Sex Offender Notification
An adult who had been convicted as a child of a sex offence was, by virtue of the coming into force of the Sex Offenders Act 1997, subject to the notification requirements for life without any prospect of, or mechanism for, review. He sought judicial review of the application to him indefinitely of the notification requirements. This challenge was unsuccessful before the Outer House of the Court of Session: A v Scottish Ministers [2007] CSOH 189, 2008 SLT 412. Read Lord Turnbull’s judgement and the details of the challenge here
This decision has been appealed to the Inner House of the Court of Session which heard argument in the course of 3 days in January 2010.
Meantime, in the course of the proceedings the Divisional Court in England upheld a similar challenge: F & Anor, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 3170 (QB) (19 December 2008). The decision can be read here.
The Home Secretary in England appealed this decision to the Court of Appeal. It refused his appeal: JF & Anor,R (on the application of) v Secretary of State for the Home Department [2009] EWCA Civ 792 (23 July 2009). The Court of Appeal judgement can be found here.
The Court of Appeal refused leave appeal to the United Kingdom Supreme Court. The United Kingdom Supreme Court granted leave to appeal to the Home Secretary.
The Home Secretary’s appeal was heard before the United Kingdom Supreme Court on 3rd and 4th February 2010.
The Lord Advocate intervened in the appeal before the Supreme Court. She is entitled to do as of right: Section 5 Human Rights Act 1998
On behalf of Mr A, the appellant in the proceedings before the Inner House of the Court of Session, Taylor & Kelly secured leave of the United Kingdom Supreme Court to intervene in the appeal of JF and Thompson.
The United Kingdom Supreme Court on 21st April 2010 refused the Home Secretary’s appeal. The decision can be read here. A declarator of incompatibility was pronounced in terms of section 4 of the Human Rights Act in respect of the provisions south of the Border.
Read the press reporting of the case:
The appeal before the Inner House of the Court of Session has commenced. It is due to be resumed after the decision of the United Kingdom Supreme Court has been issued.
The position in Scotland will be different. As the matter is one which is within the devolved competence of the Scottish Parliament, a declarator of incompatibility is not a remedy which can be pronounced by the Scottish Courts. The Courts have at their disposal a panoply of remedies to ensure that the parliament enacts Convention compatible legislation.
On 19th May 2010, the Inner House of the Court of Session upheld the appeal of Mr A and recalled the interlocutor of the Lord Ordinary. The matter has been contnued to rule upon the question of remedy to be afforded (See Section 102 of the Scotland Act 1998).
See press coverage:
The Herald 20th May 2010: “Scots sex offenders win human rights fight”
The Scottish Ministers have now made a remedial order under section 14 of the Convention Rights (Compliance) (Scotland) Act 2001 to amend for Scotland the provisions of the Sex Offenders Act 2003. This is due to come into force on 25th Ocotober 2010 and introduces a mechanism whereby those subject to indefinite notification can apply for their removal from what is known as the ’sex offender register’.
Read the account of the Sunday Herald about this here
The Scottish Ministers have now published the remedial order which takes immediate effect and forthwith amends the Sex Offenders Act 2003 by introducing a mechanism for removal from the ’sex offenders register’ for those subject to indefinite registration.
On 16th November 2010 the case concluded with a declaration of the breach ofMr A’s human rights and the agreement to pay him just satisfaction damages.
Read The Express here
The Herald here
The Scotsman here
BBC here
