Philip Allan Main Against Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord Drummond Young,Lord Justice Clerk |
| Judgment Date | 22 May 2015 |
| Neutral Citation | [2015] CSIH 41 |
| Published date | 22 May 2015 |
| Docket Number | P770/12 |
| Court | Court of Session |
| Date | 22 May 2015 |
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 41
P770/12
Lord Justice Clerk
Lord Drummond Young
Lord Malcolm
OPINION OF LORD CARLOWAY,
the LORD JUSTICE CLERK
in the reclaiming motion
by
PHILIP ALLAN MAIN
Petitioner and Reclaimer;
against
SCOTTISH MINISTERS
Respondents:
Act: Dewar QC, Pirie; Drummond Miller LLP (for George Mathers & Co, Aberdeen)
Alt: Duncan QC; Scottish Government Legal Directorate
22 May 2015
Introduction
[1] This reclaiming motion (appeal) concerns the legality of the review provisions applicable to indefinite notification requirements under the Sexual Offences Act 2003. The system of review was introduced by the Sexual Offences Act 2003 (Remedial) (Scotland) Order 2011 (SSI No.45) as a consequence of R (F) v Justice Secretary [2011] 1 AC 331. The petitioner contends that the absence of a right of review until 15 years after his release from prison (2003 Act, s 88B(1)(a) and (2)) is incompatible with his right of respect for his private life in terms of Article 8.1 of the European Convention. The petitioner does not attack the introduction of the review provisions in the 2011 Order. Rather, he contends that section 82(1) of the 2003 Act, under which the notification requirements were imposed on him for an indefinite period, is incompatible with his Article 8 right in the absence of a more extensive review facility. Therefore, it is argued, it was ultra vires of the respondents (Scotland Act 1998, s 57(2)) to bring section 82(1) into force, by virtue of the Sexual Offences Act 2003 (Commencement) (Scotland) Order 2004, without greater provision for review than that (subsequently) created by the 2011 Order.
[2] The Lord Ordinary heard a debate restricted to the question of whether the notification requirements were compatible with the petitioner’s Article 8.1 right. The intention was to consider whether the review provisions were adequate to remedy the mischief, identified in R (F) (supra), that indefinite notification requirements, without the possibility of review, constituted a disproportionate interference with that right. The Lord Ordinary held that the requirements were a proportionate interference given the review provisions. The issue is whether he was correct to do so or whether, on the contrary, the requirements are disproportionate in Convention terms.
The facts
[3] On 17 February 2005, at the Sheriff Court at Peterhead, the petitioner was convicted of: (1) lewd, indecent and libidinous practices towards two young boys aged 10 and 11; (2) a breach of the peace involving the covert filming of children; and (3) three charges of contravening the Civic Government (Scotland) Act 1982, section 52(1)(a); by taking indecent photographs of children at three different loci. The offences occurred in 2003 and 2004. On 12 May 2005, the petitioner was sentenced to 3 years probation on the lewd practices charge, consecutive periods of 4 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 4 months was to be served in prison, consecutive to the other three periods. The total custodial term was thus 16 months. The petitioner has subsequently been sentenced to two 2 year terms for breaches of a sexual offences prevention order (SOPO) made in terms of the 2003 Act.
[4] The petitioner automatically became subject to the mandatory notification requirements for an indefinite period (2003 Act, ss 80 and 82). This is because the whole of the extended sentence is treated as custodial (Criminal Procedure (Scotland) Act 1995, s 210A(2); see R (Minter) v Chief Constable of Hampshire Constabulary [2012] 1 WLR 1157). As an adult offender, a review must be carried out “no later than” 15 years from the date of conviction (ss 88C(1), 88B(1) and 82(6)), disregarding periods spent in custody in respect of the index offence (s 88B(4)).
The notification requirements and provision for review
[5] The statutory notification scheme requires the petitioner to inform the police of certain personal information upon his conviction (s 83). This includes his home address, any other places where he regularly stays, and any passport details. The petitioner must also notify the police of his bank or credit account details (Sexual Offences Act 2003 (Notification Requirements) (Scotland) Regulations 2007 (SSI No.216)). When providing the information, he may be photographed. Fingerprint, DNA and other samples may be taken (s 87). He must advise of changes to the information provided, including the date of his release from prison (s 84), and of any intended travel outside the United Kingdom (s 86 and see the Sexual Offences Act 2003 (Travel Notification Requirements) (Scotland) Regulations 2004 (SSI No.205)). He must provide the address of any place at which he has stayed for a period of 7 days or more (s 84). It is accepted that the legislation requires periodic re-notification every year, even if this is not exactly clear from the detailed statutory scheme (s 85(1) and (5)). Notification, other than in the case of travel abroad, requires the petitioner’s personal attendance at a police station (s 87). Failure to comply with the requirements without reasonable excuse is a criminal offence (2003 Act, s 91(1)(a)) punishable by up to 5 years imprisonment (s 91(2)(b)).
