said from what Lord Hope went on to say at page 283:
"69. The problem
is that, if they are to be compatible with the Convention right, the nature of
the restrictions must be sensitive to the facts of each case if they are to
satisfy the second and third requirements of proportionality. The restrictions
must be rational, fair and not arbitrary, and they must impair the fundamental
right no more than is necessary."
[12] Having set out the approach which she submitted the Court ought
to take in its examination of the restrictions complained of, Miss Ross then
moved on to explain the ways in which she submitted the restrictions imposed
failed to meet the rigours of the doctrine of proportionality. It was said that
the restrictions imposed upon the petitioner were insufficiently fact sensitive
to the circumstances of his own case. The relevant requirements had been
imposed by operation of the general law rather than there being any form of
decision as to what would be appropriate to the circumstances of his case. Such
a blanket imposition of requirements she said could never meet the need for
restrictions to be fact sensitive. There had been no assessment of what risk
the petitioner posed of re-offending. There had been no regard paid to his age
at the time, nor to the element of his sentence which was properly to be
attributed to the sexual offence of which he was convicted. There was no
opportunity for review of the ongoing requirements. This was of particular
significance given the petitioner's age at the time of his offending and the
indefinite nature of the notification requirements imposed. The fact that there
was no right of appeal to a Court or administrative tribunal against being made
subject to the notification requirement was evidence of a lack of any
procedural protection which of itself went to show that the requirements of
proportionality were not met by the legislation. In addition, it was said that
as time had gone on the nature of the restrictions to which the petitioner was
subject had become more stringent, again without any corresponding measure of
the nature of any risk which he might in fact pose.
[13] The argument as to the lack of proportionality to be found in
the legislative provisions complained of was further advanced by drawing a
comparison with legislation which sought to restrict the rights of prisoners to
vote. In this regard reliance was placed on the decision of the Canadian
Supreme Court in Suave v The Attorney General of Canada (No. 2) [2002] SCC 68 and the decision
of the Grand Chamber of the European Court of Human Rights in Hirst v UK (No. 2) (Application 74025/01)
decision dated 6 October 2005
[14] It was also submitted that there was a duty owed to
periodically review the compatibility of national measures with the
requirements of the Convention, as even if requirements imposed were
proportional at the time of imposition that might change as time passed with
the result that they then became unjustified. In support of this submission
counsel referred to the speech of Lord Nicholls in R (Seymour Smith) v Department
of Employment, [2000] ICR 244 at page 261where he said:
"The
requirements of Community law must be complied with at all relevant times. A
measure may satisfy Community law when adopted, because at that stage the
minister was reasonably entitled to consider the measure was a suitable means
for achieving a legitimate aim. But experience of the working of the measure
may tell a different story. In course of time the measure may be found to be
unsuited for its intended purpose. The benefits hoped for may not materialise.
Then the retention in force of a measure having a disparately adverse impact on
women may no longer be objectively justifiable. In such a case a measure,
lawful when adopted, may become unlawful."
Reference was also made to the
decision of the European Court of Human Rights in Riener v Bulgaria (Application no.
46343/99) decision dated 23 May 2006,
at paragraph 121 in support of the same submission.
[15] As counsel made clear it was not her argument that the concept
of some form of register for those responsible for sexual offences was
incompatible with the requirements of the Convention. She acknowledged that the
compilation of such information might well go to securing public protection.
The deficiency she argued was that the purpose of the requirements as imposed
was to enable risk assessment. This she said was clear from an examination of
the policy as seen in the various discussion papers produced. However the
choice of means to achieve that end failed to include any form of
discrimination. Because the requirements are imposed in a blanket fashion the rights
of those who present a low risk are affected in the same way as are the rights
of those who present a high risk. Or to put it another way a very low risk
offender is covered by high risk provisions. This she said is not in compliance
with Lord Hope's test of whether the means used impaired the right as minimally
as is reasonably possible. As she pointed out, even if the police who have the
responsibility of managing the system for ingathering and storing the relevant
information, were of the view that an individual was no longer of any risk at
all, there was no mechanism by which he could be relieved of the obligations
imposed. It would, she argued, be entirely possible to construct a more
sophisticated scheme which took into account the individual's own circumstances
in selecting the level of restriction imposed, along with a provision for
review which would permit proper and individual risk assessment. Such a scheme
she argued would better serve the legitimate need for public protection.
[16] Although Miss Ross had in her own submissions made some
reference to proceedings before the Justice 2 Committee of the Scottish
Parliament she submitted that in considering the proportionality of the terms
of the requirements imposed it was not legitimate for me to give consideration
to anything which might have been explained by Ministers to Parliament.
Accordingly, it was argued that there would be no relevance in any references
made by the respondents to Hansard reports. There was no provision for review
within the legislation and there was no need to look beyond that.
[17] Miss Ross acknowledged that the proportionality of the
legislative provisions contained within the 1997 Act had been considered by the
European Court of Human Rights in the case of Adamson v United Kingdom
(1999) 28 EHRR CD 209. Although the Court in that case rejected the claim that
the provisions were incompatible with the terms of Article 8 of the Convention
she argued that the decision ought not to influence my own assessment of the
petitioner's claim for two reasons. Firstly, the finding was specific and
limited to the particular facts as set out in Adamson and secondly the notification provisions of the 1997 Act
were far less draconian that those of the 2003 Act.
Article
6 of The Convention
[18] As part of the petitioner's argument on the proportionality of
the legislative provisions it was also argued that the absence of any procedure
whereby the petitioner could apply to a Court to review the impact of the terms
of the 2003 Act on his Article 8 rights of itself constituted an
infringement of his rights in terms of Article 6 of the Convention.
Article
14 of the Convention
[19] Article 14 of the Convention provides:
"The enjoyment
of the rights and freedoms set forth in this Convention shall be secured
without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association
with a national minority, property, birth or other status."
A further and separate argument was
advanced as focussed in the second declarator sought and the second plea in
law. This argument was that the provisions which permitted interference with
the petitioner's right to respect for his privacy and family life were applied
in a way which breached the anti-discrimination provisions of Article 14 of the
Convention. The way in which this occurred was that, although the petitioner
was a child when he perpetrated and was convicted of the relevant offences, the
national measures treated him in the same way as an adult who perpetrated a
relevant offence. Article 14 of the Convention required like cases to be
treated alike and unlike cases to be treated differently. Age was a status for
Article 14 purposes and in penal law adult and child offenders are treated
differently for good reasons. My attention was drawn to what had been said in Ghaidan v Godin-Mendoza [2004] 2AC 557, Thlimmenos v Greece
(2003) 31 EHRR 411, Nelson v United Kingdom
(1986) 49DR 170 and R (Smith) v Home Secretary [2006] 1 AC 159.
