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A. Draft resolution
(open)
Report | Doc. 12243 | 04 May 2010
Reinforcing measures against sex offenders
Committee on Legal Affairs and Human Rights
Summary
Sexual abuse, particularly of children, is an abhorrent crime, which causes lasting damage to its victims – yet it has been found that those who commit this crime once are likely to do so again. For that reason, some member states have set up national “sex offenders registers”, which log the personal details and location of convicted offenders, in order to supervise them in a way which minimises the risk to the community. Such registers are essential for any “vetting and barring” system, which stops sex offenders who pose a risk from finding jobs working with children or other vulnerable people.
These methods – when responsibly used as part of a wider programme of management – can play a key role in preventing reoffending, yet many member states do not yet have them in place. Furthermore, some sex offenders deliberately seek to avoid national controls by travelling abroad, counting on the fact that their criminal records will not follow them. To foil such attempts, the report calls on states with registers to share their information internationally – ideally via Interpol, which already has a database for this purpose – so that offender’s movements abroad can be overseen. This would be more effective, it believes, than a Europe-wide sex offenders register.
Accurate national information, carefully managed and properly shared internationally, is the key to keeping children and other vulnerable people safe from repeat sex offenders, wherever they are.
A. Draft resolution 
(open)1. The Parliamentary Assembly recognises the gravity
of the harm caused to victims of sexual offences. Sexual abuse is
unquestionably an abhorrent type of wrongdoing with debilitating
effects on its victims. Children and other vulnerable individuals
are entitled to special protection in this respect.
2. Sex offenders are thought to be amongst the most frequent
recidivists. The Assembly considers that the supervision of sex
offenders should be seriously addressed within the member states.
3. Current national systems dealing with sex offenders vary greatly
across member states. Whilst some states already have comprehensive
management systems to deal with such offenders, including a functioning ‘sex
offenders register’, other states have no such arrangements and
do not have a register in place.
4. A ‘sex offenders register’ is an instrument used in a procedure
whereby convicted sex offenders are required to notify the relevant
authority of personal information such as their name, address and
date of birth, and immediately inform the authority if their personal
circumstances change. The record of these notifications is commonly
referred to as a ‘sex offenders register.’ For such registers to
be effective, all information stored must be accurate and regularly
updated.
5. The Assembly recognises the key role that a register can play
in the supervision of offenders, especially when employed as part
of a comprehensive sex offenders management programme. The information
in the register may be used to assess the risk that the offender
poses to the community and therefore manage that risk. If a large
amount of relevant and up to date information is stored on the register,
it can play a key role in detecting perpetrators of offences rapidly.
Registers can also function as administrative tools since they remind relevant
authorities of the whereabouts of offenders.
6. The Assembly is particularly concerned by the fact that convicted
sex offenders are able to continue working with children and vulnerable
persons because of a loophole in the national system or a system
abroad. Under certain circumstances, sex offenders thus manage to
find employment in fields such as education, the prison service,
health service and childcare. The Assembly is concerned that some
member states do not have an effective ‘vetting and barring’ system
in place whereby those who have been convicted of certain sexual offences
are prohibited from working with children and other vulnerable persons.
7. The Assembly recalls that the 2007 Council of Europe Convention
on the Protection of Children Against Sexual Exploitation and Sexual
Abuse (CETS No. 201) obliges states to introduce measures, in conformity
with their internal law, to ensure that candidates for professions
necessitating regular contact with children have not been convicted
of acts of sexual exploitation or sexual abuse of children.
8. To date, only Albania, Denmark and Greece have ratified the
Convention, the entry into force of which requires five ratifications.
The Assembly calls upon those states which have not yet signed and
ratified the treaty to do so.
9. The Assembly emphasises that measures to prevent sexual offences
must be based on laws that fully respect human rights and fundamental
freedoms, in particular Article 8 of the European Convention on
Human Rights, which guarantees the right to respect for private
life. In this regard, the Assembly recalls that some of those systems
which include a sex offenders register (such as in France and in
the United Kingdom) have been deemed to be compliant with Convention
rights by the European Court of Human Rights.
10. Sex offenders travel around – including between European countries
– to perpetrate offences and to avoid conviction and escape supervision
in their home country The Assembly considers that the management of
sex offenders therefore requires international co-operation.
11. The Assembly regrets the inadequacy of information and exchange
of intelligence on sex offenders between member states. The Assembly
therefore urges states to increase the quality, quantity and regularity of
information and intelligence sharing on this subject. Such information
should be shared in compliance with the provisions of the Council
of Europe Convention for the Protection of Individuals with regard
to Automatic Processing of Personal Data (ETS No. 108) which secures
for every individual respect for his/her rights and fundamental
freedoms, and in particular his/her right to privacy, with regard
to automatic processing of personal data relating to him/her.
12. In view of the high degree of freedom of movement and establishment
among European states, the Assembly considers it particularly important
for states to exchange information on those offenders who are deemed
unsuitable for work with children or vulnerable persons. Information
contained in national vetting systems should therefore be made available
abroad, including in the Schengen information system, to ensure the
safety of society’s most vulnerable persons.
13. Interpol has the capacity to store in its database information
on sex offenders provided by member states. This information is
available to law enforcement officials in all member states to facilitate
criminal investigations.
14. The Assembly also recognises the need for awareness-raising
campaigns in member states to educate people about the risks posed
by sex offenders and help them recognise signals of abuse.
15. The Assembly favours an integrated approach at the international
level in order to achieve greater effectiveness and coherence in
the protection of all individuals against sexual offences.
