Scots sex offenders win human rights fight

5-20-2010 Scotland:

Judges have ruled the system that places sex offenders in Scotland on a register for life with no way of being removed is in breach of their human rights.

In a landmark judgment involving a convicted sex offender who was placed on the sex offenders register indefinitely at the age of 15, three judges said the scheme, as it stands, is incompatible with the European Convention on Human Rights (ECHR).

It means hundreds of people in Scotland could appeal their cases and challenge their inclusion on the register, while Scottish ministers will now have to change the law to bring the system into line with European legislation.

In future, the system will have to allow offenders to be able to apply for their removal from the register if they can prove they no longer pose a risk.

The decision follows the judgment last month of the Supreme Court, the highest in the land, to unanimously dismiss a Home Office challenge in relation to two English offenders who were on the register for life.

Lawyers for 52-year-old Angus Thompson and a teenager, who raped a child when he was aged just 11, ­successfully argued that the lack of opportunity to demonstrate they had reformed was a breach of their human rights.

The new UK Government may now have to adapt legislation to make ­provision for those who want their inclusion on the ­register re-examined.

The sex offenders register contains the details of anyone convicted, cautioned or released from prison for a sexual offence against children or adults since September 1997, when it was set up.

There are 3913 registered sex ­offenders in Scotland, of which 1631 are subject to the notification requirements for an indefinite period.

In the Scottish case, Lord Hamilton, the lord president, Lord Reed and Lady Smith upheld the appeal of Mr A – who pled guilty in 1993 at the High Court in Airdrie to two charges of assault with intent to rape, one of which included an element of robbery. He was 14 at the time of the offences.

While the case is to be continued later next month – to decide on how it affects ministers and to what extent it will be applied retrospectively – ­lawyers said it was agreed yesterday that Scottish ministers will have to change the law.

Tony Kelly, his solicitor, said: “This outcome was inevitable given the recent declaration by the United Kingdom Supreme Court that the Sex Offender Notification Scheme, under the Sexual Offences Act 2003, was incompatible with convention rights – in that it failed to provide a mechanism for review to enable offenders to apply for their removal from the register.

“The court has continued the matter to discuss and decide upon the question of the remedy to be afforded to: the particular petitioner in this case; and Scottish ministers.

“This has important ramifications in relation to sex offender notification for the past and in the future.”

Kelly added: “Scottish ministers’ recognition that legislation will require to be forthcoming (and that in early course) is, perhaps, an indicator of the significance of this ruling for the Sex Offender Registration Scheme in Scotland.”

Offenders are placed on the register for life if they are sentenced to 30 months or more in jail. Any convicted offender on the register has to notify the police of their personal details, any change of address and when they travel abroad.

A Scottish Government spokesman said: “We will consider the impact of any judgment on the notification regime as it relates to offenders subject to indefinite notification. The objective is to have in Scotland a notification system that will be compatible with Article 8 of the European Convention on Human Rights.

“The Scottish Government’s priority is protecting the public. Scotland has one of the most robust systems of managing sex offenders in the world. The notification requirements form an important part of this system. They provide an invaluable tool to the authorities in allowing the police to keep track of the whereabouts of individual sex offenders; and managing the risk of known sex offenders.” ..Source.. Lucy Adams, Chief Reporter