In the calendar of criminal offences, there can be nothing more
appalling than the sexual violation of any individual and the whole
issue, quite understandably triggers painful and volatile debate. Most
importantly, the victims of sexual offences are caused anxiety and
distress whenever the subject of sex offenders becomes a topic of
public debate and unless the issue is discussed accurately and
responsibly, there is the real risk that victims will be deterred from
reporting crimes to the police.
So it is that Ministers, Commentators and interest groups, including
the NSPCC http://www.nspcc.org.uk/, waded into this highly sensitive
area when the ruling in R (on the application of F by his litigation
friend F) and Thompson (FC) (Respondents) v Secretary of State for the
Home Department (Appellant)  EWCA Civ 792
came into force a few days ago.
It does none of these groups any credit to analyse for a moment the
ill-judged, knee-jerk reactions which flooded onto the media. The
misinformation and at times downright hysteria coming from the mouths
of people who should know better was shocking. Furthermore, there can
be no excuse for it. I think that we can safely assume that Ministers
and Charities such as the NSPCC have legal advice and that the impact
of ‘F’ upon the way sex offenders are monitored in England and Wales,
was recognised as being marginal and certainly not worthy of the
hyperbole of the last few days.
Lets put a few myths right. Sex offenders still have to register as a
matter of compulsion. Sex offenders still remain on the list for life,
as they have always done and do not automatically come off it after 15
years. Sex offenders will have to convince a Police Force that they
are safe to come off the Register after 15 years of being on it in the
community and one can assume, having not been convicted of further
Listening to the rhetoric of Ministers and in particular Theresa May,
the Home Secretary over the last few days, it is not surprising that
vulnerable people, victims and those under threat, were shaken by what
they were hearing.
The problem is, that when it comes to sexual offending, politicians
have been brought up to take no chances… look what happened to Ken
Clarke for instance. Best deal with it in broad strokes so that there
can be absolutely no room for misunderstandings, or worse, the media
deliberately making it a crisis.
For a moment, for those who want a calm consideration of the
situation, let’s get to the facts.
By way of background to the legal foundations for the present
position, we need to go back to the Sex Offenders Act 1997
http://www.legislation.gov.uk/ukpga/1997/51/contents and in
particular, Section 1(3)
. This laid down that there would be an automatic statutory
notification upon conviction of the name, address and date of birth of
the offender within 14 days of the conviction. This was to be given to
the police and that they should further give notification of any
address at which they would be staying for 14 days or longer.
Then came the Criminal Justice and Courts Services Act 2000
http://www.legislation.gov.uk/ukpga/2000/43/contents which reduced
notification time to 3 days and introduced a requirement that if the
offender went overseas, they should give notification within 48 hours
of travel to include details of the carrier, points of arrival, where
they were staying, date of return and point of arrival.
Both pieces of legislation were repealed and substituted by the Sex
Offenders Act 2003
http://www.legislation.gov.uk/ukpga/2003/42/contents Section 82
Take a look at this provision. It strengthens the already stringent
regime of the previous legislation and quite properly restricts any
movement and activity of convicted sex offenders comprehensively. I
make this point and lay out the historical development of these three
protective statutes, because listening to Ministers over the last week
or so, you could be forgiven for thinking that it has all been swept
away. It has not.
Victims of sex offences and those who may be on the edge of reporting
sex offences should know that the law provides for extensive
restrictions upon those convicted. Ministers do irreparable damage to
the criminal justice system when they imply otherwise.
A close reading of ‘F’ also makes it clear that the Supreme Court were
bolstering this protective series of provisions. Lord Phillips
confirmed in terms that it is lawful to monitor for life sex offenders
and everything that their Lordships said, marked and reiterated the
heinous status of sexual offending in the eyes of the law.
The case was not about whether sex offenders should or could be
monitored for life, it was a case decided upon the very narrow issue
of whether 15 years after release, some could apply for a review, as
to whether they might be removed from the Register.
As a matter of law, and quite rightly in my view, the Supreme Court
decided that being put on the Register for life, without the chance of
review was disproportionate when taking into account the provisions of
Article 8 of the European Convention on Human Rights http://www.yourrights.org.uk/yourrights/the-human-rights-act/the-convention-rights/article-8-right-to-respect-for-private-and-family-life.html.
Proportionality was considered with reference to the leading authority
of De Freitas v Permanent Secretary of Ministry of Agriculture,
Fisheries, Lands and Housing  1 AC 69 [at page 80]
http://www.bailii.org/uk/cases/UKPC/1998/30.html , in that the
requirement in question should be no more necessary than to accomplish
The objective is to keep Society safe. There was considerable
consideration in the case of whether sex offenders can ever be safely
let back into the community without close monitoring and this debate
continues outside of the Supreme Court. Perhaps reassurance can be
gained from official statistics for 2008 which suggest that
reoffending rates for sex offenders at 26.8% is lower than domestic
burglary [59.9%], and Robbery [38.1%
As such, the Supreme Court ruled that no chance of review was disproportionate.
That is the reality. Of course some will say that there should never
be an opportunity of review, they would probably be the same people
who argue with passion that ‘the keys should be thrown away’. But
whether we like it or not, the ultimate protection for Society is
rehabilitation and sometimes, just sometimes, the odd sex offender
might persuade a policeman that that is possible. That is the top and
bottom of it and it seems to me that this debate is more a product of
the political conference season than responsible public reassurance.