16. Consequently, the Assembly does not support the introduction
of a Europe-wide sex offenders register but calls on member states
to take effective national measures to prevent sexual offences and,
in particular, to:
16.1. evaluate
their respective legal frameworks to assess whether they provide
appropriate safeguards against sexual offences and, if necessary,
to amend their legislation in order to create a comprehensive system
to manage sex offenders;
16.2. introduce, as part of their national system, in accordance
with the provisions of the European Convention on Human Rights and
in particular in compliance with the principle of proportionality,
a sex offenders register which contains accurate and regularly updated
information on persons convicted of such offences in order to produce
a central file allowing an exchange of information between entitled authorities,
as strictly defined by law;
16.3. form a comprehensive package of legal measures aimed at
controlling and monitoring movement of sex offenders, particularly
travel abroad;
16.4. introduce a system of ‘vetting and barring’ for employment
purposes to ensure that those who pose a risk cannot work with children
or vulnerable persons;
16.5. ensure any legislation introduced fully respects individual
rights, in particular the right to private life, and therefore restricts
access to the sex offenders register only to duly entitled officials
and excludes access by the general public to the sex offenders register;
16.6. any disclosure of information to a particular member of
the public considered necessary to protect a particular child or
children should be strictly regulated and accompanied by adequate
technical or other safeguards to protect against unauthorised access
or misuse;
16.7. introduce a coordinated and efficient child abduction
alert system;
16.8. sign and ratify the Convention on the Protection of Children
Against Sexual Exploitation and Sexual Abuse without delay, and
implement it fully;
16.9. establish awareness-raising campaigns concerning detection
of sexual abuse and ways to address this problem.
17. In order to be effective, the monitoring of sex offenders
must include increased co-operation between states. The Assembly
therefore urges member states to:
17.1. increase
the quality, quantity and regularity of the information they share
with other member states on sex offenders in order to effectively
oversee the movement of offenders who travel around;
17.2. improve the information exchange with other member states
on persons convicted of sex offences so that unsuitable persons
are not able to gain employment abroad to work with children or other
vulnerable persons;
17.3. increase the quantity and regularity of the information
on sex offenders which they feed into the Interpol database.
B. Explanatory memorandum by Ms de Pourbaix-Lundin, rapporteur
(open)1. Introduction
1. On 23 November 2007, the Parliamentary Assembly decided
to refer to the Committee on Legal Affairs and Human Rights, for
report, the motion for a resolution “For a Europe-wide sex offenders
register” (Doc. 11400, Reference 3382). At its meeting in January 2008, the
committee appointed me rapporteur.
2. I would begin by stating that the issue of sexual offences
is a topic which gives rise to strong feelings. Equally, the question
of introducing a European sex offenders register is bound to engender
conflicting responses due to varying opinions on the efficacy of
such a register.
3. Some countries have already introduced a sex offenders register,
including Canada, France, Ireland, the United Kingdom and the United
States. Depending on the country, these registers may be made available solely
to the relevant authorities or to a wider public.
4. A 1993 study conducted in the United States showed that out
of 621 child abductions ending in homicide, 44% of the children
were murdered in the first hour, 74% in the first three hours and
91% in the first twenty-four hours after being abducted. As such, victims’ safety and even
survival may depend on the speed and scale of the efforts made to
locate them as soon as their abduction is reported to the authorities.
Sex offenders are amongst the most consistent reoffenders and they
travel around to avoid conviction, including between European countries.
As such, victims’ safety and even
survival may depend on the speed and scale of the efforts made to
locate them as soon as their abduction is reported to the authorities.
Sex offenders are amongst the most consistent reoffenders and they
travel around to avoid conviction, including between European countries.5. The main reason for introducing a Europe-wide sex offenders
register would be to afford the public greater protection against
sexual assaults. While any recidivism is of public concern, the
prevention of sexual violence is particularly important, given the
often irreparable damage that these offences cause victims and the fear
they engender in communities. Increased co-operation between European
countries in order to manage sex offenders more effectively is therefore
essential.
6. For the preparation of this report, I visited, in September
2009, various relevant bodies in the United Kingdom, where a comprehensive
sex offenders management programme (including a sex offenders register) is
currently in place. I also carried out a fact-finding visit to the
headquarters of Interpol in Lyon on 4 December 2009.
7. In addition, a questionnaire was sent to all national delegations
to the Parliamentary Assembly and the representatives of observer
states to the Assembly.
8. This report will firstly outline the issues involved in introducing
a sex offenders register. The compatibility of such registers with
the rights enshrined in the European Convention on Human Rights
(“the Convention”, “ECHR”), according to the European Court of Human
Rights (“the Court”), will then be summarised, with particular emphasis
on cases concerning the United Kingdom.
2. Issues
9. The possible introduction of a Europe-wide sex offenders
register may give rise to some controversy. Although the seriousness
of this type of crime can scarcely be denied, certain concerns may
arise, particularly as regards the justification for introducing
such a register. Valid reasons would also have to be given for setting up
a register confined exclusively to sex offences.
10. The question also arises as to the effectiveness of this type
of register. Some registers are in fact based on the voluntary provision
of information by sex offenders. It is unlikely that all sex offenders,
especially those most inclined to reoffend, provide this information.
11. In addition, consideration must be given to the reliability
of such a register. In order to be reliable, the register would
have to be updated regularly to ensure that it contains accurate
information.
12. Lastly, the introduction of a Europe-wide sex offenders register
must comply with the principle of proportionality. Inclusion in
such a register naturally has certain repercussions on the sex offenders’
privacy and reintegration into society. As will be shown in the
next section, a system such as the United Kingdom's has been deemed
to be compliant with the Convention for the purposes of Article
8 on the right to respect for private life. Indeed, the Court has
stated that “the requirements placed upon [sex offenders] were proportionate
to the aims pursued by the legislation in view of the gravity of
harm which may be caused to victims of sexual offences and the earlier
statement of the Court that states have a duty under the Convention
to take certain measures to protect individuals from such grave
forms of interference”.
3. European Court of Human Rights – Relevant case law
13. The following cases have been decided by the European
Court of Human Rights as regards the United Kingdom system:
More
recently, the following cases were decided as regards the French
sex offenders register:
13.1. Adamson
v. the United Kingdom (an admissibility decision)
– The applicant had committed a single offence of indecent assault
and was required to notify the police of his details under the Sex Offenders
Act 1997. He complained that this amounted to a breach of Article
8 of the ECHR. The Court held that, whilst there was an interference
with the applicant’s Article 8 rights, that interference was necessary
and proportionate “to the prevention of crime and the protection
of the rights and freedoms of others.” Indeed, it was stated that
the complaint was “manifestly ill-founded”. The applicant also argued that
the notification requirements breached his rights under Article
7 because the provisions were not in place when he committed the
offence and Article 3 because he said branding him a sex offender
for life was inhumane and degrading and might put his family at
risk. Both these arguments were dismissed. The Court found that
the measures were preventative rather than an additional penalty
under Article 7 and that the requirements did not meet the minimum
level of severity required for a breach of Article 3.