[20] In both the 1997 Act and the 2003 Act it was said that one
could find recognition of the need to treat young sex offenders and adult sex
offenders differently. Each provided that a young sex offender who was
sentenced to a period of less than 30 months detention was subject to the
notification requirements for one-half of the period for which an adult sex
offender sentenced to the same period was to be subject. There was no
justification for so treating some, but not all, young sex offenders. Accordingly
the petitioner was discriminated against in two ways. He was not treated in the
same way as others in the class of young offenders and he was treated in the
same way as unlike cases, namely those of adult sex offenders.
The
Scotland Act
[21] The third declarator sought by the petitioner and the third
plea in law on his behalf relate to the first respondents' devolved competence.
It was argued that they had brought into effect the legislative provisions
under challenge by making the Sexual Offences Act 2003 (Commencement)
(Scotland) Order 2004 (S.S.I. 2004 No. 138) in exercise of their powers in
terms of section 141(1) of the 2003 Act and in terms of the Scotland Act 1998.
This was a positive act on the part of the first respondents which brought into
force the Convention incompatible provisions of the 2003 Act in Scotland
and applied them to the petitioner. Since it was said that the terms of the
2003 Act were incompatible with the petitioners Convention rights it was ultra vires of any member of the Scottish
Executive to make the commencement order.
Senior
Counsel
[22] In presenting his submissions for the petitioner Mr O'Neil QC
reinforced the opposition to the use by the respondents of Hansard extracts, as
he put it, in an attempt to shore up and provide support for the Executive's
claims as to the policy behind their enactment of the legislative provisions
under scrutiny. He submitted that such a purpose went beyond the ratio of Pepper v Hart [1993] AC 593. In
advancing this argument Mr O'Neil placed emphasis on what had been said by Lord
Nicholls in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 at 843 where he pointed out that the proportionality of legislation is
to be judged on the basis of the language used by Parliament rather than the
quality of the reasons advanced in support of it in debate. However Mr O'Neil
also drew attention to the fact that the Grand Chamber of the European Court of
Human Rights in Hirst v United Kingdom and the Court of Appeal
in England in Westminster City Council v Morris [2006] 1WLR 505 had both taken
account of the effect of an apparent absence of debate in Parliament on
questions of proportionality, or the potential discriminatory impact of the
respective provisions under scrutiny. The lack of any proper consideration by
Parliament as to the way in which the terms of the 1997 Act or the 2003 Act
might impact upon the Convention rights of those affected was evident from an
attempt to examine what the aim of the legislative provisions was.
Consideration of the relevant material demonstrated a changing and confused
approach to the purpose of the provisions, which of itself went to demonstrate
that there was an absence of reasonable relationship between the means employed
and the aim sought to be realised. To this end my attention was drawn to number
7/6 of process, the Hansard extract for 14 March
1997. There, Mr O'Neil said, one could see that in the mind of the
promoter of the then Bill the registration provisions were aimed at the menace
posed by paedophiles. By the time the 2002 White Paper, "Protecting the Public:
Strengthening protection against sex offenders and reforming the law on sexual
offences", number 7/4 of process
was published the scheme was being presented as one of general public
protection. A reading of number 7/5 of process, the Expert Report Reducing the
Risk: Improving the response to sex offending, he said demonstrated that by the
time the amendments introduced by the 2003 Act were put in place the aim had
become risk assessment. Mr O'Neil
conducted an analysis of each of these apparent aims individually and sought to
demonstrate why, in each case, there was either no rational relationship
between the apparent object and the means employed to address it, or a failure
to comply with the need to impair the right as minimally as is reasonably
possible. On his argument the provisions complained of could be seen to be
imposed by blanket requirement without regard to individual circumstances and
could be seen to be deficient on account of being either over or under
inclusive. In this regard he referred me to the discussion as to
proportionality and the effectiveness of the measures chosen to be found in the
decision of the House of Lords in A v Secretary of State for the Home Department
[2005] 2 AC 68 and in particular to the speech of Lord Bingham of Cornhill at
pages 102 to 103 and pages 110 to 111.
[23] Mr O'Neil also sought to emphasise the importance of the
Court's role in judicial review of legislation. He re-iterated the proposition
that it was proportionality not in the abstract but in the context of the facts
of the individual complainant which mattered. He drew attention to the way in
which the European Court of Human Rights had explained this in Hakansson and Sturesson v Sweden (1990) 13 EHRR 1. In this same
context he argued that the margin of discretion available to the national
government was a narrow one when it came to the Court's examination of the way
in which a particular policy impacted upon the rights of an individual. When
these considerations were kept properly in mind it could be seen that the cases
of Kevin Gallagher [2003] NIQB 26 and
Forbes v Home Secretary [2006] 1 WLR 3075, which the respondents
referred to, were not only capable of
being distinguished but were also seen to be wanting in their analysis.
[24] Mr O'Neil also submitted that it was relevant in the context of
a challenge to the proportionality of legislation to examine whether there was
any procedural protection available to ensure that the placing of particular
burdens on individuals could be tested by impartial adjudication. He drew
attention to the way in which such considerations had featured in the cases of Foldes and Foldesne Hajlik v Hungary (Application number 41463/02)
decision dated 31 October 2006, Connors
v United Kingdom (2004) 40 EHRR 189
and Shayler. On the basis of what was
said in Foldes Mr O'Neil argued that
proportionality in the present case required the possibility of review and a
need for continued justification of the interference with the petitioner's
rights. On the basis of what was said in Connors
and Shayler he sought to demonstrate
how the presence of a right of judicial review might contribute to the
assessment of proportionality, but pointed out that even this opportunity was
not available to the present petitioner.
[25] Whilst recognising that the notification requirements had been
the subject of Strasbourg consideration in the case of Adamson as referred to by Miss Ross and in the cases of Ibbotson v United Kingdom [1999] EHRLR 218 and Massey v United Kingdom
(Application number 14399/02) decision dated 8 April 2003, Mr O'Neil contended
that these had only been non-admissibility decisions which by their nature were
not fully reasoned. In any event he submitted, as Miss Ross had, that the
notification requirements had significantly increased since the cases of Ibbotson and Adamson. He also said that when the Court considered the matter in Massey it appears to have proceeded upon
the impression that the 1997 Act had remained unchanged.
