Nigro v Secretary to the Department of Justice (Court of Appeal) – Dec 2012

This case involved three separate appeals against supervision orders made by the County Court under the Serious Sex Offenders (Detention and Supervision) Act 2009. The Commission received a Charter notice in each appeal after the Court of Appeal identified that there was a question regarding the impact of the Charter on the interpretation of the test as to when a court can make a supervision order. The Act provides that a person can be subject to a supervision order if they represent an “unacceptable risk” to the community.

The Commission submitted that while the Charter does not affect the interpretation of the phrase “unacceptable risk”, it does affect the interpretation of the statutory discretion as to when a court may make a supervision order and the conditions the order imposes. Depending on the conditions imposed, an order could limit the rights to privacy, freedom of movement, liberty, freedom of association and freedom from medical treatment without consent. The Commission submitted that the discretion should be exercised compatibly with human rights so that a court only imposes conditions that are proportionate to the level and nature of the risk the person represents.

The Court of Appeal has not yet handed down its decision.