<p> The Scottish Human Rights Commission</p><p>Submission to Consultation on the Sexual Offences Act 2003 (Remedial) (Scotland) Order 2010</p><p>The Scottish Human Rights Commission was established by The Scottish Commission for Human Rights Act 2006, and formed in 2008. The Commission is a public body and is entirely independent in the exercise of its functions. The Commission’s mandate is to promote and protect human rights for everyone in Scotland. The Commission is one of the 67 National Human Rights Institutions accredited with ‘A status’ and established according to the United Nations Principles relating to the Status of National Institutions (The Paris Principles). </p><p>Introduction</p><p>The Scottish Human Rights Commission (the Commission) welcomes the Remedial Order by the Scottish Government, which makes amendments to the Sexual Offences Act 2003 to address the incompatibility of the indefinite notification period in section 82(1) of that Act with Article 8 of the European Convention on Human Rights ("the Convention").</p><p>It is important to note that the prevention of sexual offending is of great social value, but in achieving this legitimate aim in a democratic society it is essential to consider the necessity, utility and proportionality of the measures that curtail an individual’s right. The Commission thus would like to make a submission based on two aspects of The Sexual Offences Act 2003 (Remedial) (Scotland) Order 2010.</p><p>Firstly, the Commission feels that robust justification of the periods (15 years and 8 years) of review of indefinite notification requirements under section 88B1 is required based on good evidence. The Selection of these particular periods requires to be appropriately justified by the Scottish Government in the light of Article 8(2) of the Convention </p><p>Secondly, the Commission would like to submit some specific recommendations in relation to Article 6 of the Convention to enable that Scottish law and policy set the standards of best international practice.</p><p>Review of indefinite notification requirements- Article 8 of the Convention2 </p><p>1Section 88B of the 2003 Act sets out what the date of discharge and further date of discharge are for the purpose of sections 88A to 88H. 2 While Article 8 seeks to protect four areas of personal autonomy – private life, family life, the home and one’s own correspondence – these areas are not mutually exclusive and a measure can simultaneously interfere with both private and family life (i.e. Menteş and Others v. Turkey, judgement of 28 November 1997; Stjerna v. Finland, judgement of 25 November 1994; López Ostra v. Spain, judgement of 9 December 1994; Burghartz v. Switzerland, judgement of 22 February 1994; Płoski v. Poland, no. 26761/95 November 2002). 1 Scottish Human Rights Commission Optima Building, 58 Robertson Street, Glasgow, G2 8DU. T: 0141 243 2721 W: scottishhumanrights.com The Sexual Offences Act 2003 (Remedial) (Scotland) Order 2010 upholds the indefinite period of notification for relevant sex offenders. This Remedial Order instead gives offenders who are convicted of a relevant sexual offence a review process 15 years after that person became subject to the notification requirement - for offenders who were convicted of a relevant sexual offence when they were under 18, this period is 8 years. </p><p>The requirement for notification under the Sexual Offences Act constitutes an interference with the individual’s rights under Article 8(1) of the Convention. It is clear that the measures interfering with Article 8 rights are aimed at ‘the prevention of disorder or crime and the protection of the rights and freedoms of others’. This is a legitimate aim and the measures taken to achieve it can be justified under Article 8(2) provided that they are necessary and a proportionate way of achieving the aim. This means that the periods chosen for the review of indefinite notification requirements - date of discharge and further date of discharge as they appear under section 88B3 - have to be capable of being sufficiently justified and based on adequate evidence that supports the proposed length of the review periods.</p><p>The consultation document lacks references to any relevant evidence or assessment analysis (i.e. the prevalence of offenders potentially classifiable as dangerous and severely personality disordered (DSPD); their re-convictions after release; the element of risk attributable to DSPD; the likely relationship between DSPD and indeterminate sentencing) for the proposed review’s periods of indefinite notification requirement in individual cases. </p><p>The Commission recommends a combination of actuarial and clinical assessment should be used to formulate the appropriate time for a review of the indefinite notification requirements. This will considerably avoid the risk of arbitrariness when establishing the date of discharge or further date of discharge for the purposes of sections 88A to 88H. </p><p>The Commission understands this could be a complex process, but any limitation to an individual’s rights must be assessed according to the harm it will cause to the individual’s (or groups’) rights and whether that is: </p><p>. in accordance with the law; . in pursuit of a legitimate aim; . necessary in a democratic society: “An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are relevant and sufficient".4</p><p>In light of this test, the State has a positive obligation to sufficiently justify the periods for review of indefinite notification requirements. This will ensure both that the interference with the relevant sex offender’s private life is necessary and</p><p>3 Section 