[26] On the argument as to discrimination Mr O'Neil re-iterated the
point made by Miss Ross that there was a failure to treat child offenders
differently from adult offenders. He reminded me of the support to be found in
the observations of both Baroness Hale of Richmond and Lord Bingham of Cornhill
in the case of R (Smith) v Home Secretary for the proposition that
even those who commit the most serious offences when children fall to be
treated differently from those who commit the same offences when adult. The
explanation for the approach taken by the legislation was simply that the
scheme had been lifted from that found in the Rehabilitation of Offenders Act
1974 without any consideration of its suitability or Convention compatibility
when applied to notification requirements for those convicted of sexual
offences.
Submission for the Respondents
[27] Submissions for the respondents were presented by Mr Mure and
Mr Keen QC. In his submissions Mr Mure took me through the history of the
legislation under discussion and turned to address the policy which lay behind
it. He referred me to number 7/6 of process, the extract from the Hansard
report for 14 March 1997
which contained the explanations given by the then Minister of State at the
Home Office. He submitted that protection of the public was at the heart of the
Sewell motion passed by the Scottish Parliament on 20 March 2003 as set out in number 7/7 of process. He
submitted that it was relevant for me to consider the terms of the Hansard
reports in order to elucidate the background and objects of the legislation.
Support for this proposition he argued could be found in Pepper v Hart in the speech of Lord Brown-Wilkinson at pages
634C-E, page 635B-E and page 640B-C, in the speech of Lord Nicholls in R v
Secretary of State for the Environment, Transport and the Regions, ex parte
Spath Holme Ltd [2001] 2 AC 349 at pages 396-399 and again in the speech of
Lord Nicholls in Ghaidan v Godin-Mendoza [2004] 2 AC 557 at
paragraph 33. He further submitted that the aims of the legislation were
evident from the various reports which were lodged as numbers 7/4, 7/5 and 7/17
of process. It was clear that the purpose of the requirement to notify the
police of certain personal information and of the storage and use of that information
by the police and other agencies went far beyond risk assessment. The purpose
was the protection of the public, the prevention and detection of crime and the
deterrence of those with a conviction for a sexual offence. He said that it
could be seen from the comments of the Minister in the Hansard report for 14 March 1997 that the requirement to
provide information was to apply indefinitely to those who were deemed to have
committed the most serious offences and that this category was identified by reference
to sentences of imprisonment of 30 months or more. In addition he said it was
clear that the position of young offenders had been given particular
consideration as could be seen from the extract from the House of Commons
Official Report Standing Committee D, 4 February 1997, number 7/14 of process,
the extract from the Hansard report for 25 February 1997, number 7/16 of
process, the extract from the Hansard Report of 1 April 2003, number 7/15 of
process and the extract from the Hansard report for 19 May 2003, number 7/18 of
process. In particular he said it could be seen from number 7/16 of process
that the then Parliamentary Under-Secretary of State for the Home Department
listened to calls for the exclusion of persons under 16 from the notification
requirements but resisted them on the basis that the requirements were not a
criminal punishment but an administrative device to secure public protection
from those who committed serious sexual offences.
[28] In addressing the criticisms advanced on the petitioner's
behalf Mr Mure pointed out that the requirement to provide information to the
police was not a punitive measure. This he said had been acknowledged by both
the House of Lords in R v Longworth [2006] 1 WLR 313 and by the
European Court of Human Rights in the cases of Ibbotson and Adamson. The individual affected was not prohibited
from doing anything. All that was required, he said, was the provision of basic
information which was notified in a simple manner. He pointed out that no
averment had been made on the petitioner's behalf concerning any difficulty
which he had in complying with the measures. It was important to remember not
only the grave harm that could follow from the commission of sexual offences
but also the duty which the state had under the Convention to take measures to
protect individuals from such harm - Stubbings
and others v United Kingdom
(1996) 23 EHRR 213. The assessment of the nature of such a risk and the
formulation and implementation of the appropriate protective measures were
matters primarily for Parliament. Within such discretionary areas considerable
weight and appropriate deference should he said be given to the views of the
democratically elected legislature. In support of this submission he relied
upon what had been said in Brown v Stott 2001 SC (PC) 43.
[29] In the light of the discretion available to it Mr Mure said
that Parliament had deliberately decided to introduce a broad and universal
notification scheme in order to have the greatest effect upon the prevention of
crime and the protection of the public. Given the importance of the legislative
aim and the gravity of harm that may be done by sexual offenders the connection
within the scheme of the legislation relating the length of the notification
period to the length of the sentence was both legitimate and proportionate. He
submitted that when it came to Parliament striking a balance such as this, the
stronger the legitimate aim being pursued the greater may be the proportional
interference with the rights of the individual concerned. The notification
period selected for those sentenced to a period of more than 30 months
detention reflected the rehabilitation period provided for by the
Rehabilitation of Offenders Act 1974. Section 5(1) of that Act excluded
from rehabilitation a sentence of imprisonment, youth custody or corrective
training for a term exceeding 30 months. It was within Parliament's discretion
to apply such periods to the notification requirements under the 1997 and 2003
Acts. Nor he said was there any necessity for review to be available to those
offenders sentenced to periods of more than 30 months detention. The
notification requirement was not based solely or principally on an assessment
of the risk that a particular sex offender may re-offend. The requirement was
intended to establish, maintain and keep up-dated, a database containing
details of all sex offenders within the United
Kingdom. Individual risk assessment by the
police and other authorities then followed on from the requirement to notify.
How the police carried out that process of risk assessment was a matter for
them and not the respondents. The police required to know the whereabouts of
those who had been convicted of sexual offences in order to provide the sort of
protection described. This was of such importance that the continuing
requirement of compliance on the part of the petitioner was proportionate in
light of his own conviction and sentence.
[30] In addition Mr Mure submitted that it was incorrect to see the
notification requirements as examples of restrictions being applied in a
blanket fashion. They were tailored to the individual in the sense that it was
only if an individual fulfilled certain criteria that he would become subject
to the requirements at all. Further there was a degree of differentiation
according to the sentence imposed. In this context Mr Mure also emphasised
that the sentencing exercise itself was very fact sensitive and discriminating
and in the context of the particular legitimate aim being pursued, this
provided sufficient sensitivity.