(an admissibility decision)
– The applicant had committed a single offence of indecent assault
and was required to notify the police of his details under the Sex Offenders
Act 1997. He complained that this amounted to a breach of Article
8 of the ECHR. The Court held that, whilst there was an interference
with the applicant’s Article 8 rights, that interference was necessary
and proportionate “to the prevention of crime and the protection
of the rights and freedoms of others.” Indeed, it was stated that
the complaint was “manifestly ill-founded”. The applicant also argued that
the notification requirements breached his rights under Article
7 because the provisions were not in place when he committed the
offence and Article 3 because he said branding him a sex offender
for life was inhumane and degrading and might put his family at
risk. Both these arguments were dismissed. The Court found that
the measures were preventative rather than an additional penalty
under Article 7 and that the requirements did not meet the minimum
level of severity required for a breach of Article 3. 13.2. Massey v. the United Kingdom – The applicant was convicted on
a number of counts of indecent assault and sentenced to six years
in prison. He was subject to the notification requirements indefinitely. Referring
to the Adamson case as authority on the matter, the Court found
that the interference with the offender’s private life under Article
8 was necessary and proportionate for the prevention of crime.
– The applicant was convicted on
a number of counts of indecent assault and sentenced to six years
in prison. He was subject to the notification requirements indefinitely. Referring
to the Adamson case as authority on the matter, the Court found
that the interference with the offender’s private life under Article
8 was necessary and proportionate for the prevention of crime. 13.3. Ibbotson v. the United Kingdom – This case was brought by one
of the first convicted sex offenders required to register under
the Sex Offenders Act 1997. The offender claimed that being on the register
was an additional punishment being imposed after he had been sentenced
for the offence and that the provisions therefore breached Article
7 of the ECHR. However, the European Commission of Human Rights
declared the application inadmissible. It was found that the requirements
were preventative rather than punitive, in the sense that inclusion
on the register might help to dissuade an individual from reoffending.
– This case was brought by one
of the first convicted sex offenders required to register under
the Sex Offenders Act 1997. The offender claimed that being on the register
was an additional punishment being imposed after he had been sentenced
for the offence and that the provisions therefore breached Article
7 of the ECHR. However, the European Commission of Human Rights
declared the application inadmissible. It was found that the requirements
were preventative rather than punitive, in the sense that inclusion
on the register might help to dissuade an individual from reoffending.13.1. Bouchuart v. France,Gardel v. France, M.B. v. France –
The applicants were three French nationals who lived in France.
All three were sentenced (in 1996, 2003 and 2001) to terms of imprisonment
for rape of 15-year-old minors by a person in a position of authority.
On 9 March 2004, Law No. 2004-204 created a national judicial database
of sex offenders, and all three applicants were included in the
database. They complained that being put on the register breached
their Article 7 and Article 8 rights. The Court stated that inclusion
in the national Sex Offender Database and the corresponding obligations
for those concerned did not constitute a "penalty" within the meaning
of Article 7, paragraph 1, of the Convention and that they had to
be regarded as a preventive measure to which the principle of non-retrospective
legislation, as provided for in that article, did not apply. Indeed,
the Court could not call into question the prevention-related objectives
of the database. Sexual offences were clearly a particularly reprehensible
form of criminal activity from which children and other vulnerable people
had the right to be protected effectively by the state. As for Article
8, the Court concluded that the system of inclusion in the database
of sex offenders had struck a fair balance between the competing private
and public interests at stake, and there was therefore no violation
of Article 8.
–
The applicants were three French nationals who lived in France.
All three were sentenced (in 1996, 2003 and 2001) to terms of imprisonment
for rape of 15-year-old minors by a person in a position of authority.
On 9 March 2004, Law No. 2004-204 created a national judicial database
of sex offenders, and all three applicants were included in the
database. They complained that being put on the register breached
their Article 7 and Article 8 rights. The Court stated that inclusion
in the national Sex Offender Database and the corresponding obligations
for those concerned did not constitute a "penalty" within the meaning
of Article 7, paragraph 1, of the Convention and that they had to
be regarded as a preventive measure to which the principle of non-retrospective
legislation, as provided for in that article, did not apply. Indeed,
the Court could not call into question the prevention-related objectives
of the database. Sexual offences were clearly a particularly reprehensible
form of criminal activity from which children and other vulnerable people
had the right to be protected effectively by the state. As for Article
8, the Court concluded that the system of inclusion in the database
of sex offenders had struck a fair balance between the competing private
and public interests at stake, and there was therefore no violation
of Article 8.4. Case study: management of sex offenders in the United Kingdom
14. In the United Kingdom, certain sex offenders are
required to notify to the police annually personal information such
as their name, address and date of birth, and to update the police
whenever their personal circumstances change. The police record
of these notifications is commonly referred to as the “sex offenders register.”
The United Kingdom system has, as illustrated above, been held by
the European Court of Human Rights to be compliant with the Convention.
4.1. United Kingdom legislation
15. The Sex Offenders Act 1997 served as the basis for introducing
a requirement that certain persons having committed offences of
a sexual nature register with the police for a set length of time.
Following a review of the 1997 act, it was repealed and replaced
by the Sexual Offences Act 2003, which aimed to modernise the law
on sexual offences as well as to deter and manage sex offenders.
The Violent Crime Reduction Act 2006 further expanded notification requirements
to include offenders convicted of a wider range of crimes with sexual
motives.
served as the basis for introducing
a requirement that certain persons having committed offences of
a sexual nature register with the police for a set length of time.
