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Should sex offenders have access to the internet?

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It’s seen as a human right

The internet has become an indispensable tool in today’s society. In fact, it’s so integral that according to a 2010 BBC study, four in five people in the world consider internet access to be a fundamental human right.

Although to some this may sound a bit extreme, the survey results seem to reflect the opinion of the majority of academics and commentators. Indeed, access to the web has become such a fundamental aspect of our lives that it has reared its head in human rights jurisprudence. According to the judgment in R v Smith, Article 8 of the European Convention on Human Rights (ECHR), the right to private and family life, home and correspondence, includes a right to access the internet.

But where internet use does seem to generate a considerable debate is when it comes to registered sex offenders and the restrictions they face after their release from prison. The Court of Appeal considered this issue in the above case, scrutinising the possibility of limiting access to computer use in light of the “explosion of everyday internet use by a very large proportion of the public” and concluded that a blanket ban on internet access is impermissible and could not in any circumstances be described as necessary — not even in cases of sex offenders.

“It is disproportionate because it restricts the defendant in the use of what is nowadays an essential part of everyday living for a large proportion of the public, as well as a requirement of much employment,” the judgment read.

Instead, what the courts favoured approach seems to be, as demonstrated in a series of recent cases, is the requirement of preservation of readable internet history coupled with submission to inspection on request. The restriction is reinforced with a partial ban where appropriate, prohibiting communicating via the internet with any young person known or believed to be under the age of 20, or even a total prohibition of the use social networking sites.

But questions still remain as to whether tailoring restrictions on a case-by-case basis is adequate to achieve both community protection and a deterrent effect on sex offenders without depriving them of their human rights. Certainly, the recent case of Jon Venables, who killed toddler James Bulger in 1993, seems to suggest that there is still room for improvement on the courts’ current formula. Venables was found to possess child abuse images and a “paedophile manual” — breaking his parole conditions twice in the past eight years.

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Nevertheless, it should be mentioned that not all aspects of the formula are to be condemned.

On the contrary, the validity of the decision to reject a blanket ban on internet access seems to be reinforced by the fact that a full ban would be impeding an offender from many lawful activities including access to social networks, messenger applications and emails and any other forms of online communications that facilitate social relationships. As a survey conducted by the American Psychological Association seems to suggest, it is important these social applications remain available to these individuals. Taking away one’s right to use these applications could have detrimental effects, as it would lead to feelings of marginalisation and social exclusion, which would increase the potential for re-offending and hinder rehabilitation.

Although the idea that sexual predators might be lurking online using social media may seem alarming to the wider public, especially since most youths nowadays are using the internet and social networking sites, the courts have been keen to adapt the restrictions in order to prevent potential online harm when necessary. It is noteworthy to mention that recently Judge Griffith-Jones decided, in a landmark case in Kent, that paedophiles could be banned from using Snapchat because the app deletes images. Sentencing convicted paedophile David King, the judge said:

“Communications will be routinely destroyed automatically, leaving no, or no significant, trace. It’s precisely the kind of application which offenders such as yourself, subject to restrictions, should conscientiously avoid.”

But is this enough to protect our children from potential abuse?

Maria Roche, a Doughty Street Chambers barrister, doubts the efficacy of the method currently adopted by the law, highlighting the ease by which one could evade the restrictions simply by using ‘private browsing’ facilities and having the recordable internet history turned on and off for short periods of time.

Commentators have also questioned the court’s rejection of the Hemsley formula, which was previously employed by the courts. This formula dictated for limited use of the internet, relating only to “job search, study, work, lawful recreation and purchases”. It is the breadth that is inherent to the wording of the phrase ‘lawful recreation’ that the courts fear. Alisdair Gillespie, a professor, has emphasised that because the “term is extremely wide” it could be construed as encompassing all lawful activities. As he illustrates, the formula’s intrinsic difficulty to set a limit would essentially mean that “the offender is only prohibited from undertaking illegal activities”, in which case the restriction would be redundant (as this is the providence of criminal law) and alternative means of monitoring would be more fitting.

One of the other common concerns is the potential capacity for further offending as long as the internet is available in the home, a private space for the offender to do as they please. What is even more alarming, is that those concerns are not only voiced by the wider community and the families of sex offenders but also by some offenders themselves, who branded access to the internet a “temptation”.

As a result, it’s now possible to install a remote, secure server on an offenders’ computer, which uses a catalogue of words, phrases and images associated with child pornography to identify any violations to the monitoring agency. A number of police authorities in the UK are employing it for improved risk management of registered sex offenders.

With US federal court circuits adopting the position that the use of monitoring software could offer such a strong protection that a blanket internet ban is no longer necessary, it is high time that our courts adopt a similar stance on the matter. It is of vital importance that all police and probation authorities across England and Wales adopt and put in use this monitoring software as soon as possible, for the safety and protection of the UK’s children.

Maro Polykarpou is a second-year law student at the University of Nottingham.

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39 Comments

Anonymous

*visibly perspires*

Anonymous

Maybe next time you should consider reading something like the daily mail.