[31] Mr Mure also sought to draw support for his argument on
proportionality, despite the absence of review provisions, by founding on the
approach taken by the House of Lords in R
(S) v Chief Constable of South
Yorkshire Police [2004] 1 WLR 2196 (HL). In that case an 11 year old boy and an adult
each complained about retention of fingerprints and DNA samples taken from them
in the course of police enquiries. The boy was acquitted at trial and the case
against the adult was discontinued. Despite these outcomes the relevant samples
were retained in exercise of powers granted by section 64(1A) of the Police and
Criminal Evidence Act 1984. The applicants sought declarator that the
provisions of the Act were incompatible with Article 8 of the Convention in
that retention of fingerprints and samples of persons with no criminal record
was permitted. No review of the right to retain such information is provided
for. Mr Mure drew my attention to the speech of Lord Steyn at paragraph 39
where he said:
"Counsel for the
appellants submitted that the legislative aim could be achieved by less
intrusive means. It became clear that this contention would require a case by
case consideration of the circumstances of alleged offences of which the
individual has been acquitted. Counsel was able to rely on the conclusion of
Sedley LJ. He said (giving a dissenting judgement in the Court of Appeal)
'....The power of a Chief Constable to destroy data which he would
ordinarily retain must in my judgement be exercised in every case, however rare
such cases may be, where he or she is satisfied on conscientious consideration
that the individual is free of any taint of suspicion.'
In my view this
would not confer the benefits of a greatly extended database and would involve
the police in interminable and invidious disputes (subject to judicial review
of individual decisions) about offences of which the individual had been
acquitted."
These comments, it was said, would
apply equally well to the provisions of the 2003 Act if it was possible
for large numbers of individuals to seek review, year on year, of the continued
application to them of the notification provisions. He also drew my attention
to the fact that the difficulties which would be attached to any process of
review were canvassed in Parliament when the 1997 Bill was being debated as
could be seen from the extract from the House of Commons Official Report
Standing Committee D, 4 February 1997,
number 7/11 of process.
[32] Mr Mure also submitted that his arguments were underpinned by
the decisions of the European Court of Human Rights in Ibbotson v United Kingdom,
Adamson v United
Kingdom and Massey v United Kingdom.
An examination of these cases he said made it clear that the measures
complained of did meet the proportionality test founded upon by the petitioner.
Article
6
[33] Mr Mure submitted that the argument advanced by the petitioner
in relation to Article 6 of the Convention came to nothing. If the petitioner
was successful in his argument in relation to his Article 8 point then
reference to Article 6 added nothing. On the other hand, if the provisions
under challenge were held to be convention compliant, then there was no need
for a further remedy to attack a justified interference with the petitioner's
rights. Mr Mure pointed out that the petitioner had access to the Court which
determined the criminal charge brought against him and had access to this Court
for the determination of the present application. He emphasised that the only
decision taken which caused the notification requirements to apply was the
decision as to sentencing. He submitted that there was nothing in any of the
relevant previous decisions to suggest that there was any requirement for any
particular procedure beyond that at trial. The respondents' contention in any
event was that the terms of Article 6 were not engaged and Mr Mure developed
this argument in ways which are not necessary to set out here.
Article
14
[34] In addressing the petitioner's arguments in support of the
second declarator sought Mr Mure disputed that he was the subject of
discriminatory treatment. His submission was that the legislative provisions
both treated like cases alike and different cases differently. It achieved this
end by focussing on those who were convicted of serious sexual offences, be
they adults or young offenders. He submitted that Article 14 of the Convention
permitted discrimination between persons on the ground of the nature and
seriousness of the offence for which they had been convicted and that was what
the legislation complained of did. He said that the decision to place, in a
single category, persons with a serious offending history was well within the
legislature's discretionary judgement. Support for the proposition that Parliament
was best placed to assess whether there
ought to be any differentiation between those in otherwise similar situations
was to be found in the European Court case of Rasmussen v Denmark (1984) 7 EHRR 371. In this
context Mr Mure said it was relevant to bear in mind that it was very rare for
a 14 year old to be prosecuted for serious sexual offences perpetrated against
adult women. Accordingly it was reasonable to distinguish between young
offenders convicted of less serious offences and those convicted of more
serious offences. The differentiation achieved by the legislation in these
cases was fairly related its object. Mr Mure also submitted that it was
important to remember in this context that certain of the dicta relied on by
the petitioner in advancing his arguments arose in the context of penal law,
whereas the notification requirements are not punitive. If it was thought that
there had been any relevant difference in treatment, then this would only fall
foul of Article 14 of the convention if there was no rational
justification for the approach implemented. He referred to the dicta of Lord
Hoffman and of Lord Walker of Gestingthorpe in R (Carson) v Secretary of
State for Work and Pensions
[2006] 1AC (HL) 173.
Senior
Counsel
[35] Mr Keen re-iterated the contention that it was permissible to
have regard to Hansard material in order to underpin the respondents'
submissions as to the objects and mischief attacked by the 1997 and 2003 Acts.
The breadth of the scope of the legislation could be seen from the long title
to the 1997 Act and from the Hansard material at number 7/6 of process. In any
event he sought to emphasise that all of these points as to the aim of the
legislation had to be seen in the context of the decision of the European Court
of Human Rights in the case of Stubbings
and the particular requirement recognised there to protect the public against
the harm resulting from the commission of sexual crimes. It could be seen that
the 2003 Act (and the 1997 before it) had as its purpose prevention and
deterrence as much as detection and general protection from the harm of serious
sexual offences. He submitted that the legislation is directed towards ensuring
that the police can monitor sex offenders living in the community. As a matter
of policy Parliament wishes to be able to monitor such people and to ensure
that the information held on them is up to date. It also wishes such
individuals to know that they are being monitored. Parliament had decided that
in order to achieve these aims and to preserve the rights of others it was
necessary to impose a scheme of universal registration (so called) on those
convicted of serious sexual offences. He argued that a less rigid scheme would
have frustrated Parliament's objectives. The policy was to have a complete list
of those convicted of serious sexual offences and any more fact sensitive
scheme would result in endless challenges. He examined how such a scheme of
review might operate and questioned whether it would be possible to re-impose
the requirements on an individual removed by review. In order to achieve
completeness, consistency and universality, variations had deliberately been
taken out of the equation. The aim of the scheme would be defeated if
individuals could be removed after certain periods of time.