Following a review of the 1997 act, it was repealed and replaced
by the Sexual Offences Act 2003, which aimed to modernise the law
on sexual offences as well as to deter and manage sex offenders.
The Violent Crime Reduction Act 2006 further expanded notification requirements
to include offenders convicted of a wider range of crimes with sexual
motives.16. The following table summarises the provisions of the Sexual
Offences Act 2003 regarding notification requirements for sex offenders.
|
Question and relevant section |
Answer according to the 2003 act |
|---|---|
|
Who must notify as a “relevant offender”? (Section 80 and Schedule 3) |
persons convicted of certain sexual offences listed in Schedule 3 of the 2003 act (including rape, certain child sex offences committed by adults and certain indecent assault offences) persons found not guilty of a Schedule 3 offence by reason of insanity persons found to be under a disability and to have committed the act charged against him/her in respect of a Schedule 3 offence in England, Wales and Northern Ireland: persons cautioned in respect of a Schedule 3 offence |
|
What information has to be notified? (Section 83) |
date of birth national insurance number name (and other previous names) address (and address on the date that the notification was given) address of any other premises in the United Kingdom where he/she regularly stays in Scotland, certain information on the offender’s bank account, credit and debit cards |
|
When must the offender notify? (Sections 84 and 85) |
within three days of the “relevant date”; normally the date of the conviction for the relevant offence reconfirm the information given to the police every twelve months notify any changes to the information within three days of the change notify within three days if released from custody, imprisonment or detention in a hospital. |
|
How to notify? (Section 87) |
by attending a prescribed police station by giving oral notification to any police officer or other person authorised for that purpose by the officer in charge of the station police may take the offender’s fingerprints and photograph any part of him/her upon notification notifications must be acknowledged in writing by police |
|
For how long is the offender required to notify? (Section 82) |
depends on the sentence received for sexual offence for more than thirty months imprisonment, indefinite notification period for six to thirty months imprisonment, ten years notification for six months or less imprisonment, seven years notification if cautioned for Schedule 3 offence, two years notification notification periods halved for under 18s |
|
What happens if the offender wants to travel abroad? (Section 86 and the Sexual Offences Act 2003 [Travel Notification Requirements] Regulations 2004) |
if offender to leave United Kingdom for three or more days, must notify police at least seven days in advance if reasonable excuse for not informing in advance, offender can notify up to twenty-four hours before departure notification must include: departure date, destination country or countries, point(s) of arrival, identity of carrier(s), first night accommodation details, return date, point of return in United Kingdom |
|
What happens if the offender is under 18 or under 16 in Scotland? (Section 89) |
court can direct obligation to comply with notification requirements onto parents parents ensure young offender attends police station with them when notification being given |
|
What happens if the offender fails to notify or provides false information? (Section 91) |
this is a criminal offence under the act penalties range from a fine of up to ₤5 000 to imprisonment for up to five years |
4.2. A wider package of measures
17. During her visit to the United Kingdom, it was continually
relayed to the rapporteur that the notification requirements under
the 2003 act form only one component of a comprehensive package
of measures used in the management of sex offenders in the United
Kingdom. The 2003 act introduced further orders:
- Sexual Offences Prevention Orders (SOPO):
- Risk of Sexual Harm Orders (RSHOs):
18. A breach of a SOPO or RSHO is a criminal offence and can incur
a fine of up to £5 000 or imprisonment for up to five years. Both
the police and the individual may apply to vary, renew or discharge
SOPOs and RSHOs, and the individual can appeal the making of either
order in the first place.
19. The Child Exploitation and Online Protection Centre emphasised
to the rapporteur that the vast majority of missing sex offenders
are abroad. The 2003 act introduced measures in an attempt to deal
with these travelling offenders:
- Notification orders (sections 97-103, 2003 act): these require sex offenders who have been convicted outside the United Kingdom to register with the police to make them subject to notification requirements. Applications for these orders are heard by the court and can only be made by police chief constables in respect of an individual residing (or intending to reside) in that chief constable’s police area. According to Home Office guidance, “a decision to apply for the order will be made on intelligence that an individual with a conviction, caution for a sexual offence overseas is in, or is intending to come, to the United Kingdom and is likely to remain resident”.
- Foreign Travel Orders (sections 114-122, 2003 act): FTOs prevent offenders with convictions for sexual offences against children from travelling abroad where the offender has been convicted of a Schedule 3 offence and has acted in such a way as to give reasonable belief that it is necessary to make the order to protect children from serious sexual harm from the offender outside the United Kingdom. FTOs are made by a magistrate on the application of a chief officer of police. An FTO can prevent the offender from travelling to a specified country or any travel outside the United Kingdom. An FTO will last for a maximum fixed period as specified in the order. The maximum fixed period used to be six months; however, this was recently extended to a five-year maximum period under section 24 of the Policing and Crime Act 2009, which received Royal Assent on 12 November 2009. The maximum period was increased following reports that, by August 2008, only five FTOs had been made, mainly because the police would not make applications as six months was too short a period. Breach of an FTO is a criminal offence. Offenders subject to a FTO must also comply with the travel notification requirements provided for in section 86 of the 2003 act, meaning the person must notify the police in advance if he/she intends to travel abroad for three days or more.
20. In the practical application of these measures for managing
travelling offenders, serious difficulties in the cross-border information-sharing
process were reported to the rapporteur during her visit to the
United Kingdom. The importance of sharing actual intelligence on
travelling offenders rather than just general information on their
travel was underlined to the rapporteur.
21. In 2001, the Multi-Agency Public Protection Arrangements (MAPPA)
were set up under the Criminal and Court Services Act 2000 to support
the assessment and management of the most serious sexual and violent offenders.
MAPPA bring together the police, the probation and the prison services,
which together are known as the “MAPPA Responsible Authority.” Other
agencies are under a duty to co-operate with the responsible authority,
including social care, health, housing and education services. The
overall aim of MAPPA is to draw up a risk management plan for the
most serious offenders, amalgamating the information, skills and
resources provided by the individual agencies being co-ordinated
through MAPPA. MAPPA promotes information sharing between all the
agencies, for example police will share intelligence information
with offenders’ managers on offenders’ behaviour. MAPPA assesses
the risk posed by offenders and manages the risk posed by classifying the
offenders into one of three levels of “management intervention”.
