Article 8 of the European convention on human rights protects an individual’s right to respect for his or her private and family life, home and correspondence. It is clear that the scope of the article is very wide and that the restrictions that would be put in place under SHPOs and SROs would interfere with that right. The question is whether the balance between the rights of victims and the wider public and the rights of the individual who is subject to the order is correct.
Interferences with article 8 by such orders are acceptable in certain circumstances: where they are
“in accordance with the law”
in pursuit of a legitimate aim, and are
“necessary in a democratic society”.
One such legitimate aim is the protection of the rights and freedoms of others.
It is also worth noting that not only are states under a duty to avoid perpetrating abuses of human rights themselves, but they have a positive obligation to protect their citizens from harm from other private citizens.
Whether something is
“necessary in a democratic society”
is really a question of proportionality. That means that where a measure interferes with a right it must go no further than is necessary. An important aspect of that is whether less intrusive measures should be used if they would achieve the same aim.
Here, the real issue in terms of compliance with human rights law is how the orders are imposed in practice. In each case, the proportionality of imposing such an order would have to be assessed. To that end, it is helpful to remember that, under the Human Rights Act 1998, it is unlawful for public authorities, including the courts, to act in a way that is not compliant with convention rights. There is therefore a safeguard, in that the orders would be imposed by a court, and a sheriff considering whether to impose an order would be bound to consider convention rights and to act proportionately. There is nothing in human rights law that prevents the orders, and compliance with human rights law would be determined on a case-by-case basis, looking at the individual facts and circumstances of each case. It is a question of proportionality in each case.
One concern that we have is that the bill is currently silent on a person’s right to make representations to the court before a sexual risk order is made. Article 6 guarantees the right to a fair trial and a public hearing, and unless there are exceptional circumstances the right to a public hearing under article 6 would generally include the right to an oral hearing. We have to remember that the civil orders have the potential to have a significant impact on a person’s freedoms—perhaps rightly so. The Scottish Human Rights Commission is of the view that, before such orders are made, a person should be entitled to be heard before a court and that that should be reflected in the bill.