[36] Bearing in mind these aims Mr Keen said that the measures
imposed were proportionate. This remained true despite the argument advanced
that the legislation was insufficiently fact sensitive to the circumstances of the
petitioner's case. His submission was that the terms of the legislation were
sufficiently discerning given the differing ways that sexual offenders were
treated by reference to the sentences imposed. In any event Mr Keen said that
the European jurisprudence demonstrated that a particular format, as chosen by
Parliament, was perfectly capable of satisfying the test of proportionality
despite that format being simple and rigid. This flowed from the recognition
that such a format might be the only method of achieving the legislative objective
pursued. In this exercise of deciding how an objective was best to be achieved
Parliament was entitled to a wide measure of discretion. Mr Keen sought to
underpin these submissions by referring me to the cases of Stubbings & Others v
United Kingdom James & Others v United Kingdom
(Application 8793/79) decision dated 21
February 1986 and Pretty v United Kingdom
(Application 2346/02) decision dated 29
April 2002. In each of these cases he submitted one could see
examples of legislation which was applied in either a blanket fashion or
without being sensitive to the circumstances of the individual applicant.
Despite this in each case the European Court of Human Rights found the
legislation under challenge to be proportionate. He also submitted that these
cases vouched the importance of having regard to the discretion available to
Parliament. None of this jurisprudence was affected by the decision of the European
Court in Hirst
v United Kingdom
upon which reliance had been placed by the petitioner. His submission was that
this case provided an explanation of what could not be done in the
circumstances of the particular infringement of Article 8 rights examined but
did not explain what could be done or go any further in assisting with the
examination of proportionality in the present case. In any event he sought to
argue that the legislation under discussion was distinguishable from that
considered in Hirst in that the
provisions of the 2003 Act did not serve to deprive the individual concerned of
any right but was restricted to an interference with his Article 8 rights.
Further, the legislation did not apply to all sentenced to imprisonment but
only to those imprisoned for sexual offences. Within that class of offenders the
legislation also distinguished further between those convicted of serious and
less serious sexual offences.
[37] Mr Keen also reminded me that the proportionality of the
legislation as provided for in both the 1997 Act and in the 2003 Act had been
the subject of examination within the United
Kingdom in the cases of Gallagher and Forbes and
in Europe in the cases of Ibbotson, Adamson and Massey. On no occasion had it been found
to be disproportionate. He submitted that nothing of any materiality had
changed in the legislative provisions since the case of Adamson and that nothing said on the petitioner's behalf should
cause me to arrive at a different view.
Article
14
[38] Mr Keen re-iterated the submission that the 2003 Act was
concerned not with issues of sentence but social responsibility. He observed
that from the perspective of the victim of a serious sexual offence the age of
the perpetrator was of little moment and that the level of harm done was no
less if the perpetrator happened to be 17 years old rather than 18. Mr Keen
submitted that since the aim of Parliament was to protect the public, it was
not surprising that it had decided to draw no distinction between adults who
commit serious sexual offences and those who are not classed as adults but
commit the same type of offence. This classification of serious sexual
offenders could not be said to be arbitrary. It was based on the seriousness of
their conduct, as reflected in the sentence imposed, and the level of the harm
caused.
Submissions for The Advocate General
[39] Mr Lindsay who appeared for
the Advocate General adopted the submissions presented by Mr Mure and Mr Keen.
Conclusions
[40] It is acknowledged by the respondents that the notification
requirements under discussion constitute an infringement of the petitioner's
rights in terms of Article 8 of the convention. It is accepted on the
petitioner's behalf that such interference as there is operates in accordance
with law and that the requirements were in principle aimed at ends which were
legitimate. The first argument between the parties centred on proportionality.
It was argued that the legislative objective was confused and had changed over
time. It was argued that as a consequence the measures adopted were not
rationally connected to it. It was argued that the means used to achieve the
legislative aim were not fact specific to the petitioner and impaired his
rights in a way which was greater than was necessary.
Identifying
the Legislative Aim
[41] Part of the underlying argument advanced on behalf of the
petitioner was that Parliament had set out to secure the legitimate aim of
protecting the public by introducing legislation which had as its purpose risk
assessment. The respondents' contention was that the purpose of the legislation
went beyond that. Although Mr O'Neil sought to attack the consistency of
the policy objective underpinning the legislation by his own references to
Hansard, he challenged the respondents' right to explain the objects of the
legislation by use of the same material.
[42] In my opinion there was force in the respondents' contention
that Hansard could be referred to in order to identify not just the meaning of
a word or phrase but also to determine what was the purpose for which a power
was conferred. Lord Nicholls of Birkenhead explains
this most powerfully in R v Secretary of State for the Environment,
Transport and the Regions, ex parte Spath Holme Ltd. However, even the
approach which Lord Nicholls identifies only flows from there being an
ambiguity as to purpose on the face of the legislation. If I confine myself to
an examination of the terms of the statutory provisions there is no ambiguity
as to their meaning. Equally, adopting the same approach, I do not find any
difficulty in identifying the policy aim which is present. Although from time to
time attention will have been paid to particular forms of harm that can result
from sexual offending it does not seem to me that the legislative provisions
are, or ever have been, directed at the prevention of any particular form of
sexual offending. Nor are they designed merely to assess the risk of those who
have committed such crimes offending again at any particular time. The
legislative aims appear to me to have been consistent from the passage of the
1997 Act through to the passing of the 2003 Act. The changes which have been
implemented have been informed by the reviews as to the effectiveness of the
legislation provided by the Report of the Expert Panel on Sex Offending (number
7/5 of process) and the Review of the Notification Requirements Risk Assessment
and Risk Management of Sex Offenders.
[43] I agree with the respondents that the purpose of the
legislation goes beyond risk assessment. It seems to me that the legislative
aim which arises from the statutory provisions is an attempt to protect the
public from the grave harm which can flow from the commission of sexual
offences and, as noted by Lord Hope of Craighead in HMA v DS 2007 SCCR 222 at
paragraph 42, is based on the belief that a person who has been convicted of a
sexual offence is more likely to offend again in this way. Accordingly the
measures are designed to provide the authorities with information which will
assist in the prevention and detection of crime and at the same time act as a
deterrent to those who have already been convicted. This analysis is consistent
with the explanation of the purpose of the measures provided for by the 1997
Act as described by the European Commission of Human Rights in Ibbotson, by the European Court of Human
Rights in Adamson and by the House of
Lords in R v Longworth (Lord Mance at paragraph 30). I do not accept that as
the legislation has evolved its aims have changed. The guiding concern
throughout has been the fear and harm inflicted by sex offenders and the need
to provide adequate protection to the public. Amendments to the legislative
provisions, in the light of experience, have been implemented in order to
better secure the attainment of this objective.
Parliamentary
Consideration
[44] As part of the attack on the nature of the current statutory
regime it was argued on the petitioner's behalf that in settling on the
measures under discussion, Parliament had failed to give any proper
consideration to an assessment of the ways in which the restrictions imposed
would impact on the convention rights of those affected. Such an omission it
was said impacted on the question of the proportionality of the measures
chosen. It can hardly be contended that in assessing the weight to be given to
this aspect of the petitioner's submissions the Court is not permitted to
consider the terms of the Hansard reports in which such debate might be found.