Those who pose the highest risk of serious harm are placed at Level
Three, requiring multi-agency co-operation and oversight at a senior
level with the authority to commit exceptional resources.
22. Furthermore, section 28 of the Offender Management Act 2007
has enabled the ministry of justice to pilot mandatory polygraph
tests for sex offenders in the community, subject to license release
from prison. The polygraph will be used alongside other processes
in place to manage sex offenders to determine whether it can be
used as an additional tool in the management of sex offenders.
23. During the rapporteur’s visit to the United Kingdom, all her
interlocutors agreed that the simple fact of having a sex offenders
register would be more or less useless without the management tools
described above. The importance of the risk assessment procedure
was particularly emphasised.
4.3. Access to the register
4.3.1. United Kingdom
24. Under the Violent Crime Reduction Act 2006, the National
Violent and Sex Offender Register (ViSOR) was introduced to support
MAPPA. ViSOR comprises a database of records of those required to
register with the police under the Sexual Offences Act 2003, those
jailed for more than twelve months for violent offences, and unconvicted
people thought to be at risk of offending. The register can be accessed
by: the Police; HM Prison Service personnel; the Serious Crime Analysis
Section; the Child Exploitation and Online Protection Centre; the
Joint Border Operations Centre; the British Transport Police; HM
Forces Service Police Crime Bureau; Probation Service areas in England
and Wales; and the Scottish Criminal Justice Social Work Organisations.
The register is managed by the National Policing Improvement Agency
of the Home Office, and is rated at “Confidential” level in the
Government Protective Marking Scheme, making it a secure system.
25. Section 140 of the Criminal Justice and Immigration Act 2008
amended the Criminal Justice Act 2003 by inserting new sections
327A and 327B into this act. These new sections place a statutory
duty on MAPPA responsible authorities to consider, in every case,
disclosure to members of the public of information in its possession
relating to the convictions of any child sex offender being managed
by it. This implements Action 3 of the Government’s “Review of the
Protection of Children from Sex Offenders.” MAPPA responsible authorities
need to be aware that under new sections 327A(2) and (3) of the
Criminal Justice Act 2003, there will be a presumption that information
will be disclosed where the MAPPA responsible authority has reasonable cause
to believe that a child sex offender poses a risk of serious harm
to any particular child or children, and the disclosure of information
to a particular member of the public is necessary for the purpose
of protecting the particular child or children from serious harm
caused by that offender.
26. In September 2008, the Home Office began pilot schemes to
increase the amount of information about particular child sex offenders
that is shared with the public. Under the pilot scheme, parents,
carers or guardians could request information on individuals who
have contact with their children regarding previous convictions
or suspicions of abuse. These pilots took place in four police areas
and ended in September 2009. In the first six months of the trial
alone, more than 150 parents made inquiries. Of those, 10 were given
relevant information. The pilots are now being independently evaluated,
and as Alan Campbell, Home Office Minister, stated: “if this concludes
the pilot has been a success, the Government will consider rolling
out the scheme nationally.” Shadow Home Secretary
Chris Grayling was also supportive of the scheme, stating: “If those pilots
have shown that actually it makes a difference, that it doesn't
lead to vigilante-style justice, then I'd be very sympathetic and
supportive of the idea that it could be extended." The United Kingdom system could thus
see a review of levels of public access to offenders’ information
once the evaluation is complete.
Shadow Home Secretary
Chris Grayling was also supportive of the scheme, stating: “If those pilots
have shown that actually it makes a difference, that it doesn't
lead to vigilante-style justice, then I'd be very sympathetic and
supportive of the idea that it could be extended." The United Kingdom system could thus
see a review of levels of public access to offenders’ information
once the evaluation is complete.4.3.2. Full disclosure – United States
27. In the United States, the Congress has passed several
laws that require states to implement sex offender and crimes against
children registers. “Megan's Law,” as it is commonly
known, is an amendment to a previous act, and it introduced compulsory
“community notification” by providing public access to information
about convicted sex offenders. All US states now use sex offender
registry websites to notify the public of sex offenders living in
their area. However, there remain variations in the rules across
states, for example in the methods of disclosure used and the type
of information published. As yet, there is little to no empirical
evaluation to support any assumptions that exist about the impact
of Megan’s Law on reoffending rates or on the number of assaults
against children.
“Megan's Law,” as it is commonly
known, is an amendment to a previous act, and it introduced compulsory
“community notification” by providing public access to information
about convicted sex offenders. All US states now use sex offender
registry websites to notify the public of sex offenders living in
their area. However, there remain variations in the rules across
states, for example in the methods of disclosure used and the type
of information published. As yet, there is little to no empirical
evaluation to support any assumptions that exist about the impact
of Megan’s Law on reoffending rates or on the number of assaults
against children.28. Representatives from both leading children’s charities in
the United Kingdom (Barnardo’s and the NSPCC) expressed their strong
reluctance towards making the register public. Indeed, they expressed
a fear that this gives parents a false sense of security and may
drive offenders “underground”, meaning they do not register at all.
Furthermore, there are reports that some offenders simply resort
to inter- and intra-state movement in order to gain easier access
to children in communities where they are not known. In any case, were
an equivalent law introduced in a Council of Europe member state,
there is a risk that the Court might find it in breach of Article
8 EHCR, as being a disproportionate interference with the right
to respect for private life.
