Long list of reasons why this register is failing the public

Published on Sunday 3 August 2008 21:33

THE phrase slips from the newsreader's lips so easily that it has become part of the daily news landscape. Someone convicted of an offence in a Scottish court has, in addition, been "placed on the Sex Offenders Register". Occasionally it is expressed as "required to sign the Sex Offenders Register".

Whatever the variation, it conjures an image that somewhere there is a large leather-bound volume in which the names of men and women who have been convicted of a sexual crime, and whom we should keep an eye on even when they have served their sentence, are entered by clerks with fountain pens. Like so many law and order measures in recent times, the more the Sex Offenders Register is invoked the less is known about it.

There isn't a book, or even a single list. There are numbers collected by individual police forces, and in Scotland published monthly on the Scottish Police Services Authority (SPSA) website. Therefore we can see that in May 2008 there were 3,548 individuals who had a requirement to register with their local force following a conviction for some sort of sexual offence.

There is a caveat. The figures are supplied to the SPSA by the Scottish Court Service. The responsibility for actually turning up at the local police station remains with offenders on release from prison, or on leaving court if they have been given a non-custodial sentence.

The police will require name, date of birth and home address at the time of conviction as well as current name, including any aliases and current main or sole residence in the UK. The police will also take a photograph and may take fingerprints and DNA swabs. Anyone on the register should also advise police if they intend to be absent from their home address for more than 14 days in any year.

The offender has to register within three days. Failure to do so is a further criminal offence with a maximum sentence of five years' imprisonment. It is estimated that there is 97 per cent compliance, though there are no accessible figures for prosecutions for failure to register.

The register was created by the UK-wide Sex Offender Act in 1997 and its requirements have been extended and updated regularly since, most significantly, the Sexual Offences Act 2003.

The debates of the time concentrated on the protection of children from paedophiles and on the need to control violent offenders after conviction for rape or sexual assault.

However, a significant proportion of convictions are for offences at the other end of the spectrum – where they may seem more bizarre than dangerous.

The case of an Ayr man discovered in his hotel room engaged in some sort of sexual act with his bicycle attracted widespread coverage last year. He was discovered by two cleaners who entered his room with their master key. They told the hotel manager and he called the police, who charged the man with breach of the peace.

The response from the public when the story popped up on the evening news may have been incredulity. But solicitor advocate John Scott says there were legal issues, too. "In general, it has been accepted for some considerable time that the activities of adults in private are no concern of the criminal law. In this case, however, the accused pleaded guilty to the breach of the peace so the matter of his right to privacy could not be presented to the sheriff in the case."

The sheriff accepted the prosecution argument that under the Sexual Offences Act 2003 there was a significant sexual aspect to the offender's behaviour, and sentenced him to three years' probation with a requirement to register as a sex offender for the same period.

"That is one of my concerns," says Scott. "The sheriff's discretion is being eroded because the requirement to register is administratively triggered by the conviction under the Act. The sheriff has no choice."

Scott also has a continuing concern about the criminalisation of teenagers under the age of 16 who have a consensual sexual relationship. "The proposed Sexual Offences Bill in Holyrood retains as a crime a 15-year-old boy having a sexual relationship with his 15-year-old girlfriend. The government says prosecutions will be few, but they would also trigger time on the register."

Advocate Lewis Kennedy has concerns about the effect on the public perception of the register when apparently trivial matters are treated with the same gravity as the most serious offences. "I know of a case where an 18-year-old male was caught 'mooning' at some friends in the street. However, unknown to him, there was an eight-year-old child in the vicinity, which brought it within the terms of the Act. He is now on the Sex Offenders Register."

There has been at least one successful appeal against the requirement to register as a sex offender. Lord Johnston and temporary judge Gordon Nicholson QC ruled last year that there had been no sexual element involved when a drunk offshore worker dropped his trousers and pants in the street.

However, Lewis Kennedy is concerned that the ever-rising number of names on the register will compete with police resources. "The real worries are the committed paedophiles who try to stay below the police radar by moving about and failing to register changes of address. The reality for most offenders on the register is that once they sign on, that is it. If they are on the register as sex offenders the public is entitled to think they are being treated in some way. But when they are 'risk assessed' if the conclusion is that they are low or no risk then why are they on the register?"

The Association of Chief Police Officers in Scotland declined to comment on the impact of low-risk offenders on other areas of police work. However, an officer with responsibility for administering the register in his force said: "I do wish the legislators would sometimes stop and think before they bolt on more added extras to the criminal law. It puts us in a Catch-22. If we follow up every failure to comply with registration it's a waste of time and resources. But if we don't it brings the police and the law into disrepute. Really the main value of the register isn't to know where everyone is on any given day, but as an intelligence resource if a serious offence has been committed."

While that Catch-22 remains unresolved the numbers on the Register will continue to rise for some years yet. Because of the number of years an offender's name stays on the register – a minimum of five years, and ten years for anyone sentenced to more than 30 months imprisonment – there will continue to be more additions to the list than spent registrations falling off it.