If I do have regard, for this purpose, to the various extracts drawn to my
attention by counsel for the respondents it is clear that Parliament was alive
to the question of the effect of the notification requirements on young
offenders and in particular to the effect of an indefinite obligation, without
the opportunity for review, for those young offenders convicted of the most
serious offences. Such questions were considered alongside the underlying
intention of providing the public with protection from the risk of serious
sexual harm and an understanding of the nature of the offence which a young
offender would require to commit prior to the triggering of an indefinite requirement.
In the same way it is also correct, as Mr Keen submitted, that at least some
consideration of these matters was given by Parliament at a point after the
passing of the Human Rights Act 1998. In these circumstances scrutiny of the
present legislation does not expose the sort of deficiency which enabled the
European Court of Human Rights in the case of Hirst to say, at paragraph 79, when considering the terms of
section 3(1) of the Representation of the People Act:
"...there is no
evidence that Parliament has ever sought to weigh the competing interests or to
assess the proportionality of a blanket ban on the right of a convicted
prisoner to vote."
The
Effect on the Petitioner of the Legislative Provisions
[45] By contrast with the legislative provisions considered in Hirst, the measures under discussion do
not prevent the petitioner from doing anything. They require, for example,
information to be provided in relation to relevant changes which he may choose
to make to his circumstances. They require information to be provided as to
choices which he may choose to make regarding foreign travel. They no doubt do
serve as a constant reminder of his past. It is also no doubt also true that
compliance with each obligation brings home to him the realisation that he will
never be free from the consequences of his actions as a teenager. Perhaps
surprisingly though in the context of such a discussion, precious little was
said about what the petitioner had actually done. The terms of his conviction
were only referred to as part of a submission that standing the cumulo sentence one could not be sure
what proportion of this sentence related to the sexual component of the
indictment. Since the petitioner was granted anonymity in circumstances which I
know nothing of, I will not repeat the terms of the indictment here. To do so
might defeat that privilege previously granted. It will be sufficient for me to
note that he pled guilty to two offences of attempted rape perpetrated against
women who were in vulnerable circumstances by virtue of their employment. The
narrative of the charges discloses conduct of a severity that one might imagine
a fourteen year old incapable of. In so far as there were in addition offences
of theft, malicious mischief and robbery, they were of no consequence in the
overall picture and could not have impacted upon sentence in any meaningful
way. Despite the serious harm caused by
these offences and despite the impact which the petitioner says the notification
requirements have upon him, I did not accept the submission made by junior
counsel for the petitioner that the requirements were in the nature of a
sentence. The requirements are not imposed as part of a sentence, they are
administrative in nature. This distinction was made clear in Longworth and in both Ibbotson and Adamson, where this same point was argued. They no doubt do constitute burdens for the
petitioner. As was commented upon in the case of Forbes, they are intended to do so.
Evaluation
of the Legislative Measures
[46] In seeking to apply the three stage test adopted by the Privy
Council in de Frietas the first
relevant question is; are the measures designed to meet the legislative
objective rationally connected to it? Parliament has decided that the
authorities require to monitor those convicted of serious sexual offences and
wishes to ensure that information held on them is up to date. In order to
achieve that end it has imposed requirements which will provide the authorities
with information to permit monitoring to occur. From the fact of monitoring it
is said that deterrence and other benefits will flow. It may well be that other
methods of enabling such monitoring to occur could be devised, but the
notification requirements imposed are rationally connected to the legislative
aim as I have described it. The argument to the contrary was based on the
proposition that the legislative aims were constantly shifting and seeking to
target different types of sexual offenders. The requirements in relation to
photographs and fingerprints are designed to avoid the risk of impersonation.
[47] The next question for me is as framed in the third of the
questions adopted and explained in the judgement of their Lordships as
delivered by Lord Clyde. It is whether the means used to impair the right or
freedom are no more than is necessary to accomplish the objective. The absence
of review and the absence of a means of determining the level of risk posed by
the petitioner at any given time were focussed on as deficiencies within the
current scheme. These are relevant considerations. It is also relevant to
consider the practicality of such a scheme. If I am to give consideration to
the impact of a scheme of review I also require to examine the consequences
which might flow from its operation. A case by case examination of the ongoing
need for an individual to remain subject to the notification requirements might
provide an assessment of the level of risk which he posed at that given point
in time. A disappointed applicant for review would no doubt wish to re-apply.
What would the effect of a successful application for review be though? Would
that decision be final? How would the authorities thereafter be in any position
to monitor that individual and assess the need for renewed notification requirements?
In addition each such decision would be susceptible to judicial review. An
obvious consequence of successful application for review would be that the data
base of information currently available would become incomplete. There would be
obvious resource implication to any such scheme. In the course of assessing the
proportionality argument advanced in R v Chief Constable of South Yorkshire Police
Lord Steyn, at paragraphs 37 to 39, rejected the suggestion that less
intrusive means which resulted in a case by case analysis, with attendant
consequences, were realistic means of achieving the legislative aim under
consideration. At least some of the factors which weighed with their Lordships,
and as set out by Lord Steyn, would inevitably feature in a scheme of the sort
argued for by the petitioner. I recognise that a system of review might have
certain advantages. It would as I have acknowledged perhaps provide focussed
information as to risk assessment. It would however have the disadvantage of
uncertainty, it would be resource intensive and it would create the risk that
the data base of information was incomplete. These considerations seem to me to
raise questions as to whether such a scheme would contribute to or undermine
the aims of deterrence and detection of crime.
[48] Practicality is of course only one aspect of the way in which
the question has to be analysed. I also require to consider the effect on the
petitioner. However a balance requires to be struck in this area also. The
decision in de Frietas makes it clear
that the impact on the individual has to be viewed in the context of the
purpose sought to be achieved. It is also correct, as counsel for the
respondents said, that when it comes to the Court examining the way in which
Parliament chose to strike this balance it will give weight to the decisions of
a representative legislature and a democratic government within the
discretionary area of judgement accorded to those bodies (Brown v Stott 2001 SC (PC) 43 at pages 58/59). The European Court of Human Rights has acknowledged
that it is for the national authorities to make the initial assessment both of
the existence of a problem of public concern and of the remedial action to be
taken (James & Ors v United Kingdom).