4.4. Preventing offenders from working with children and vulnerable adults
29. In the United Kingdom, the Independent Safeguarding
Authority (ISA) was set up in January 2009 to help prevent unsuitable
people from working with children and vulnerable adults. The ISA
board of appointees assesses every person who wants to work or volunteer
with vulnerable people using data gathered by the Criminal Records
Bureau, including relevant criminal convictions, cautions, police
intelligence and other appropriate sources. Using this information,
they decide on a case-by-case basis whether each person is suited
to this work. Potential employees and volunteers will need to apply
to register with the ISA and their status for employers will be
securely stored. Only applicants who are judged not to pose a risk
to vulnerable people can be ISA-registered. Once the scheme has
been fully rolled out, employers who work with vulnerable people
will only be allowed to recruit people who are ISA-registered. Since
October 2009, a new vetting and barring scheme has been in operation,
covering all those working directly with children and vulnerable
adults. There are two lists – one of staff barred from working with
children and the other of those prohibited from working with vulnerable
adults. It is now a criminal offence for individuals barred by the
ISA to work or apply to work with children or vulnerable adults
in a wide range of posts – including most National Health Service
jobs and jobs in the Prison Service, education and childcare. Employers
also face criminal sanctions for knowingly employing a barred individual.
4.5. Pending issues – Compatibility with the Convention
30. Regarding the particular issue of there being no
review mechanism for offenders subject to an indefinite notification
period, the case R (on the application
of F and Another) v. Secretary of State for the Home Department,
[2009] EWCA Civ 792; [2009] WLR (D) 253 is of significance.
In this Court of Appeal case, the offenders were subject to an indefinite
notification period under section 82 of the 2003 act and had no mechanism
for review. The first, F, was 11 when he committed various sexual
offences against a small child, including rape and sexual assault.
He was sentenced to thirty months’ imprisonment. The second was convicted
of indecent assault and was sentenced to four years in prison.
31. In July 2009, the Court of Appeal ruled that although the
sex offender notification requirements serve a legitimate aim, the
fact that an offender subject to the requirements indefinitely cannot
have the question of whether the requirements continue to serve
a legitimate purpose reviewed is incompatible with Article 8 ECHR on
proportionality grounds. It was stated that this argument was even
stronger in the case of young offenders than in the case of adult
offenders. The Secretary of State appealed the decision in the Supreme
Court of the United Kingdom on 3and 4February
2010.
32. The judgment has not yet been handed down, but if the Secretary
of State loses the appeal, the United Kingdom Government will have
to consider implementing a review mechanism for both adults and
children. If this were to occur, the rest of the system would not
have to be changed. Indeed, a representative from Barnardo’s (a
leading United Kingdom children’s charity) reported concerns to
the rapporteur about the possibility of children appearing indefinitely
on the register from the age of ten, and expressed the charity’s belief
that a mechanism for review be introduced for child offenders.
4.6. Effectiveness of the United Kingdom register
33. In the year ending March 2008, police recorded 53 540
sexual offences in England and Wales, representing a 7% drop over
2006-07 figures. The
total number of MAPPA Registered Sexual Offenders has gradually
increased over the past four years, with the 2008-09 figure being
32 336, representing an increase of 3% on the previous year. The
number of those who reoffend seriously has remained at around 0.5%
for the past four years, and most recently in 2008-09 was 0.37%
for Level 2 offences.
The
total number of MAPPA Registered Sexual Offenders has gradually
increased over the past four years, with the 2008-09 figure being
32 336, representing an increase of 3% on the previous year. The
number of those who reoffend seriously has remained at around 0.5%
for the past four years, and most recently in 2008-09 was 0.37%
for Level 2 offences. 34. The first of these figures represents a reduction in the overall
number of sexual offences, which may suggest that the register is
having a positive impact. However, not all of these offences attract
a registration requirement and not all offences for which there
is a registration requirement come within the definition of a sexual
offence in these statistics. On the other hand, the small percentage
of those on the register who are convicted of reoffending seriously
is perhaps more indicative of the register’s positive effect. Equally,
the relevance of this statistic is difficult to gauge given that
it will never be known whether or not the person would have reoffended
at all.
35. In any event, it must be recalled that the register does not
work on its own – notification requirements are just one tool in
a comprehensive package of measures designed to manage sex offenders
in the United Kingdom; so any statistics are not solely a reflection
of the register. The Association of Chief Police Officers (ACPO)
and the United Kingdom Government Home Office both emphasised to
the rapporteur that the United Kingdom system was successful because
of the abundance of tools that surround the register.
36. Setting aside crime statistics, the notification requirements
also play an important role as an administrative tool in supervising
sex offenders through storing and sharing information and intelligence
on these offenders. The ACPO reported to the rapporteur that the
register functions as a reminder of the whereabouts and activities
of offenders and if an offender does not notify, they are well aware
of this. The information stored can be used to assess the risk that
the offender poses to the community and therefore manage that risk.
The large amount of information stored on the register also plays
a key role in helping to detect perpetrators of offences rapidly.
Furthermore, compulsory registration with the ISA ensures a vetting process
for those who wish to work with vulnerable persons.
37. As has already been acknowledged by the European Court, the
purpose of the registration requirement “is to contribute towards
a lower rate of reoffending in sex offenders, since a person's knowledge
that he is registered with the police may dissuade him/her from
committing further offences and since, with the help of the register,
the police may be enabled to trace suspected reoffenders faster”.
38. Lastly, it must be noted that sex offenders registers and
management systems do not replace the need for wide awareness-raising
campaigns so that parents are aware of the risks and know how to
recognise the signs of sexual abuse. This was emphasised to the
rapporteur by a Barnardo’s representative, who said that there was
a need for a large public awareness campaign and increased working
with parents to make them more aware of risks posed by offenders.
5. Sharing of information at European level
5.1. Justification for a Europe-wide register and associated difficulties
39. What is clear is that sex offenders sometimes continue
offending and that they travel around. It was reported to the rapporteur
by the Child Exploitation and Online Protection Centre that the
vast majority of missing sex offenders are believed to be abroad.
There are offenders who have never been prosecuted for their offences
and remain in countries that, due to economic realities or cultural
differences, offer the possibility of engaging in child sexual abuse.
There is also some indication that United Kingdom citizens are residing
in one overseas country and travelling from that country to offend
in another overseas country, perhaps as a further layering of their
protection from United Kingdom authorities or to isolate their offending
activity from their day-to-day life. Increased co-operation between
European countries is therefore imperative to prevent sex offenders
from travelling from one country to another with ease.
