Yesterday the Government was forced to confront another unpopular decision from the Supreme Court based on Human Rights issues and yet again this will result in further unpopularity with the wider public. Once again that tabloid press have excelled themselves with their less than reputable reporting of the situation and had led the public to believe something that simply is not true.
The judgment in question relates to the keeping of sex offenders on the Sex Offenders register for life after having been sentenced to a period of imprisonment of longer than 30 months. The Supreme Court held that this was unlawful and as a result the Government are required to make further changes to the Law.
What is the Sex Offenders’ Register?
Contrary to popular belief there is no single, centralised list of registered sex offenders. Persons who have been convicted of a sex offence can be required to register with the police on regular intervals and be required to inform them of when they are leaving the country, where they are working, where they are living and other such matters. This is what is referred to as the Sex Offenders’ Register. Sex Offences could cover anything from flashing in the street to more serious offences such as rape and sexual abuse of a child.
What the Supreme Court judgment means?
Under the current system any person sentenced to a period of 30 months in prison or more for a sex offence is required to report to the police for the rest of their natural lives. There is no way of appealing this decision currently or arguing that their punishment and rehabilitation has had the required effect and no longer a danger to the public. It is this lack of mechanism to appeal that the Supreme Court has found is unlawful and it is this and only this that the Government is required to change.
The Government is simply required to provide a mechanism which allows an offender to appeal. The judgment does not require the Government to automatically stop people from registering with the police after a certain period of time nor does it require the Government to legislate in a way that means persons do not need to register with the police for the rest of their lives. What it requires is that the Government provides a mechanism whereby a person subject to such an order is able to appeal the order and have it removed or even altered.
Currently the Government is looking to allow persons who have been registering with the police under this scheme for a period of 15 years to appeal the order. This does not mean that the order will be revoked, indeed quite the opposite. It will require the applicant to prove that they no longer pose a danger to society. If they cannot satisfy the test set out by the Government then their application would be refused. Of course, they would need to be permitted to try again and the Government would need to decide what length of time, if any, would be required before a person could apply again
The Issues
Of course this matter is a controversial one as it relates not only to public protection but to a group of offences that the public quite rightly find grotesque. We treat sexual offence seriously in our judicial system and this measure was introduced as a way of ensuring public protection after a person has been released from prison.
However, one of the biggest issues is that of punishment. For how long should a person be punished for a crime? The “sex Offenders’ Register” is a lifelong punishment for individuals and does not recognise that the original punishment (i.e. the loss of liberty by having been sent to prison) and the rehabilitation work carried out whilst the offender was in prison and most likely continued outside of prison may have actually worked in rehabilitating the offender. Of course, not everyone can or will be rehabilitated and that is not what the Supreme Court or anyone else for that matter is trying to say. What is simply being identified is that the system lacks the recognition of this and that must change.
In reality those on the Sex Offender’s Register are not monitored all that closely and people can and do managed to abscond without the police knowing. Having a system whereby the offender’s case is going to be reviewed and monitored more closely may assist their rehabilitation further. It may give some the motivation to really deal with whatever the underlying issues to their offence was (and with these types of offences there usually will be some kind of underlying reason). This can only be a good thing.
Proposals in England
The proposal in England are that an individual will be able to appeal to the police after a period of 15 years to have their name removed from the register and that there will be no appeal from this decision.
I don’t think that these proposals go quite far enough and are indeed flawed. Firstly, we are asking the police to decide whether to continue or discontinue an order made by the courts. Such an order is issued by the court as part of the sentencing for the offence. The only right and proper authority to review such a decision is the court itself (or at the very least a body such as the Parole Board or similar). By allowing the Police the ability to make such a decision with no route of appeal risks breaching Article 6 of the European Convention on Human Rights (right to a fair trial). Can the police be a truly independent and impartial tribunal?
Further to that the inability to appeal could raise further problems. If a person is not permitted to challenge a decision or seek an appeal against the order again at a later date then further Human Rights issues arise. A system similar to that seen in parole hearings may be something to consider: decision is (usually) final, but a fresh application can be made after (usually) a period of 12 months.
I understand the Government’s wish to do as little as possible as it is going to be unpopular with the public (along with other decisions such as prisoners’ votes). However, they do themselves no favours by not being open and honest about the situation with the public. By putting headlines and sound bites before public honesty they are actually manufacturing many of the problems they are trying to avoid. They may have ulterior motives for this, but I would not like to speculate on the matter.
prout de jure 
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