Thursday, 19 July 2012

Is the Attorney General right on sex offenders' register?

Attorney General of Bermuda has responded to public concerns about sex offenders by suggesting that, as Bermuda's laws are modelled on UK laws, it's impossible to have a public register.

It's true enough that a public register is contrary to the common law as, in the words of Justice Waite in ex parte M [1989] 2 All ER 359, it operates as a blacklist, and as such  has the dangerous potential as an instrument of injustice and oppression.

But the Attorney General is arguably wrong that this means that it is impossible for Bermuda to have a public register. As all who have studied law will know, it is perfectly legal for Parliament to override the common law and it does so every time it passes an Act of Parliament.

Bermuda is, of course, also signed up to the European Convention on Human Rights (ECHR), and the European Court might also have something to say about a public register in that it violates privacy, but the ECHR is nothing to do with English Common Law.

There are arguments for and against a public register but the relationship with the UK has nothing to do with it.

PS - as an aside it might be argued that the most immediate obstacle to a public register in Bermuda is Bermuda's home-grown Human Rights Act as passed by Bermuda's own members of parliament. Section 2(2)(a)(vii) prohibits discrimination on the basis of somebody's criminal record.

We have the bizarre situation in Bermuda where it is perfectly lawful to discriminate against gays and lesbians - but a no-no to discriminate against convicted sex offenders.

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