Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 103

P770/12

OPINION OF LORD BRAILSFORD in the cause PHILIP ALLAN MAIN Petitioner; against THE SCOTTISH MINISTERS Respondents: for Judicial Review of the imposition on the Petitioner on a period of notification requirements of not less than fifteen years without provision for review within the said fifteen year period in terms of the Sexual Offences Act 2003 as amended by the Sexual Offences Act 2003 (Remedial) (Scotland) Order 2011 ________________

Petitioner: Dewar QC, Pirie; Drummond Miller LLP

Respondent: Springham; Scottish Government Legal Directorate

26 June 2013

[1] The petitioner is an individual. The respondents are the Scottish Ministers. On 12 May 2005, the petitioner was sentenced to an extended sentence of 36 months in respect of four charges of a sexual nature. As a result of this conviction the petitioner was required to comply with the notification requirements contained in the Sex Offenders Act 2003 ("the 2003 Act") as amended by Sexual Offences Act 2003 (Remedial) (Scotland) Order 2011. The effect of those provisions is that the relevant chief constable is only required to consider the matter of the petitioner's notification requirements under the 2003 Act after a period of 15 years from the petitioner's first notification of his details to the police, that period of 15 years not to include any periods during which the petitioner is in custody, in hospital or out of the United Kingdom. The petitioner seeks declarator that the application to the petitioner of the provisions of sections 81 and 82 of the Sexual Offences Act 2003 and regulations made thereunder without the possibility of any review within the period of 15 years provided for by section 88C(2) of the 2003 Act to consider the variation or ending (including the placing of a limitation on his period of registration) and his obligation to register with and notify the police under the registration and notification regime of the 2003 Act is incompatible with the petitioner's right to respect for private and family life under article 8 et separatim his right to access to the court for proper judicial determination of his civil rights under article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

[2] By interlocutor dated 23 November 2012 the issue to be debated at the first hearing of this petition was restricted to the question of whether the indefinite notification requirements in section 82(1) of the Sexual Offences Act 2003 were compatible with the petitioner's rights under article 8 ECHR.

[3] Part 2 of the Sexual Offences Act 2003 contains provisions which require persons convicted of sexual offences in Scotland to provide certain information to the police. The period during which information must be provided, termed "the notification period", is dependent on the sentence or other order imposed on the offender. For a person sentenced to imprisonment for life or to imprisonment for a term of 30 months or more the notification period was, at the date of promulgation of the said Act of 2003, indefinite. In R(F) v the Secretary of State for the Home Department [2011] 1 AC 331, the Supreme Court of the United Kingdom declared that the indefinite notification requirements in the 2003 Act constituted a disproportionate interference with a person's rights under article 8 ECHR because they made no provision for individual review of the notification requirements. As a consequence of that decision and in order to address the incompatibility identified by the Supreme Court, the respondents made the Sexual Offences Act 2003 (Remedial) (Scotland) Order 2010. That order was itself revoked and replaced by the Sexual Offences Act 2003 (Remedial) (Scotland) Order 2011. The 2011 Order makes provision for review of those offenders who are subject to the indefinite notification requirements. As a person who was sentenced to imprisonment for a sexual offence for a term of more than 30 months imprisonment, the petitioner is a person affected by these legislative provisions. The 2011 Order inserts into the 2003 Act sections 88A to 88I. Section 88B (1)(a)provides for a "date of discharge" which, in the case of adult offenders such as the petitioner, is 15 years after the date of discharge from prison. In the case of a sex offender who was under 18 on the date of conviction, the date of discharge is eight years after the date of discharge from prison. The section also provides for certain disregards to be taken into account when calculating the date of discharge. Those are not germane to the issue in the present petition. Section 88C requires the chief constable of the police force for the area in which the sex offender resides to do one of two things no later than the date of discharge. He may either (a) make a "notification continuation order" or (b) notify the sex offender that he ceases to be subject to the notification requirements on the date of discharge. If the chief constable does neither of these things the sex offender may apply to the sheriff for an order that he is no longer subject to the notification requirements (section 88F(1)). A "notification continuation order" is an order making the sex offender subject to the notification requirements for a fixed period of no more than 15 years from the date which would, but for the order, have been the date of discharge (section 88C(2)). The chief constable may make a notification continuation order "only if satisfied, on the balance of probabilities, that the relevant sex offender poses a risk of sexual harm to the public, or any particular members of the public, in the United Kingdom" (section 88C(3)). In terms of section 88C(4), the chief constable in considering whether or not to make a "notification continuation order" must take into account a number of factors. These include any submissions or evidence presented by the sex offender which demonstrate that he does not pose a risk of sexual harm to the public, or any members of the public in the United Kingdom. The chief constable requires to give reasons for making the "notification continuation order" and for the determination of the fixed period in the order. In the event that the chief constable neither makes a "notification continuation order" nor notifies the sex offender that he ceases to be subject to the notification requirements, the sex offender has the right to apply to the sheriff for an order that he is no longer subject to the notification requirements (section 88F(1)). On such an application being made, the sheriff has the power to grant the application and order that the offender is no longer subject to the notification requirements, or may make a notification continuation order (section 88F(3)). In considering such an application the sheriff requires to consider the same matters which the chief constable ought to have considered.

