To the Guillawtine!

After the Tunisian, the Egyptian and now the ongoing Lybian revolution, it seems David Cameron and the Tory government have been inspired to start their own revolution… against judges.

After the assault on the ECHR judges for the decision condemning the UK for not debating the issue of prisoners’ right to vote adequately, the UK Supreme Court has become the latest target of the government. As the Home Secretary put it, they are keen “to assert that it is Parliament that makes our laws, not the courts”.

Some have pointed out that the reaction seems more like a primitive chest-beating to reaffirm one’s authority, especially on a day where the government had effected a major policy u-turn… And what better way to cheer the country and unite them than by shining the spotlight on that old foe: the paedophile.

And so the turf for the fight was picked: a decision by the Supreme Court which “seemed to fly in the face of common sense” and made the already nauseous Mr Cameron even more ill at ease. This decision, which was actually published 10 months ago, states that it is disproportionate and unnecessary to deny a right to ask for review to sex offenders who are, for the moment, obliged to be on the sex offender register ‘indefinitely’.

Leaving aside the timing of the discussion for this decision which was taken and made public so long ago, it is worth going over the actual content of the decision and what the court said, to determine whether we should start sharpening our guillawtines just yet…

The Sex Offenders Register

First of all, a quick reminder of what the requirements for this register are. The register was introduced in 1997, before being reformed in 2000 and completely overhauled in 2003. Certain sex offenders are now required, depending on their sentence and therefore the gravity of their offence, to provide specific information at specific times for a specific period after their conviction.

The information they have to provide is:

  • date of birth,
  • national insurance number,
  • name on the date of conviction and any other names regularly used,
  • home address on the date of conviction and any other addresses regularly visited.

If any of these change, the offender has to notify the police within three days of the changes happening. The offender must also notify the police if he intends to leave the country for more than 3 days, although Mr Cameron has vowed to ‘close that loophole’ by making the notification compulsory even for trips of only one day.

The notification has to be made by attending a pre-approved police station and cannot be done by any other way. The procedure can involve taking fingerprints and/or a photograph of the offender. If the offender fails to comply with these obligations, he can be tried and if he doesn’t have a reasonable excuse, he can be sentenced to up to five years in prison.

(All these measures are listed in great details in the Sexual Offences Act 2003)

These requirements are imposed because they allow the police to keep track of the offenders and facilitate the sharing of information with other police forces and potentially deter the offender from committing other offences. They are not intended to punish the offender, who will already have been punished.

None of this was questioned by the Supreme Court decision, which focused rather on one condition: that all offenders sentenced to 30 months or more in prison would have to be on the sex offenders register for an ‘indefinite period’ which effectively means they would have to abide by those ‘notification rules’ for the rest of their lives.

The Decision.

Because the Supreme Court is the highest court in the country, it only judges cases which are reported by other courts for consideration. It deals only with what the law is, not what the facts of the case were (for example, it won’t decide whether A did in fact shoot B, but it might have an opinion on whether the fact that A thought the gun wasn’t loaded will be relevant to his guilt…).

In this case, the appeal concerned two separate individuals who had been convicted of sexual offences and were sentenced to more than 30 months in  prison and so had an indefinite obligation to be in the sex offenders register. The question the court had to decide was whether this obligation ‘for life’ without any chance of review was legal.

To determine that answer, the court had to decide if the indefinite obligation and the restrictions it caused were necessary for the purpose of the register. This is a question of proportionality and can be broken down in three separate questions:

  • what is the purpose of the notification requirements?
  • how far do the requirements violate the offenders’ rights?
  • are those restrictions necessary to achieve that purpose?

The Purpose of the Register

To determine the purpose of the register, the court can only look to one place: the intention of those who voted the law, ie Parliament. As we pointed out earlier, the objective of the notification requirements is to allow the offender to be tracked, to prevent crime and protect potential victims as well as potentially passing on information, either to other police forces or interested parties.

This is what Parliament intended when passing the law and is the only purpose that can be read into the law. If there is uncertainty as to what the intention of Parliament was when passing a particular law, the court can go searching for clues in Hansard, the *cough* fascinating record of all discussions held in Parliament.

Restriction of Rights

The second question is about the restriction or violation of the offender’s rights. First of all, being on the sex offenders’ register means that you have to report any change of situation to a local police station, in person. And if you intend to travel abroad for more than three days (soon to be one), then you must report to the police station too. But it’s not just a question of inconvenience. The police can also tell other people of your ‘status’ as a sex offender if they think it’s necessary, as well as disclosing your whereabouts.

Some might (and indeed will) argue that being offenders, it doesn’t violate their rights as they gave those up when they offended (I’m paraphrasing, but hardly). The problem with this view is that once you are punished for an offence, you cannot be punished again. These offenders’ punishment was to spend more than 30 months in prison and when they have done that, they are deemed to be punished and, hopefully, rehabilitated. In fact, notification requirements like the sex offenders’ register are supposed not to be a punishment but a purely preventative measure.

Are the restrictions necessary?

Which leaves one question to be answered: are those restrictions necessary for the purpose of prevention?

The short answer, according to the Supreme Court, is no.

The long answer is a little bit, well, longer. The court actually stated that it isn’t wrong as such to impose a life time obligation to be on the register, in fact, it seemed in favour of being able to do so. But it held that not allowing a right to ask for review of the decision was not necessary for preventing crime. Their argument was that, although there is no firm evidence to show that it is possible to identify the defendants who will not reoffend, there is also no evidence to show that it’s impossible to identify them.

No one can claim that it is absolutely impossible to show a sex offender doesn’t pose a threat to society. So, we have to allow an offender the possibility to ask to be taken off the register, as long as he can show that he doesn’t pose any risk for the public. In fact, sex offenders notification systems in Canada, Australia, South Africa and even the United States all allow for the possibility of a review.

This doesn’t mean that the Supreme Court thought all sex offenders get a “get out of register free” card, but that in some rare cases, a sex offender should be given the possibility to argue that they can and should be taken off it.

Back to reality…

As ever for law in general and criminal law in particular, it’s important to come back to reality… Of the two offenders whose case s led to this decision, one was a middle aged man who was sentenced to five years for indecently assaulting a girl. It’s hard to say without the particulars of the case but the chances that he will be able to convince judges that he should be taken off the register are probably slim.

However, the second offender in the case was 11 years old when he was convicted to 30 months in detention for the rape of a small boy. While this is undeniably a horrible crime, it seems more likely that someone that age can be considered to have changed enough to not represent a danger to society.

It would seem strange that according to the English legal system, an eleven year old boy or girl:

  • is not mature enough to consent to sexual intercourse (with someone his own age or older), but
  • has developed enough that if he commits a sexual offence, he is considered unable to change and remains a danger to society for life…
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