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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 ญญญญญญญญญญญญญญญญญ________________ |
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
Introduction
[1] The
petitioner is a 28 year old man who, by permission of the Court, is designed as
Mr A. On
[2] On
"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
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
[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
[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
[8] The
Police, Public Order and Criminal Justice (
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
[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
[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
[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
[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
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
[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
[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
[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,
[32] Mr Mure also submitted that his arguments were underpinned by
the decisions of the European Court of Human Rights in Ibbotson v
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
[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
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
[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
"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
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
[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
"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
[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.