[4] The factual background giving rise to the present petition is not in dispute. As already noted, the petitioner was convicted on 17 February 2012 of a number of sexual offences. The sentence imposed upon him made him subject to the requirements regarding notification indefinitely. There will be no review of the application of the notification requirements until the chief constable carries out a review under section 88C of the 2003 Act. That review will not take place until a period of 15 years beginning with his date of discharge but disregarding any period of time that may arise under section 88B(2) has passed. The petitioner has not had the opportunity to make representations to any decision maker about inter alia the period during which he should be subject to the requirements. There has been no individualised consideration of the risk that he poses of committing sexual offences in the future.

[5] The petitioner's submission was that the notification requirements interfere with his right under article 8 ECHR to respect for his private life, that such interference is in accordance with law and directed at the legitimate aim of the prevention of crime and the protection of the rights and freedoms of others, but that the indefinite application of the notification requirements is incompatible with the said rights under article 8 because the application was not proportionate to the legitimate aim desiderated. The petitioner's submission was dependent upon the decision of the United Kingdom Supreme Court in R(F) (supra) and in particular, to passages in the speech of Lord Phillips of Worth Matravers, paragraphs 51, 52, 56 and 57 where his Lordship gave the reasons for deciding that the indefinite notification requirements they were considering in that case were disproportionate for want of provision for individual review. His Lordship's opinion is expressed in the following terms:

"51...this case turns, however, on one critical issue, if some of those who are subject to lifetime notification requirements no longer pose any significant risk of committing further sexual offences and it is possible for them to demonstrate that this is the case, there is no point in subjecting them to supervision or management or to the interference with their article 8 rights involved in visits to their local police stations in order to provide information about their places of residence and travel plans. Indeed subjecting them to these requirements can only impose an unnecessary and unproductive burden on the responsible authorities...

52. Both the Divisional Court and the Court of Appeal proceeded on the premise that there were some who were subject to notification requirements who could 'clearly demonstrate' that they presented no risk of reoffending or of whom 'it can confidently be said that there was no risk' that they would commit a sexual offence. Counsel for the appellant came close to admitting that, if this premise were correct, it would be hard to gain say the proposition that there ought to be a right to a review to enable notification requirements to be lifted in respect of those who no longer posed a risk. He submitted, however, that the nature of sexual offences was such that it was never possible to be sure that someone who had been guilty of a serious sexual offence posed no significant risk of reoffending, and that this was borne out by statistical evidence. Either all sexual offenders had a (possibly) late predisposition to commit further sexual offences or, if some did not, it was impossible to identify who these were. Whether these submissions are well‑founded is this question that lies at the heart of this appeal. I turned to consider the evidence before the court

56. No evidence has been placed before this court or the courts below that demonstrate that it is not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who pose no significant risk of reoffending. It is equally true that no evidence had been induced that demonstrate that is possible. This may well be because the necessary research has not been carried out to enable firm conclusions to be drawn on this topic. If uncertainty exists can this render proportionate the imposition of notification requirements for life without review under the precautionary principle? I do not believe that it can.

57. I referred earlier to a number of situations in which the degree of risk of reoffending has to be assessed in relation to sexual offenders. I think that it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified. As the courts below have observed, it is open to the legislature to impose an appropriately high threshold for review."

Senior counsel for the petitioner submitted that the same mischief existed with the amended regime created by the 2011 order. The criticisms that were identified and advanced, and accepted by the Supreme Court, in R(F) (supra) applied in the present petition. In particular if it were possible, which counsel submitted it was, to demonstrate that an individual such as the petitioner posed no risk of harm to the public then to deprive him of the right of review in relation to the notification requirements for an arbitrary period of 15 years was an infringement of his rights under article 8 ECHR.

