Mr. A. V. The Scottish Ministers+the Advocate General For Scotland For Judicial Review Of The Imposition On Him For An Indefinite Period Of Notification Requirements Without Provision
| Jurisdiction | Scotland |
| Judge | Lord Turnbull |
| Neutral Citation | [2007] CSOH 189 |
| Court | Court of Session |
| Year | 2007 |
| Date | 27 November 2007 |
| Published date | 27 November 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 189 | |
| OPINION OF LORD TURNBULL in the Petition of MR. A Petitioner; against THE SCOTTISH MINISTERS and THE ADVOCATE GENERAL FOR SCOTLAND Respondents: For Judicial Review of the imposition on him for an indefinite period of notification requirements without provision for review in terms of the Sex Offenders Act 1997 and the Sexual Offences Act 2003 ________________ |
Petitioner: O'Neil, Q.C., Ross; Balfour + Manson LLP (for Taylor & Kelly)
Respondents: Keen, Q.C., Mure; Office of the Solicitor to the Scottish Executive
Advocate General: Lindsay
27 November 2007
Introduction
[1] The petitioner is a 28 year old man who, by permission of the Court, is designed as Mr A. On 22 December 1993 he pled guilty at the High Court in Airdrie to two charges of assault with intent to rape, one of which included an element of robbery, a separate charge of theft and a charge of malicious damage. On 10 January 1994 a cumulo sentence of 4 years detention in a Young Offenders' Institution was imposed. At that date the petitioner had just reached his fifteenth birthday. The offences to which he pled guilty were committed in July and September of 1993 when he was fourteen years old. The petitioner avers that his sentence was imposed to date from 10 September 1993 and that it expired on 9 September 1997. The respondents admit these averments. However the signed Extract Sentence, Warrant of Detention and Return of Sentence lodged as number 6/1 of process records that the sentence was to date from 10 January 1994, the date of imposition. The effect of this is that the petitioner's sentence would have expired on 9 January 1998. Neither of these differences have any significant impact on the arguments advanced.
[2] On 1 September 1997 the Sex Offenders Act 1997 ("the 1997 Act") came into force. It applied to Scotland. The provisions of Part 1 of the 1997 Act applied to any person who as at that date was serving a sentence of imprisonment in respect of any sexual offence to which the Act applied. It is agreed that the petitioner fell within this category. Part 1 of this Act contained a scheme for notification to the police of certain information by those to whom the Act applied. Section 1(4) of the 1997 Act set out that persons convicted of a qualifying offence were to continue to be subject to the notification requirements of the Act for differing periods, determined by reference to the sentence imposed by the original Court before whom they were convicted. So far as persons sentenced to imprisonment for life or for a term of 30 months or more were concerned the applicable period was for "an indefinite period". Periods of 10, 7 and 5 years were applicable to persons sentenced to imprisonment for lesser periods or otherwise disposed of. Section 4 of the 1997 Act related to young sex offenders. Subsection (2) was in the following terms:
"In the case of a person who is under 18 on the relevant date, section 1(4) above shall have effect as if for any reference to a period of 10 years, 7 years or 5 years there were substituted a reference to one-half of that period."
The result was therefore that young offenders convicted of a qualifying offence for which the disposal was less than a period of 30 months detention would be subject to the notification requirements for one half of the period which would apply to an adult receiving the same sentence or disposal. However, young sex offenders committing a sexual offence which resulted in a sentence of 30 months detention or more, as with adult offenders, were to be subject to the notification requirements for an indefinite period.
