Released sex offender fails to challenge ‘new relationships’ licence condition

Lord Pentland
Lord Pentland

A convicted sex offender who was released from prison on licence has failed in his challenge of a condition in his release licence requiring him to inform his supervising officer of any friendships, associations, or intimate or domestic relationships that he enters into with anyone.

The petitioner, known as AB, argued that the condition frustrated the purpose of the legislation governing the release of convicted prisoners and sought declarator that the condition was unlawful and breached his Article 8 rights under the European Convention on Human Rights.

The petition for judicial review was heard in the Outer House of the Court of Session by Lord Pentland.

Lacking in clarity

The petitioner was found guilty of six charges reflecting a sustained pattern of serious sexual assault on his two stepchildren, who regarded him as the only father that they had, in January 2011. During the period of his custodial sentence, the petitioner denied that he had committed any offences and refused to engage with several parts of the parole process.

The petitioner was released on licence in September 2019 at the two-thirds point of his sentence, as obliged under the relevant legislation. Home circumstances reports prepared on the petitioner recommended additional licence conditions, including one requiring him to notify his supervising officer of any developing personal relationships, whether intimate or not, with any person resident in a household containing children.

Subsequent reports recommended strengthening of the proposed notification obligation in light of the risk the petitioner presented in the community. The final version of the condition found in the petitioner’s licence, which expires on 20 January 2027, required him to immediately notify his supervising officer of any friendships, associations, or intimate or domestic relationships he entered into with anyone.

The petitioner submitted that the condition was invalid under the common law, and that its terms were so lacking in clarity and precision that the petitioner did not know what it meant and thus compliance with the condition was impossible.

He further submitted that it was not always possible to “immediately” inform his probation officer, who fulfilled the role of a supervising officer due to his residence in England, because she worked part-time. Moreover, it was difficult to know what amounted to a “friendship” or an “association” and to say at what point either of these relationships started, and each of the three probation officers he had had since release had taken different views about the level of information required to be given.

On the ECHR argument, it was submitted that the condition required the petitioner provide information concerning his personal relationships, established or nascent. A provision could not be regarded as “law” unless it was formulated with sufficient precision to enable the citizen to regulate his or her conduct, if necessary with appropriate advice, and to foresee the consequences of a given action.

Not impossible to comply with

In his opinion, Lord Pentland first examined the clarity of the condition, saying: “In my opinion, the terms of the condition in the present case are not void for lack of certainty. The language used in the condition has ascertainable meaning and is not so unclear in effect as to be incapable of certain application.”

He continued: “So far as the requirement of immediacy is concerned, I do not consider that this is impossible for the petitioner to comply with or that the word ‘immediately’ is so lacking in clarity as to be unenforceable and hence invalid. The law has long recognised, in various contexts, that a requirement for some action or step to be taken immediately is capable of being given practical effect.”

On the meaning of “immediately” in this case, he said: “It requires the petitioner to take prompt steps without any delay and with all reasonable speed to inform his supervising officer of the matters covered by the condition. That is not an unduly onerous requirement for the petitioner to comply with; the meaning and the effect of the requirement are clear.”

As regards the meanings of other words in the condition, he said: “In the Oxford English Dictionary ‘friendship’ is defined as meaning the state or relation of being a friend, an association of persons as friends, and a close relationship between friends. I cannot see that there should be any practical difficulty for the petitioner in recognising when he has entered into a new friendship. In the same dictionary ‘association’ is defined to mean a union in companionship on terms of social equality, fellowship, and intimacy. Again, there should be no practical problem for the petitioner to identify when he has formed a new association.”

Lord Pentland concluded: “For the reasons I have given, I am not persuaded that it is impossible for the petitioner to comply with the condition. It follows that the argument based on frustration of statutory purpose falls to be rejected.”

Straightforward language

Turning to the ECHR challenge, Lord Pentland began: “I do not consider that the condition lacks sufficient precision. The language it employs is straightforward and intelligible, as I have already explained. If the petitioner is in any doubt about how the condition applies in a particular set of circumstances he can easily seek guidance and advice from his supervising officer with regard to the type of relationships which he requires to disclose in order to comply with the condition. The petitioner explains in his affidavit that he is in regular contact with her.”

He continued: “It is notorious that paedophiles, such as the petitioner, often go to substantial lengths to gain clandestine access to children for the purpose of sexually abusing them. It is with this unfortunate reality in mind that the condition has been put in place. It should also be recalled that the petitioner’s offences involved serious sexual abuse of his stepchildren in the context of an intimate and domestic relationship he had formed with their mother. The importance of having an effective system for protecting the public against the possibility of further child abuse on the part of the petitioner can hardly be over-emphasised. In the circumstances, I have no difficulty in finding that the condition is lawful and proportionate under the ECHR.”

For these reasons, the petition was refused.

© Scottish Legal News Ltd 2021

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