Anonymous

The comment would’ve made more sense had Alex not soiled himself when he saw that an actual law firm was mentioned in the name of the commenter. Regular visitors to LC will know which firm it was.

Anonymous

???

Anonymous

This post has been removed because it breached Legal Cheek’s comments policy.

Anonymous

This post has been removed because it breached Legal Cheek’s comments policy.

Anonymous

I IZ INNOCENT!!!

Trumpenkrieg

So if, for example, somebody has a one night stand with a club skank who then retroactively revises consensual sex into regret rape, he should be banned from the internet, even though the internet had nothing to do with the so-called rape?

Corbyn. Symphathiser

Why would that be a concern for you and your fellow incels?

Anonymous

It is considered in a case by case basis. I would suggest reading SOA 2003.

Corbyn. Symphathiser

You assume our right wing friend has the capability to read anything not in the comments section of Breitbart or some other conspiracy theory wrag.

Scouser of Counsel

It’s not a human right.

Anyone over 30 can remember life without the internet.

We managed, somehow!

Anonymous

Agree, its a privilege not a right.

The same argument could be said for revoking a driving license?

The same argument could be said for custodial sentences?

Need we go on?

The Progressive

Anyone over 80 can remember the War.

Anyone over 60 can remember the death penalty.

Anyone over 50 can remember £sd

Anyone over 40 can remember caning in schools.

Anyone over 30 can remember blue passports (the first time round).

Anyone over 20 can remember VHS tapes and photographs that needed to be developed.

Anyone over 10 can remember smacking.

It doesn’t mean any of them should come back!

Trumpenkreig

I disagree.

I’d bring them all back!

Corbyn. Sympathiser

We know you’d like to bring back the Second World War. We also know what side you’d like to fight on.

Trumpenkreig

To quote you, bugger off.

Anonymous

Well played, Sir.

Trumpenkrieg

I wouldn’t be fighting on the side that 70 years later would be promoting chidlessness in women, transgenderism and homosexuality in children, effeminacy in men and flooding Europe with 3rd world savages, that much is certain.

Corbyn. Sympathiser

No need to dance around it. We all know you’re a Nazi. You’re not exactly putting the ‘b’ in ‘subtle’.

Trumpenkrieg

I wonder, if Germany had won, whether London would be under the control of a semi-literate Pakistani mayor and beset by an epidemic of immigrants’ children stabbing each other

Corbyn. Sympathiser

I’ve got no idea. That isn’t the case now, though, either, so I guess it’s a moot point.
Don’t you have an incel meeting to attend? Or are you all going by “MGTOW” now? Honestly it’s difficult to keep up with these childish fads.

Wilma

Smacking is fine. If you don’t physically remind a child their actions are wrong and they as a child do not have the mental capacity to realise their actions are wrong, how are they to learn?

Fred

I’m home!

I’m going bowling with Barney.

Here’s Betty to keep you company…

Not Amused

It’s all getting a bit minority report …

Anonymous

Where is the research? The Court of Appeal (Crim Div) has recently reconsidered Smith.

Anonymous

Smith was about internet access in general , It was the leading cases deciding it was a human right. In the 2018 revision internet remains a human right so I don’t see the point of your comment. We always use the original case when explaining a legal principle.

Anonymous

But why cite Smith when a more recent case has considered the law on restricting Internet use following technological advances post Smith. The increased use of the internet in our daily lives makes it even less likely that a sex offender can receive a blanket ban.

It rather makes this article pointless. In addition to not fully researched……..

Matter for you…..

Thegoodlawyer

Ehm the point of the article was to consider the current approach. The blanket ban is established as not acceptable. If you read it thoroughly you will get the point. It was scrutinising the case law and commenting critically on the blanket ban. It was a critique rather…

Anonymous

Its only mentioning Smith once. Why is it such a big deal to you? Haven’t you learned from school to get the gist of a text you read?!

Anonymous

The Court of Appeal have recently, in the past few months I believe, considered this very issue. And, rightly in my opinion, has concluded that in 2018, the individual simply cannot get by in every day life without access to the internet. Many many public services have transferred vital pieces of information, portals and services to internet-only based operations. It is simply impossible to perform the tasks and access the relevant information and services to get by in life without access to the internet.

It is plainly an unworkeable suggestion and plainly a breach of of the ECHR.

Corbyn. Symphathiser

This makes a lot of sense to me, thank you for this post!

Anonymous

That is all very well, but would you still say the same if said person was sending your daughter a webcam request?

Pompous Arse

Hmm. Depends on whether she’s over 18, surely?

Art Bowker

Good article!. You might check out Managing the Risk Posed by Offender Computer Use an Issue Paper by the American Probation Parole Association

https://www.appa-net.org/eweb/docs/APPA/stances/ip_MRPOCU.pdf

Thegoodlawyer

Very informative article!

Anonymous

Let sex offenders use the Internet as much as they want to – it saves the rest of us having to speak with them.

Scouser of Counsel

And makes it easier to catch them!

R Kelly

I have access to all.

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