[6] Beyond that, the petitioner's argument was that there was no justification for a blanket ban or blanket interference with a person's rights under article 8 ECHR such as was created by the imposition of a 15 year period before review of notification requirements could be undertaken. In that regard it was submitted that the ban was general, automatic and indiscriminate and as such fell outside any acceptable margin of appreciation. Reference was made to R (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45 (SC) paragraphs 78 - 79 in the speech of Baroness Hale.

[7] In response to these submissions, counsel for the respondents initially explained the actions taken were as a consequence of the declaration of incompatibility made in R(F) (supra). This was the making of the 2010 order under and in terms of section 12(1) and in (3) of the Convention Rights (Compliance) (Scotland) Act 2001. Public notice was given of the contents of the order and observations were invited thereon. At the same time a statement of the respondents' reasons for having made the order was laid before the Scottish Parliament. Observations were received from a number of interested parties. In addition, the respondents commissioned an "evidence briefing of recidivism among convicted sex offenders" prepared by Dr Levy of the Scottish Government Justice Analytical Service. That document was produced and formed number 7/4 of process. The author of the report was asked by the respondents to review the available evidence in relation to recidivism amongst convicted sex offenders and seek to answer the question when, that is how long after original conviction, a right of review should be activated. The review concluded that:

"...the available evidence suggests that sex offenders remain at risk of recidivism for many years following release from custody...Furthermore,...there is still a small proportion of convicted sex offenders who will be reconvicted of a serious sexual and/or violent offence for the first time even after 10 years have elapsed."

The review drew attention to the evidence that not all sexual offences result in conviction and observed that "(W)hile reconviction is the best practical measure of reoffending, it will always underestimate the true levels." The conclusion and recommendation of the review was:

"If our overriding consideration is public protection, then the evidence presented above could be used to justify a right of review to the sex offender notification requirements that takes effect only after a substantial period of time has elapsed. We have evidence from all three studies (that were considered to present the best available evidence) that the risk of attracting a new conviction for sexual offences persists for at least 10 years and from one study that it persists even beyond 20 years. However, the decision about exactly when a right of review takes effect may have to be made by balancing pragmatic and civil right consideration."

[8] The 2011 order was made on the basis of the responses and the aforesaid review of evidence. It was drawn to my attention that in England and Wales, a similar remedial order was made. The principle difference between the Scottish order and the English and Welsh order was that, as has already been noted, in Scotland the notification requirements would automatically lapse after the expiry of 15 years from conviction unless the relevant chief constable took certain steps. In England, the onus rests upon the convicted sex offender to take steps after the expiry of 15 years from his discharge from prison if he seeks to have the notification requirements withdrawn.

[9] Against that background, the respondents submitted that whilst it was accepted, following R(F), that the notification requirements in the 2003 Act interfered with the rights of sex offenders under article 8 of the ECHR, it could also be taken from that case that interference was in accordance with the law and was directed at the legitimate aims of the prevention of crime and the protection of the rights and freedom of others (R (F) (supra) per Lord Phillips at paragraph 41). That being the case, it was submitted that the sole issue in the present petition was the proportionality of the review provisions introduced by the 2011 order. Two questions were said to arise for consideration of the court. First, were the measures introduced more than was necessary to accomplish the desired result of protecting the general public from risk of offences being committed by sex offenders? Second, did the measures introduced strike a fair balance between the rights of the individuals affected, convicted sex offenders, and the interests of the remainder of the public? The submission of the respondents was that both these questions should be answered in favour of the respondents, that is the measures introduced were no more than was necessary to alleviate the perceived mischief of reducing risk of repeated sex offending and that they struck a fair balance between the rights of convicted sex offenders and the interests of the public at large.

[10] In support of that position, the respondents drew my attention to the dicta in R(F) (supra) that governments in pursuing the legitimate aim of designing measures to alleviate the risk of future offending by sex offenders, would be entitled to set a high threshold for any review procedures. The procedures which the respondents had introduced in terms of the 2011 order, whilst admittedly arbitrary in the sense that it was accepted that there was no one period of time which could be pointed to as the correct length of time, were based upon an objective analysis of all available evidence in relation to the issue of recidivism and sex offenders. It was submitted that the position of the petitioner, that is that an individual should have the opportunity essentially at any time after release to prove that he no longer presented a risk of further sexual offending, was not evidence based and to that extent was irrational.

