Minimum notification period of 15-years before review does not breach sex offenders’ human rights

The Inner House of the Court of Session held that the review provisions applicable to indefinite notification requirements under the Sexual Offences Act 2003 were not disproportionate in terms of article 8 of the European Convention on Human Rights.

The Lord Justice Clerk, Lord Carloway – sitting with Lord Drummond Young and Lord Malcolm – upheld an Outer House decision and refused an appeal following a petition for judicial review by Philip Main, who convicted of lewd, indecent and libidinous practices towards two young boys, a breach of the peace involving the covert filming of children; and three charges of contravening section 52(1)(a) of the Civic Government (Scotland) Act 1982 by taking indecent photographs of children.

The petitioner was sentenced to three years probation on the lewd practices charge, consecutive periods of four months imprisonment on each of the breach of the peace and two of the statutory charges and an extended sentence of 36 months on the third statutory charge, of which four months was to be served in prison, consecutive to the other three periods.

The total custodial term was thus 16 months and the court heard that the petitioner had subsequently been sentenced to two two-year terms for breaches of a sexual offences prevention order (SOPO).

He automatically became subject to the mandatory notification requirements for an indefinite period because the whole of the extended sentence is treated as custodial, and as an adult offender, a review must be carried out “no later than” 15 years from the date of conviction.

The petitioner contended that the absence of a right of review until 15 years after his release from prison was “incompatible” with his right of respect for his private life in terms of article 8(1) of the European Convention.

He argued that section 82(1) of the 2003 Act, under which the notification requirements were imposed on him for an indefinite period, was incompatible with his article 8 right in the absence of a more extensive review facility, and was therefore “ultra vires” of the respondents, the Scottish Ministers.

The Lord Ordinary held that the requirements were a “proportionate interference” given the review provisions, but it was submitted that he had “erred” in his determination of proportionality.

It was argued that the Lord Ordinary had failed to consider whether provision could be made for an “earlier review” as a “less intrusive” means of achieving the legitimate aim of the requirements.

The Lord Justice Clerk explained: “The only substantive issue is whether the selection of 15 years, as the minimum period during which indefinite notification requirements will apply to adult offenders, is a disproportionate response to the problem of repeated sex offending because it is not “necessary…in the interests of public safety…for the prevention of …crime…” in terms of article 8.2 of the European Convention.”

Refusing the appeal, Lord Carloway observed that the 15-year review provisions only applied to “a narrowly defined group of persons”, namely adults convicted of a sexual crime who had been sentenced to at least 30 months or more.

He added that before selecting the review period, the respondents and the parliament had before them three key studies examining the risk of re-offending among convicted sex offenders, which made it clear that there was “no time at which it could be concluded that an offender presented no risk of re-offending”.

The studies showed that “a large proportion” of serious convicted sex offenders, were re-convicted of crimes within a period of 25 years, and that “a significant number” re-offended after 10 years.

In a written opinion, the Lord Justice Clerk – with whom Lord Drummond Young and Lord Malcolm agreed – said: “Allowing the respondents and Parliament an appropriate degree of respect…it is not possible to maintain…that the selection of 15 years was disproportionate; especially as that period may be reviewed as research develops.

“When looking at the interests of the individual and the risks to the public in terms of the available evidence considered, the level of the interference falls far short of creating an imbalance between rights infringement and public benefit.”