Wednesday 16 February 2011

The government is disappointed and appalled by this ruling ....

In 2010, the Supreme Court decided R (F) and Thompson v Home Secretary [2010] UKSC 17.   The court considered the cases of two distinct offenders though the same legal issue arose in relation to both.  F - aged 11 at the time he offended (see note) - committed sexual offences (including two counts of rape) on a 6 year old boy.  In 2005 he was sentenced to 30 months detention.  Thompson was born in 1951 and, in 1996, was sentenced to 5 years imprisonment for indecent assault on his own daughter.  Conviction for these very serious offences triggered the Sexual Offences Act 2003 section 82 under which an indefinite notification period applies if the sentence is 30 months or more.  This is commonly referred to as the Sex Offenders Register.  The Divisional Court (Latham LJ, Underhill and Flaux JJ) and the Court of Appeal (Dyson, Maurice Kay and Hooper LJJ) had held that the absence of any possibility of reviewing what is a life long notification requirement was
a breach of Article 8 of the European Convention on Human Rights.   The Supreme Court agreed (Lords Phillips, Hope, Rodger, Lady Hale and Lord Clarke).    Thus, three English courts staffed by eminent judges all found that the absence of a review mechanism was a breach of human rights.  On all other points the government's position was upheld.  The court's judgment is not a judicial attack against Parliament or against the idea of keeping tabs on sex offenders.

Why then does Theresa May go to the Commons and say that the government is 'disappointed and appalled' the decision of the court?  Theresa May's speech can be seen on the BBC "Home Secretary Theresa May: Government is "appalled" by sex offender ruling."   Thus, in the space of two consecutive weeks, British politicians have attacked the European Court of Human Rights and our own judiciary.

Lord Rodger commented that F's case showed that a child offender is also subject to what amounts to a notification requirement which will affect the whole of his adult life.  It was open to Parliament to take the precaution of requiring such offenders to notify indefinitely but that made it "all the more important for the legislation to include some provision for reviewing the position and ending the requirement if the time comes when it is appropriate."  

The government now intends to amend the law as minimally as possible to comply with the court's ruling.  This is interesting because Parliament does not actually have to do anything but, in that event, further cases on this point would clearly have to go to the European Court of Human Rights which would almost certainly come to the same conclusion as the English judges.   In Scotland there is already an automatic review after 15 years but England and Wales is to have no such automatic reviews.  The review in Scotland is in the courts.  For England and Wales, a review will be possible 15 years after release from custody; the offender will have to apply and the review will be led by the Police and will involve other relevant agencies.  The final decision will rest with the Police with no right of appeal.   Whether such a review would meet Article 6 of the European Convention on Human Rights is questionable.  It would probably not have sufficient independence from government.

Theresa May also informed Parliament that certain "loopholes" to the Sex Offender Register scheme will be closed.  One is that a trip abroad for even one day will have to be notified (it is 3 or more at present).  Finally, she announced that the Deputy Prime Minister and Justice Secretary will be announcing the establishment of a commission to take forward the idea of a British Bill of Rights which would make it clear that it is "Parliament which makes our laws and not the courts."   Even allowing for political rhetoric, such an inaccurate statement about the role of the courts is disappointing.  There is no question that it is Parliament which makes the law.  Parliament has told the judges to apply the European Convention and Parliament has permitted judges to make a declaration that a legislative provision is incompatible with the Convention.  The judges have not granted themselves such powers and such powers do not exist in the English common law system.

The UK Human Rights blog has also taken a look at this case.  The Court of Appeal's judgment in this case is also worth reading.  There is a suggestion that Parliament might choose to set a very high bar for any reviews to succeed.  It would appear that the government has latched on to this suggestion.

Note: The age of criminal responsibility in English law is 10.  In some countries, F would not have been convicted of an offence but would have been dealt with differently.  See Telegraph 25th May 2010.

Addendum:  Solicitor's Journal - "Euro Vision: Wrong Contest" and Liberty "Moral Outrage or Political Posturing"


  1. It is more than a little unsettling that the government is so opposed to the law. A consolation for me being vilified is that the ECtHR and UK Supreme Court are getting the same treatment.

    The President of the ECtHR, Jean-Paul Costa, yesterday conformed that my case meant that murderers, rapists and other serious offenders "have to be entitled with the right to vote".

    I don't suppose David Cameron is going to be as happy as Larry...

  2. It is curious why Theresa May decided to suddenly come out against this decision which was made months ago. Clearly, it was calculated to appease the baying mob as she announced her new policy.

  3. I think Mr Costa was ill advised to comment at all. To do so is to enter the political arena which judges really ought not to do. After all, he is the President of the European Court of Human Rights. However, he probably doesn't really care too much now since he retires this year.

    I agree that May's timing is interesting. The government has clearly decided to beat the anti-Europe drum so we can expect more of this. Of course timing is everything in politics. One week we have the popular media's bete noire (prisoner voting) and the next week there is "paedophiles have rights." All guaranteed to get certain newspapers worked into a frenzy.

  4. Even allowing for political rhetoric, such an inaccurate statement about the role of the courts is disappointing. There is no question that it is Parliament which makes the law.

    I agree on this as we have no choice.

  5. There should be a clear line between the parliment and courts powers.