[3] The scheme for notification of information was amended with effect from 31 May 2001 by section 66 of and Schedule 5 to the Criminal Justice and Court Services Act 2000 ("the 2000 Act"). With effect from 1 May 2004 the entire scheme for notification was replaced by the provisions of the Sexual Offences Act 2003 (the "2003 Act"). By this petition for judicial review the petitioner seeks declarator that the continued application of the provisions of sections 81 and 82 of the 2003 Act, without the possibility of any review to consider the variation or ending of his obligation to comply with the notification requirements, is incompatible with his right to respect for private and family life in terms of Article 8 of the European Convention on Human Rights ("the Convention"). In addition he seeks declarator that the continued application of the provisions in the manner described is incompatible with his right of access to the Court for proper determination of his civil rights under Article 6 of the Convention and declarator that the continued application of the provisions in the manner described is incompatible with his right to enjoy his Convention rights and freedoms without discrimination under Article 14 of the Convention. These remedies are sought under the terms of the Human Rights Act 1998. He seeks a further order of declarator that, in maintaining a regime under which the provisions of the 2003 Act apply to the petitioner in the way described, the Scottish Ministers have acted and continue to act unlawfully. In seeking this remedy he relies on the terms of the Scotland Act 1998.
The Notification Requirements
[4] The terms of the 1997 Act required a person subject to its provisions to notify the police of the name or names he used at the date of his conviction, his date of birth and his home address as at the date of conviction. Such notification required to be provided within 14 days, excluding any time spent serving any sentence of imprisonment. Such a person was also required to notify any change of name or home address within 14 days of such change, and the address of any premises at which he stayed for a period of 14 days or longer. Notification was to be provided by attendance at any police station within the person's local police area whereupon oral notice could be given to any police officer, or by sending written notification to such a police station. Failure without reasonable excuse to comply with the notification requirements gave rise to criminal liability. The Sex Offenders Act 1997 - Guidance for Agencies issued by the Scottish Executive, number 7/1 of process, explains the process of risk assessment which the police were expected to carry out in conjunction with the local authority social work service once they received information about sex offenders. Depending on the level of risk posed a simple desk assessment with an annual check on the offender's address might be deemed sufficient. Where a medium or high risk was thought to be present a full risk assessment and consideration of how that risk should be managed was envisaged, with a final decision on the police response deemed a matter for the police themselves.
[5] In terms of Schedule 5 to the 2000 Act the time limit within which the initial information was to be provided by a person concerned was reduced to 3 days. The opportunity to provide this initial information in writing was removed and power was given to permit police officers to take the photograph and fingerprints of a person providing initial information. Power was also given to the Secretary of State to make regulations requiring persons subject to the notification requirements to provide information as to dates of travel from and to the United Kingdom and as to certain of his movements while outside the United Kingdom. By Statutory Instrument No.188 of 2001, which came into force on 1 June 2001, regulations were implemented requiring persons subject to the notification requirements who intended to leave the United Kingdom for a period of eight days or longer to provide certain information as to their travel arrangements and destinations. Notification of this information required attendance at a police station.
[6] The notification requirements provided for by the 1997 Act as amended were replaced by those found within section 81 to 87 of the 2003 Act. The Scottish Parliament passed a "Sewell motion" on 20 March 2003 agreeing that the terms of the Sexual Offences Bill ought to be considered by the United Kingdom Parliament. Persons affected by the 2003 Act are referred to as "relevant offenders". A relevant offender (such as the petitioner) must, in addition to the previous requirements, now provide notification of his national insurance number. A relevant offender must now notify any changes to his name or address within a period of 3 days and must notify any address at which he resides for a period of seven days or more or at which he resides for two or more periods within a 12 month period which taken together amount to 7 days. The 2003 Act also introduced a requirement for periodic notification such that a relevant offender is now obliged to reconfirm his notified details annually. All forms of notification now require to be provided by personal attendance at a police station and police officers now have the power both to photograph any part of the relevant offender and to take his finger prints each time he provides the required notification, either by way of periodic notification or by way of change of details. As before, authority is given to the Secretary of State to make regulations providing for information regarding travel from the United Kingdom. The police remain responsible for performing risk assessment with no further development of this role set out in the Guidance on Part 2 of The Sexual Offences Act 2003 issued by the Home Office (number 7/2 of process). No alteration was made by the 2003 Act to the periods throughout which relevant offenders are to be subject to the notification requirements and, in keeping with the scheme since its introduction, no facility for any form of review of the continued applicability of the notification requirements to a relevant offender is provided. Failure without reasonable excuse to comply with the...
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