40. When considering the idea of a Europe-wide register, the difficulties
associated with this must be addressed. The most obvious obstacle
is the difference between criminal law systems in the member states. The
rapporteur sent a questionnaire to national delegations as part
of her inquiry in order to gain a better perspective of these disparities.
The analysis of the 31 replies to the questionnaire found that different
states may, for example, have different definitions relating to
the same sexual offence, or to what constitutes a “sex offender”
in the first place. Indeed, some countries may not even use that
term. An additional concern is that the legal age of sexual consent
differs according to the country, ranging from ages 13 to 18 across
the states. This means, for example, that sexual intercourse with
a person aged 16 is legal in the United Kingdom, but would be illegal
in Ireland, where the age of sexual consent is 17. There would therefore
have to be significant harmonisation of penal law across states
for a Europe-wide sex offenders register to be implemented.
41. A European sex offenders register would also have to be compatible
with the national legislation currently in force in each country
and, in this regard, domestic laws on personal data protection may
prove to be a significant hindrance (considering the fact that there
are different degrees of protection).
5.2. Recommended developments
5.2.1. Information sharing
42. Overall, it is advanced that the differing systems
used to manage sex offenders and, above all, the disparities in
criminal laws would constitute a substantial impediment to the establishment
of a Europe-wide sex offenders register. It is therefore necessary
that the rapporteur consider other, more workable solutions to the
issue. Firstly, the rapporteur would strongly recommend that each
of the member states establish a comprehensive system to manage
sex offenders in their own country. A national sex offenders register
such as the United Kingdom’s should be introduced (if not already
in place) to form part of a wider, efficient range of measures for
the management and control of sex offenders. Any such system would
of course have to be in accordance with Convention rights, and proportionate
and necessary for child protection or public protection. In this
regard, European Court of Human Rights case law has to date consistently
declared the United Kingdom system Convention compliant.
43. As well as establishing national management systems, greater
and more frequent sharing of information between states is crucial
to control the movement of travelling offenders. All parties who
met with the rapporteur in the United Kingdom expressed some concern
about the difficulty and inefficiency involved in exchanging information
with other states. The rapporteur underlines that such information
should be shared in compliance with the provisions of the Council
of Europe Convention for the Protection of Individuals with regard
to Automatic Processing of Personal Data (ETS No. 108), which secures
for every individual respect for his/her rights and fundamental
freedoms, and in particular his/her right to privacy, with regard
to automatic processing of personal data relating to him/her.
5.2.2. Interpol
44. The rapporteur met with an Interpol representative
in Lyon in December 2009 to discuss the issue of information sharing
between states. During this visit, Interpol emphasised the capacity
it has to store countries’ information on sex offenders. Interpol
also conveyed that states seemed reluctant to share information
on sex offenders. Indeed, it was reported that countries are more
willing to share information on drug-related crime than on sex offenders.
45. Interpol’s “I-24/7” global police communications network allows
all member countries’ law enforcement authorities to send and receive
information to any or all members via a secure Internet link. Interpol
hosts a database which contains information on offenders, including
known sex offenders, that has been forwarded to the General Secretariat
by its member countries. Using “I-24/7”, the National Central Bureau
can search and cross-check data in a matter of seconds, with direct
access to databases containing information on wanted persons, fingerprints,
DNA profiles, etc. This information is available to law-enforcement
officials in all member countries, providing the means to share
crucial information on criminals and facilitate criminal investigations.
46. Interpol has three different types of notice which relate
to identifying sex offenders and protecting children from such offenders:
- Green notices: these provide warnings and criminal intelligence about persons who have committed criminal offences and are likely to repeat these crimes in other countries. They are issued by Interpol when persons involved in the sexual abuse of children or the trafficking of child pornography at an international level are identified. On receiving information concerning these criminals, countries are then free to choose the appropriate course of action should they identify a person who is the subject of a green notice wishing to enter their territory. When a green notice is sent out in respect of a paedophile or sex offender, the message is clear: if this person wants to enter the country, it is possible that he will commit sexual offences against children.
- Yellow notices: these are issued when a child is reported missing from their usual place of residence. These are only issued at the request of a member state, so it is important that the member state requests the notice if they think a missing child has been taken abroad.
- Red notices: these are issued in respect of criminals whose arrest is requested by a country with a view to extradition. They contain full details of the arrest warrant and of the offence committed.
47. All these notices can be issued on a worldwide basis in Arabic,
English, French and Spanish.
48. Another of Interpol’s intelligence tools is the International
Child Sexual Exploitation (ICSE) image database, which allows specialised
investigators to share data with colleagues across the world. Introduced
in March 2009 as part of “I-24/7”, the ICSE uses sophisticated image
comparison software to make connections between victims and places.
It enables authorised users in member countries to access the database
directly and in real time, thereby providing immediate responses
to queries.
49. According to Interpol, countries have a duty to their own
children and to children in other countries to increase the amount
and frequency of information they feed into the Interpol database.
The rapporteur recommends that states make much greater use of Interpol’s
tools by sharing information on sex offenders via Interpol.
50. Lastly, those states who are also members of the European
Union can also
benefit from the European Law Enforcement Agency (Europol), which
is capable of storing information on sex offenders. Europol staff work
closely with law enforcement agencies in all European Union member
states as well as other European partner states: Albania, Bosnia
and Herzegovina, Croatia, Iceland, Moldova, Norway, Switzerland,
“the former Yugoslav Republic of Macedonia” and Turkey. Europol
gathers, analyses and disseminates large quantities of personal
data. Their partners use this input to prevent, detect and investigate
offences, and to track down and prosecute those who commit them.
Europol is a high-security operational centre which also functions
twenty-four hours a day, seven days a week, dealing with more than
9 000 cases a year. It has been especially engaged in investigations
to prevent child abuse, including child pornography on the Internet.
can also
benefit from the European Law Enforcement Agency (Europol), which
is capable of storing information on sex offenders. Europol staff work
closely with law enforcement agencies in all European Union member
states as well as other European partner states: Albania, Bosnia
and Herzegovina, Croatia, Iceland, Moldova, Norway, Switzerland,
“the former Yugoslav Republic of Macedonia” and Turkey. Europol
gathers, analyses and disseminates large quantities of personal
data. Their partners use this input to prevent, detect and investigate
offences, and to track down and prosecute those who commit them.
