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Full-Court Press

carolina bracken, 2 September 2011

Over past weeks, both David Cameron and Nick Clegg have written candidly about the “misrepresentation of human rights”, with the Deputy PM in particular bemoaning how those in power have “belittled the relevance of rights at home”. Their ambitions to “get a grip” on this distortion are essential and to be welcomed, as the media and public bodies continue to pollute the rights discourse with inaccuracies, errors and fallacious propaganda.

CA SOPO

Take this recent example. In R v Smith & Others, three judges in the Court of Appeal considered whether the terms of Sexual Offences Prevention Orders (SOPO) for four separate men were necessary and proportionate. Each of the appellants had been sentenced for offences involving child pornography, though none had been charged with any offences of physical sexual contact. The court emphasised the need for such orders to be tightly drafted and, after detailed explanation, removed conditions that were “unnecessary and unrealistic on the facts of this case”.

The media response? “Judges weaken rules on paedophiles”, raged the Telegraph. “Rules on paedophiles seeing their children relaxed after judges decide their human rights are more important”, shrieked the Daily Mail.

According to the papers, the appellants had successfully relied on their human rights to “seriously weaken the ability of the courts to place restrictions on offenders”, with the court ruling that their “‘right to a family life’ must be taken into account before the…SOPOs are issued”. By siding with the paedophiles, the court had “torn up” powers to protect children and abolished the ability of judges to “impose blanket bans” on parents convicted of child sex offences from “spending time with their own children” or teens between 16 and 18.

These accounts are not merely brazenly subjective; they are simply untrue. The version presented by the media bears no relation to the actual judgement – it an invented, rather than exaggerated, demonisation of justice.

Turning to the first of the court’s alleged offences, the judgement is almost entirely silent on the issue of human rights, despite their prominence in the media articles. This is not a case about rights, but rather proportionality, necessity, and enforcement. The only time the right to family life does make a fleeting appearance in the case, it does not relate to the appellants’ rights at all; where “there is no sign of a risk that [the defendant] may abuse his own family”, the judges comment, “it is both unnecessary and an infringement of the children’s entitlement to family life” to prohibit all contact between the children and their parent. The court emphasised that where a risk does exist, “then those children may need protection”.

Nor there is any attempt to ‘tear up’ the court’s protective powers. The ruling explains, rather than reforms, the operation of the SOPO scheme. A SOPO can be necessary to prevent a real risk of serious sexual harm materialising, yet is not the only tool available to the court. Offenders may well be subject to notification rules, disqualifications from working with children, and licence conditions post release from custody.

The court also recognised the important complementary role of non-judicial professional bodies. With regards to one of the four appellants, Bryan Hall, the possibility of his new wife’s two young children moving into his home caused the court some concern. Yet the court acknowledged that it is for Social Services to determine whether the children would be safe residing with Hall, and that they are the agency best placed to assess this risk; if Social Services were so satisfied, “then it would be wrong for the terms of the SOPO to override that judgement”. This is about respecting relative competence, not diluting powers.

Judicial decisions need and deserve to be publicised; however, it is essential that they are relayed accurately. Erroneous reporting is not only misleading, but potentially ruinous for the level of public trust the justice system deserves. Nick Clegg was undoubtedly right in saying: “Court judgments themselves tend to tell a very different story about our rights culture than tabloid papers.”

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