Faculty warns SROs may fall foul of ECHR

The Abusive Behaviour and Sexual Harm (Scotland) Bill introduces the sexual risk order (SRO), a civil preventative order which would be granted by a sheriff for a minimum of two years.

It would differ from other orders because it may be made where a person has not previously been convicted of a sexual offence, or any offence, but the person’s behaviour indicates a risk that others may be harmed and early intervention is necessary to prevent that harm.

Breach of a SRO would be a criminal offence, carrying a jail term of up to five years.

In written evidence about the bill to the Scottish Parliament’s Justice Committee, the Faculty sounded a note of caution that some SROs might fall foul of the European Convention on Human Rights.

“Depending on the particular circumstances of a case and the particular prohibitions and/or requirements contained in a sexual risk order made in the absence of a prior criminal offence, the Faculty considers it possible that the order would infringe Article 5 (the right to liberty) and Article 8 (the right to respect for private and family life) of the European Convention on Human Rights,” said the Faculty.

It also registered concern about the absence of flexibility as to the minimum period in an SRO, and added: “Further, the possibility of unlimited applications for renewal gives rise to a risk that an individual who has never committed an offence may end up being subject to a sexual risk order for life.”

The full evidence can be read here.

A Response by the Faculty to the Scottish government’s earlier consultation paper, “Equally Safe – Reforming the Criminal Law to Address Domestic Abuse and Sexual Offences”, is also on the Faculty’s website.