It has also repeatedly said that a margin of appreciation is available to the
national authorities in this exercise. In the case of Stubbings at paragraph 61 the Court said this:
"61. There are
different ways of ensuring respect for private life and the nature of the
State's obligation will depend on the particular aspect of private life that is
in issue. It follows that the choice of means calculated to secure compliance
with this positive obligation in principle falls within the Contracting
State's margin of appreciation."
In the case of Pretty at paragraph 70 the Court said this:
"70. According
to the Court's established case law, the notion of necessity implies that the
interference corresponds to a pressing social need and, in particular, that it
is proportionate to the legitimate aim pursued; in determining whether an
interference is "necessary in a democratic society", the Court will take into
account that a margin of appreciation is left to the national authorities,
whose decision remains subject to review by the Court for conformity with the
requirements of the Convention. The margin of appreciation to be accorded to
the competent national authorities will vary in accordance with the nature of
the issues and the importance of the interests at stake."
In the same case at paragraph, 74
in the context of the issue of proportionality there being discussed, the Court
noted that:
"The more
serious the harm involved the more heavily will weigh in the balance
considerations of public health and safety against the countervailing principle
of personal autonomy."
[49] In my opinion it is incorrect to describe the present scheme as
one which applies by general application of law and in a blanket fashion. There
is sufficient discrimination within the scheme, both in respect of the
criminals to whom it applies and in the way in which the application of the
requirements are linked to the severity of the crime committed, to render this
criticism unwarranted. Nor is it difficult for the petitioner to comply with
the legislative requirements. Other than as a consequence of changes to his
circumstances which he chooses to bring about his responsibility is discharged
annually. Mr O'Neil referred to the decision of the European Court of Human
Rights in Hakansson in support of his
proposition that one had to look at the facts as they applied to the applicant
rather than in the abstract. I recognise this, although it is clear that I
ought to look at the impact on the petitioner in the context of the general
aims of the legislation. However, there is a further comment in Hakannson which appears to me to be both
helpful and important. At paragraph 51 of its decision, in examining the
question of how to approach the question of proportionality of an interference
with a given right, the Court said:
"The requisite proportionality
will not be found if the person concerned has had to bear an individual and
excessive burden."
At the same time I agree with the
respondents that it is not for me to adjudicate upon whether a different or
better scheme might have been implemented. The question is whether the measures
complained of fall within the umbrella of proportionality. If they do it is for
Parliament to decide which of a range of measures to implement.
[50] In my assessment I require to bear in mind the obligation on the
state to take positive measures to provide protection for the public from the
serious harm of sexual crime. I require to examine the effect of the particular
provisions upon the present petitioner. I then require to assess the balance
struck between the respective interests in light of the guidance given by the
cases referred to above. In this exercise I should, as Mr O'Neil submitted,
assess the proportionality of the interference as at the date of challenge. In
doing so I therefore have to assess the effect of the notification requirements
on a 28 year old man whom, since I was not told otherwise, I have assumed to be
healthy and sexually active. I have also to bear in mind that this young man
has been responsible for two particularly serious sexual assaults on adult
women.
[51] The need to test the proportionality of the legislation at the
time of the challenge is not the same as saying that there must be an express
provision for review in order for legislation to be convention compliant. The
cases of Reiner and Foldes relied upon by the petitioner do
not support such an assertion. Each concerned restrictions on freedom of
movement, imposed either as part of a claim for unpaid taxes (Reiner), or in light of the institution
of criminal proceedings (Foldes). In
each case the underlying litigation remained unresolved for very many years. In
the Reiner case the Court pointed out
that a restriction on the right to leave one's country on the ground of unpaid
debt can only be justified so long as it serves its aim. However it also held
that the Bulgarian authorities had taken no proper steps to collect the debt,
despite at stages attaching sums which were never seized. In due course the
debt prescribed whilst the travel ban remained in force. In the case of Foldes the applicants were charged with
offences of fraudulent bankruptcy. The criminal proceedings extended over some
13 years, throughout at least 10 of which the applicants were unable to leave Hungary.
Again the Court, relying on its decision in Riener,
held that the national authority was under a duty to take care to ensure that
any interference with the right to leave one's country should be justified and
proportionate throughout its duration in the individual circumstances of the
case. However the question of proportionality falls to be assessed in light of
the particular pressing social need being addressed by the restriction in
question and in light of the nature of the particular interference with the
right in question. The weight to be given to the interference requires to be
weighed against the importance of the aim being pursued (Adamson). Thus the stronger the legitimate aim being pursued the
greater may be the proportional interference with the rights of the individual
concerned. Neither the pressing social need nor the nature of the interference
with the right under discussion in the cases of Reiner and Foldes bear
any comparison with the way in which these issues arise in the present case.
The same comments it seems to me apply to the cases of Suave and Hirst. Apart
from anything else, in all of these cases the applicants were prevented from
exercising the rights under discussion at all.
[52] In light of the importance of the aims being pursued I am
satisfied that the rigid and indeterminate nature of the scheme under
discussion does not result in this petitioner having to bear an individual and
excessive burden. That is not to say that if the facts of the case were
different the same view would necessarily be arrived at. For example, the
proportionality of an indefinite interference with the Article 8 rights of an
elderly man who had been in no trouble for very many years might cause the
issue to be focussed in quite a different way. However, in the present case, I
am satisfied that the provisions under challenge do satisfy the third of the
tests set out in the case of de Freitas.
[53] This analysis is also consistent with the ways in which other
Courts have considered the question of the proportionality of this legislation.
In its decision to render the application inadmissible in the case of Adamson the European Court of Human
Rights expressly considered the question of whether the notification
requirements of the 1997 Act were compatible with the applicant's rights in
terms of Article 8 of the Convention. As in the case of the present petitioner
the applicant remained subject to the provisions for an indefinite period. The
argument on his behalf included the submission that he was unable to reinvent
himself and start a new life. The Court took the view that it was necessary to
weigh the importance of the aims pursued by the 1997 Act against the admitted
interference with the applicant's rights under Article 8. Against the
background of a recognition of the gravity of the harm which may be caused to victims
of sexual offences the Court took the view that the notification requirements
were not disproportionate to the aims being pursued. Whilst it is correct that
there have been changes to the legislative scheme since this decision I do not
accept that it is valid to seek to distinguish the effect of this case by
saying, as the petitioner did, that the terms of the 1997 Act were far less
draconian than those of the 2003 Act.