[6] At the stage of review of the requirements, the chief constable must either make a notification continuation order or tell the offender that he will cease to be subject to the requirements (s 88C(1)). A notification continuation order subjects the offender to a further period of not more than 15 years of notification (s 88C(2)). It may be made only if the chief constable is satisfied, on the balance of probabilities, that the offender poses “a risk of sexual harm to the public” (s 88(3)). It must state the reasons for it being made and for the selection of the continuation period (s 88C(5)). A further review will occur prior to the expiry of that period (s 88E). An appeal from the chief constable’s decision lies to the sheriff (s 88G). Power is conferred on the respondents (s 88H) to amend the period of review. This power has not been exercised.
[7] Similar review provisions extending to England and Wales have been made by the Sexual Offences Act 2003 (Remedial) Order 2012 (SI No.1883) but these, in contrast to the Scottish Order, place an onus on the offender to demonstrate lack of future risk (s 91C(2)).
Parliamentary Material
[8] Immediately after R (F) (supra), in terms of section 14 of the Convention Rights (Compliance) (Scotland) Act 2001, the Government introduced an emergency measure (Sexual Offences Act 2003 (Remedial) (Scotland) Order 2010 (SSI No. 370)) to remove the incompatibility of indefinite notification requirements which then existed. Public consultation followed (2001 Act, s 14(2)). The Government were briefed by their Justice Analytical Services department on the evidence about recidivism among convicted sex offenders (the briefing). This included a summary of 3 studies on the subject: McCann et al (2004); Ackerley et al (1998); and Prentky et al (1997). The McCann paper contained a table as follows:
| Table 2. Reconviction rates | |||
|
| Type of reconviction | ||
| Follow-up period | Sexual cumulative number (%) | Violent cumulative number (%) | General cumulative number (%) |
| 2 | 43 (10.3) | 31 (7.4) | 143 (34.1) |
| 5 | 66 (15.8) | 60 (14.3) | 205 (48.9) |
| 10 | 84 (20.0) | 75 (17.9) | 236 (56.3) |
| 21 | 103 (24.6) | 91 (21.7) | 259 (61.8) |
[9] The briefing concluded:
“… the available evidence suggests that sex offenders remain at risk of recidivism for many years following release from custody (and this applies even to those serious sex offenders who were considered, at time of release, to present an acceptable level of risk). Furthermore, Ackerley et al’s study reveals that, even among a wider group of sex offenders (and not just those who are imprisoned for their offences) there is still a small proportion of convicted sex offenders who will be reconvicted of a serious sexual and/or violent offences (sic) for the first time even after 10 years have elapsed.
…
If our over-riding consideration is public protection, then the evidence … could be used to justify a right of review … that takes effect only after a substantial period of time has elapsed. We have evidence from all three studies (that were considered to present the best available evidence) that the risk of attracting a new conviction for sexual offences persists for at least 10 years and from one study that it persists even beyond 20 years. However, the decision about exactly when a right of review takes effect may have to be made by balancing pragmatic and civil right considerations.”
The briefing recommended that further research was required in relation to young offenders. The Justice Analytical Services department have updated their briefing; thus enabling the Government to re-consider the review periods, if so advised.
[10] It was on the basis of the briefing that the Government selected the review period, in indefinite notification cases, of 15 years for adult offenders and 8 for children. The Government summarised their position thus:
“23. All of these studies analysed reconviction rates of convicted sex offenders over a follow-up period of 20-25 years. Analysis confirms that there is no evidence that a point can be reached at which a sex offender presents no risk of re-offending. However, approximately a quarter of sex offenders were reconvicted for a sexual offence within this time period, the majority (over 80%) of whom were reconvicted within ten years.
24. The proportion reconvicted increases to a third if all violent offences are considered rather than just sexual offences. Out of the most serious sex offenders (rapists and child abusers), 40% were reconvicted for a sexual offence within 25 years....
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