Europol is a high-security operational centre which also functions
twenty-four hours a day, seven days a week, dealing with more than
9 000 cases a year. It has been especially engaged in investigations
to prevent child abuse, including child pornography on the Internet. 5.2.3. Vetting and barring in employment
51. Citizens of European countries can move relatively
easily between the states both to live and work, making it particularly
easy for sex offenders to move country to take up employment with
access to children and vulnerable persons. In a context where information
is not being effectively exchanged between countries to prevent
sex offenders from gaining employment with children, this puts children
at risk and undermines our ability to protect them from abuse. It
was reported to the rapporteur during her visit to the United Kingdom
that there is a loophole in the national vetting system: background
checks carried out by the Independent Safeguarding Authority will
not pick up all criminal offences committed abroad because of poor
information-sharing between countries. Furthermore, an example was
given to the rapporteur that it is possible for a United Kingdom
convicted sex offender to move to France and work with children
as an English teacher, for instance. Therefore, as one element of
safe recruitment procedures, employers need to be able to access
information about prospective employees, including criminal records
information, to ensure that they have not been convicted of offences
against children or previously barred from working with children.
52. The Council of Europe has already been active on this issue
as regards children. In July 2007, it adopted its Convention on
the Protection of Children against Sexual Exploitation and Sexual
Abuse, which recognised the
importance of ensuring that people who have committed past offences
against children are not hired to work with children. In particular,
Article 5, paragraph 3, provides that: “Each Party shall take the
necessary legislative or other measures, in conformity with its
internal law, to ensure that the conditions to accede to those professions
whose exercise implies regular contacts with children ensure that
the candidates to these professions have not been convicted of acts
of sexual exploitation or sexual abuse of children.” Preventive measures
outlined in the Convention include the screening, recruitment and
training of people working in contact with children, making children
aware of the risks and teaching them to protect themselves, as well
as monitoring measures for offenders and potential offenders.
which recognised the
importance of ensuring that people who have committed past offences
against children are not hired to work with children. In particular,
Article 5, paragraph 3, provides that: “Each Party shall take the
necessary legislative or other measures, in conformity with its
internal law, to ensure that the conditions to accede to those professions
whose exercise implies regular contacts with children ensure that
the candidates to these professions have not been convicted of acts
of sexual exploitation or sexual abuse of children.” Preventive measures
outlined in the Convention include the screening, recruitment and
training of people working in contact with children, making children
aware of the risks and teaching them to protect themselves, as well
as monitoring measures for offenders and potential offenders.53. Despite this, some countries still do not have a formal system
of disqualification from working with children or vulnerable persons
at all, which states may argue would make it difficult for them
to enforce disqualifications from other countries. Accordingly,
it is crucial that all states introduce national vetting and barring
systems akin to that operating in the United Kingdom. These should
ensure that those who are deemed unsuitable for work with children
and vulnerable persons cannot gain access to them through their
work, in either a paid or voluntary capacity, for example as teachers,
sports coaches or in care institutions. The system should make it
a criminal offence for convicted sex offenders barred by the relevant
authority to work or apply to work with children or vulnerable adults.
Or, any person who applies for a job with children or vulnerable
adults should be asked to provide a document from the police (or
other relevant authority) stating that they have not been convicted
of sexual offences. Such a requirement already exists in Sweden.
54. There is a pressing need to improve the exchange of information
between Council of Europe member states concerning people convicted
of sexual offences, in order that unsuitable people are not able
to gain employment abroad with children or other vulnerable persons.
Information contained in national vetting systems on sex offenders
should therefore be made available abroad to ensure the safety of
children and vulnerable persons. While respecting data protection,
member states must pay particular attention to ensuring that any
such information exchanged may be used for purposes of employment
vetting for work with children and that the types of information
exchanged are adequate to fulfil this purpose.
6. Conclusions
55. On the whole, there are significant shortcomings
in the current European approach towards sharing information on
sex offenders. Decisive action needs to be taken to ensure the effective
control of sex offenders and the corresponding protection of the
public.
56. Looking at the relevant case law of the European Court of
Human Rights, it is clear that some of the existing systems to manage
sex offenders, including a register, would appear to be compatible
with the European Convention on Human Rights. At the same time,
the United Kingdom experience makes it clear that a sex offenders
register does not necessarily produce clear results on its own,
rather it needs to be employed as part of a comprehensive package
of measures to manage sex offenders.
57. Relevant United Kingdom bodies expressed a concern that a
lack of co-ordination and information sharing between European states
allowed certain offenders to “slip through the net”, and to cross
into other countries, only to commit further offences.
58. When considering the introduction of a Europe-wide register,
one must consider the practical impediments associated with the
proposal. The most apparent of these is the diverging criminal laws
in force from state to state; this means that reaching agreement
on who is to be included in the register could prove impracticable.
59. It is therefore proposed that instead of a Europe-wide register,
each state develop an efficient and comprehensive national system
to manage sex offenders. The systems should include a sex offenders
register, which should be supplemented by other measures such as
those designed to prevent offenders travelling freely and a vetting
and barring system to prevent offenders from working with children
and other vulnerable people.
60. As well as developing more thorough national systems, states
should also increase the quantity, the quality and regularity of
key information they share on sex offenders with other countries.
A way of doing this would be to feed more information on sex offenders
to Interpol, who have indicated to the rapporteur that they have
the capacity to act as a central database on sex offenders for European
states. In this context, data protection laws have to be carefully
respected.
61. Furthermore, states should share the information collected
in national vetting and barring systems to ensure that sex offenders
are prevented from working with children and vulnerable persons
across Europe.
62. Council of Europe member states have the duty to address the
danger sex offenders pose in all states and to take action to combat
this threat. As was poignantly stated to the rapporteur during her
visit to the United Kingdom: if, in the end, only one child is prevented
from being harmed, improved co-operation between the states has
been a success.