[54] In the case of Massey
the European Court of Human Rights again considered the question of whether the
terms of the 1997 Act were compatible with the applicant's rights in terms of
Article 8 of the Convention. This applicant was also subject to the
notification requirements for an indefinite period. As part of his argument
that the legislation did not meet the test of proportionality he specifically
drew attention to the absence of a procedure of review to determine the ongoing
need for registration in the circumstances of his case. The Court applied the
same assessment as in Adamson and
dismissed the application.
[55] In the case of Gallagher,
Kerr J, sitting in the High Court of Northern Ireland Queen's Bench Division
(Judicial Review), gave judgement in an application for declarator that the
terms of the 1997 Act were incompatible with the Convention. By the time of
this hearing the applicant was subject to the terms of the 1997 Act as amended
by the 2000 Act. He too was subject to the provisions for an indefinite period.
As in Massey the absence of any
dispensing or review provision was part of the argument advanced on the
applicant's behalf. The application was dismissed and Kerr J was satisfied that
the notification requirements were proportionate. As part of his submissions to
me Mr O'Neil drew attention what was said at paragraph 23 of the judgement:
"It is
inevitable that a scheme which applies to sex offenders generally will bear
more heavily on some individuals than others. But to be viable the scheme must
contain general provisions that will be universally applied to all who come
within its purview. The proportionality of the reporting requirements must be
examined principally in relation to its general effect. The particular impact
that it has on individuals must be of secondary importance."
[56] I am not persuaded that the benefit to be found from an
examination of the way in which the issue was resolved in this case can be
dismissed as Mr O'Neil sought to by saying that Kerr J was "just wrong". In the
first place it seems to me that Lord Bingham of Cornhill said something not too
dissimilar when the case of Pretty
was in the House of Lords (R v DPP [2002] 1AC 800 at paragraph 29).
Further, the President of the Queen's Bench Division in England,
in giving the judgement of the Court in the case of Forbes, quoted from this very passage of Kerr J's judgement and
said:
"We respectfully
adopt this analysis of the principles which underpin and justify the
notification requirements".
Leave to appeal the Forbes decision was refused by the House
of Lords on 22 November 2006.
[57] By the time the Court in Forbes
came to consider the matter the provisions of the 2003 Act had been
implemented. Once again the challenge to the proportionality of the
interference with the applicant's rights in terms of Article 8 was dismissed.
Much of the criticism directed by counsel for the petitioner at the reasoning
found in Gallagher was based upon
references to the speech of Lord Hope of Craighead in Shayler. It was argued that his references to the need for
legislation to be sensitive to the facts of each case demonstrated that Kerr J
had fallen into error and that the Court in Forbes
had done likewise. However, it is clear
that Lord Hope was approving of and following the three stage test described in
de Frietas. At times he used language
of his own but he was not seeking to depart from or innovate upon that
test. For my own part I see nothing in
the judgement of the Court in Forbes
to indicate that it failed to follow the three stage process described. It
seems to me that in the passages criticised Kerr J may have been seeking to
take account of the context in which the effect on the individual is to be
examined, namely the ability of the legislation to accomplish its desired
objective.
[58] In any event, in arriving at my own decision, I have not proceeded
upon the view that the outcome should be determined by any of these cases. I
have sought to recognise the intensity of review which is available when the
question of the proportionality of a breach of a convention right is under
challenge. I have proceeded upon the view that the onus lies on the respondents
to show that the legislative provisions are compatible with the Convention and
that this burden cannot be discharged unless they show that the means adopted
were no greater than necessary to achieve the aims pursued. As Lord Hope
pointed out in Shayler at paragraphs
75 to 83 this exercise involves attention being directed to the relative weight
which is to be accorded to different interests and considerations, an
examination of the alternatives available and an assessment of the choice made
by the legislature. I have endeavoured to undertake this as explained above. As
Lord Bingham of Cornhill put it at paragraph 26 of his speech in Shayler:
"The acid test
is whether in all the circumstances, the interference with the individual's
Convention right prescribed by national law is greater than is required to meet
the legitimate object which the state seeks to achieve."
Taking account of all of the
circumstances argued before me I am satisfied that sections 81 and 82 of the
Sexual Offences Act 2003 in so far as they apply to the petitioner are
compatible with Article 8 of the Convention.
Article
14
[59] I am satisfied that the arguments advanced by the petitioner
under this head also fall to be rejected. I fully recognise the force of all
that was said in the cases to which my attention was drawn by counsel for the
petitioner. However it is fundamental to bear in mind that the provisions under
challenge are not penal. Once this is understood and it is acknowledged that
the provisions under discussion have the aim of deterrence and prevention, the
sort of considerations spoken of by Baroness Hale in R (Smith) v Home Secretary
have less application. I am satisfied that counsel for the respondents are
correct in saying that there has not been discrimination of the sort suggested
in the application of the legislative provisions. The 2003 Act seeks to
distinguish between those responsible for less serious sexual offences and
those responsible for the most serious offences, regardless of age. In my view
this is to treat like cases alike and different cases differently. In R (Carson) v Secretary of State for Work
and Pensions Lord Walker of Gestingthorpe explained that the real issue in
a case where Article 14 is in issue is why
the individual concerned had been treated as he or she had. In the same case,
at paragraph 14, Lord Hoffman said that it is:
"(necessary) to
distinguish between those grounds of discrimination which prima facie appear to
offend our notions of the respect due to the individual and those which merely
require some rational justification"
Article 14 safeguards individuals
who are placed in analogous situations against discriminatory differences of
treatment (Rasmussen v Denmark, Van der Mussele v Belgium (1983) EHRR 163). Although the
petitioner was not an adult when he was convicted of the offences concerned he
was convicted of sexual offences of a most serious nature. For the purposes of
the notification requirements provided for by the 2003 Act it is in my view
reasonable to treat him as being in an analogous situation to other serious
sexual offenders. The differentiation achieved by the legislation is fairly
related to its object.
[60] I am also satisfied that since I have decided that the provisions
of the legislation under challenge are compatible with the terms of the
Convention neither the Article 6 point nor the Scotland Act argument take the
petitioner any further. In the end of the day I understood Mr O'Neil to accept
that if the provisions of the 2003 Act as they stood were held to be compatible
with the petitioner's Article 8 rights then the absence of any procedural
requirement of the type he had argued for would not assist the petitioner in a
separate argument advanced under reference to Article 6. By the same token it
seems to me that the powers given to the Court in terms of section 102 of
the Scotland Act would only come into play if I decided that the provisions
complained of are not convention compliant. If they are then the there is no
valid argument to the effect that any ultra
vires act has occurred.
[61] I will repel the petitioner's first, second and third
pleas-in-law and I will uphold the respondents' second plea in law and refuse
the petition.