88B of the 2003 Act sets out what the date of discharge and further date of discharge are for the purpose of sections 88A to 88H. 4 S and Marper v United Kingdom (Application Nos 30562/04 and 30566/04) 2 Scottish Human Rights Commission Optima Building, 58 Robertson Street, Glasgow, G2 8DU. T: 0141 243 2721 W: scottishhumanrights.com proportionate, and also that the public is best protected (by ensuring that the new regime is based on empirical rather than anecdotal evidence). </p><p>In addition, weeding rules for police records and registers of those convicted should be sufficiently clear and accessible. The aim of a notification requirement regime is to assist in the prevention and detection of sexual offences. So, in order to maximise utility, a database should not include ex-offenders who no longer present a risk of sexual offending. It is important thus that the person concerned can also apply to the chief constable/sheriff for the deletion of the information if its preservation no longer appears to be relevant.</p><p>Recommendations – Article 6 of the Convention5 </p><p>The right to a fair trial is fundamental to the rule of law and to democracy itself. Article 6 ensures fairness between the parties to a case, either civil or criminal. In light of this Article, the Commission would like to submit two recommendations to the Scottish Government to strengthen the content of this Remedial Order. </p><p>1. The Commission recommends introducing a disclosure regime under sections 88C and 88F of this Remedial Order. </p><p>The right to a fair trial contains a number of requirements, for example; it requires that the applicant has a real opportunity to present their case or challenge the case against them. This will require access to opponents’ submissions, procedural equality and generally requires access to evidence relied on by the other party and an oral hearing. </p><p>Section 88C should therefore establish a disclosure regime which allows the relevant sex offender to challenge properly the evidence available or any other submission made to the chief constable or sheriff under section 88F.</p><p>2. The Commission recommends including a legal aid provision under sections 88F and 88G</p><p>Article 6 requires real and effective access to a court. To be real and effective this may require access to legal aid. While legal aid and representation may be provided for a summary application to the sheriff under the tests of cost-benefit analyses, prospect of success and prospect of recovery, it is important that legal aid provided under section 88F(2)) should not be subject to the prospect of success test. The Commission is concerned that a test framed in terms of prospects of success raises the threshold too high and risks disadvantaging legitimate claimants. </p><p>Article 6 is relevant to the interpretation of this legislation. This Article encompasses the general idea of “fairness” between the parties to a case. However, Article 6 is broader than that as it ensures the (minimum) quality of the administration of justice in a legal system by reference to established legal principles and procedures, and with</p><p>5Article 6 of the Convention continues to apply at the sentencing stage (i.e. X v United Kingdom (1975) Application No. 5574/72 3 D.R. 10; R v Smith [2007] EWCA Crim 2258, 24 August 2007). 3 Scottish Human Rights Commission Optima Building, 58 Robertson Street, Glasgow, G2 8DU. T: 0141 243 2721 W: scottishhumanrights.com safeguards for the protection of individual rights. So, for example Article 6 requires that there should be “equality of arms” between the parties to a case, so that one party is not treated more favourably than another. </p><p>Finally, the Commission feels that the appeals section 88G lacks a clear structure. Therefore, the Scottish Government ought to give further consideration to this section. The Commission believes that this Remedial Order would benefit from establishing a clearer regime of appeals that provides a proper assessment of both the merits and the legality of the decision under review. For example, section 88G(5) could distinguish the appeals before the sheriff and those before the sheriff principal. </p><p>The Commission recommends that in an appeal to the Sheriff of a decision by the Chief Constable, the standard of review should be a de novo rehearing of the merits of the case. Thereafter the scope of an appeal to the Sheriff Principal arising out of the decision in an appeal to the Sheriff could be confined to errors of law or errors of fact.</p><p>Conclusion</p><p>The Commission recommends that the proposed periods for the review of indefinite notification requirements must be sufficiently justified and based on adequate evidence. The Commission would welcome a clarification from the Government as to the evidence that supports the proposed periods for the review of indefinite notification.</p><p>The Commission recommends introducing a disclosure regime under sections 88C and 88F of this Remedial Order to bring the Remedial Order in line with the principle of “equality of arms” between the parties to a case.</p><p>The Commission recommends including an express guarantee of legal aid under sections 88F and 88G in order enable real and effective access to a court.</p><p>The Commission requests the Scottish Government to give further consideration to the appeals section in this Remedial Order in order to ensure the appropriate appeal regime in relation to the decision of the relevant chief constable.</p><p>End.</p><p>4 Scottish Human Rights Commission Optima Building, 58 Robertson Street, Glasgow, G2 8DU. T: 0141 243 2721 W: scottishhumanrights.com</p>