JOINT

Second report on Draft Sexual Offences Act 2003 published

23 May 2012

Government’s proposed changes to the Sex Offenders Register removes human rights problem identified by Supreme Court, says Committee

The Joint Committee on Human Rights (JCHR) today publishes a Report on the draft Sexual Offences Act 2003 (Remedial) Order 2012.  The draft Order is the Government’s response to the judgment of the UK Supreme Court that indefinite registration on the sex offenders’ register without opportunity for review was incompatible with the right to respect for private life, protected by Article 8 ECHR. 

Report: draft Sexual Offences Act 2003 (Remedial) Order 2012: second Report

The Committee reported in October last year on the Government’s proposal for a draft order and concluded that the proposed order, as drafted, would not remedy the incompatibility found by the Supreme Court, principally because it did not contain adequate provision for a review by an independent and impartial tribunal.  

The Committee notes that the revised draft Order now includes a mechanism for an independent review and concludes that this would remedy the incompatibility identified by the Supreme Court.  However, although the Government has amended its proposal in the light of the Committee’s previous comments, it maintains that an appeal to an independent tribunal would not be necessary.  The Committee points out that the need for an independent appeals process has been strengthened since its last Report, as notification requirements placed on registered sex offenders have been made more onerous by the Sexual Offences Act 2003 (Notification Requirements) England and Wales Regulations 2012.

The Committee also calls for clarification of the intention behind some aspects of the draft Order, including the right of appeal against postponements of further reviews, the requirement of chief officers of police to notify victims and others that an application for review has been made, the definition of “psychological harm to the public”, the availability of legal aid for appeals and recovery of costs relating to successful appeals, and the opportunities for parliamentary consideration of the Secretary of State’s guidance to the police on how to determine applications for review.

Dr Hywel Francis MP, the Chair of the Committee, said: “This has been a politically contentious issue for the Government, and we previously expressed concern that in trying to do the minimum possible required by the Supreme Court judgment, the Government had set the bar too low.  We are pleased to see that the Government has taken our warnings on board in bringing forward a more robust proposal which in our view now remedies the incompatibility found by the Court.  However, we reiterate our firm view that this could only be achieved by the inclusion of an independent appeals process, notwithstanding the Government’s continued argument to the contrary.”

Notes

Remedial Orders are secondary legislation made under the Human Rights Act 1998. They are used to remove incompatibilities with the European Convention of Human Rights (ECHR) in primary legislation identified by either domestic courts or the European Court of Human Rights (ECtHR). 

The text of the Remedial Order and the explanatory material published by the Government can be found at: http://www.homeoffice.gov.uk/publications/about-us/legislation/sexual-offences-remedial-order/

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