[11] In determining the issue before the court it is clear, on the authority of R(F) (supra) that the notification requirements in and under the 2003 Act are capable of causing significant interference with individuals' article 8 rights. It is however, equally clear that there is a positive obligation resting upon the respondents to take such steps as are possible to reduce the risk to the general public of further sex offending by convicted sex offenders. It hardly needs said, but sex offending is a serious public issue and causes very serious damage and harm both by those directly affected by it and to society at large. Measures introduced, such as the notification requirements under consideration, require to be meaningful, and place no more a burden on those subject to them than is necessary in order to achieve the objective of reducing risk to the public. Restricting interference with the rights of those subject to notification requirements is in the interests not only of those persons, but of society at large. No purpose is served in having unnecessary restrictions such as supervision and monitoring upon persons who pose no risk to others. Unnecessary restrictions have an obvious cost, both financial and logistical, to the public purse as a consequence of the burdens such restrictions place upon police forces required to supervise them. It is against those considerations that the 2011 order requires to be considered.

[12] The starting point must, in my view, be a consideration of the available evidence of recidivism amongst convicted sex offenders. That this should be the case appears to me to be consistent with common sense. It does however also appear to reflect what was understood by and instructed the Supreme Court of the United Kingdom in reaching its decision in R(F) (supra). I draw attention to the observations made in the speech of Lord Phillips at paragraphs 56 and 57. In those passages, Lord Phillips observed that the court had had no evidence placed before it to the effect that it was not possible to be identified from amongst those convicted of serious offences, those that at some stage in their lives would no longer pose a significant risk of reoffending. His Lordship observed that equally, there was no evidence before them to suggest that this was possible. He concluded that this may be because of a lack of evidence but went on to observe that:

"I think that it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirement is unjustified."

His Lordship did not however go further and offer any elucidation upon this observation. Notwithstanding that, it is probably the case that even without evidence, Lord Phillips' observation must be regarded as correct. Presumably for example, at some stage age will reduce a convicted person's sexual libido to such an extent that they no longer pose a risk of reoffending. Equally there will be circumstances when a person's physical incapacity caused by injury or illness would have the same effect. However, in my view and importantly on the available evidence which was collated and considered by the respondents in the paper they drew to my attention and which I have already referred to, supported the position that the risk of further sex offending by convicted sex offenders persisted for a very substantial period after conviction. It was not only legitimate for the respondents to consider this evidence when considering what steps they should take following the decision in R(F) (supra) but in my view, necessary. If that be correct then I am of opinion that the respondents' actions based on that evidence are both objective and justifiable. Whilst, as the petitioner's counsel observed, the 15 year period imposed is arbitrary and, no doubt it might have been possible to have picked another period of time, it could not in my opinion be said to be an arbitrary period that was irrationally imposed. When I pressed senior counsel for the petitioner as to what in his submission, based on the information available to the respondents, a suitable period would have been he was able to provide no satisfactory answer. In the end, as I understood him, his position was that a period of a year or two following discharge, which period would enable the offender to in his words, "settle back into the community", followed by a right thereafter for the offender to seek review would be appropriate. With respect, I consider that answer to be wholly unsupported by any of the material available. It proceeded upon the basis that it would be possible for a convicted sex offender to demonstrate to the appropriate tribunal that he no longer presented a significant risk of causing harm to others. As I understand the evidence which was presented to this court, that is simply not possible. The evidence available to this court, which was essentially the same evidence as was available to the Supreme Court in R(F) (supra) was that the evidence in relation to risk of reoffending by convicted sex offenders is entirely statistical. That is, it is based on factual evidence of reconviction amongst the distinct population of convicted sex offenders. There is at present no known means whereby an individual who falls within that population could satisfy any person that he did not pose a risk of reoffending at some future date.

[13] Faced with that evidence, the respondents required to strike a fair balance between the rights of convicted sex offenders and the interest of the remainder of the public. They did so by imposing a discharge date for notification requirements which was a lengthy period after discharge from prison but was, critically, based upon a consideration of all available evidence related to the mischief, and the risk of reoffending they required to guard against. The period they selected was therefore based upon a rational judgment.

[14] On the basis of the foregoing, I am of the view that the 2011 order was a proportionate interference with the article 8 rights of the petitioner. I will accordingly uphold the respondents' first plea‑in‑law and dismiss the petition.