Clause 95 - Notification orders: applications and grounds

Sexual Offences Bill [Lords] – in a Public Bill Committee am 12:45 pm ar 14 Hydref 2003.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs) 12:45, 14 Hydref 2003

I beg to move amendment No. 253, in

clause 95, page 49, line 7, leave out 'must' and insert 'may'.

This is a probing amendment, but it has a logical argument to it that relates to clauses 95 to 98. Taken together, those clauses contain an extension of the sex offenders obligation to those convicted of sex offences abroad. Under clause 95, a chief police officer may make an application to a magistrates court where it appears to him that a person was convicted abroad of an offence that would constitute a domestic sex offence as listed in schedule 3. A range of conditions are set out, and I understand those, but the concern is that while a complex judgment is being made on the nature of criminal law in another country—we are talking about a range of countries with very different criminal justice systems—clause 98 allows the individual concerned to be subject to an interim order.

Photo of Roger Gale Roger Gale Ceidwadwyr, North Thanet

Order. The Solicitor-General cannot hold discussions with civil servants while a debate is taking place.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

Thank you, Mr. Gale. While an investigation is going on, an interim order can be applied.

I ought to make it clear that the amendment was proposed by Liberty. Where all the conditions are met, clause 95(5) provides that the court must make a

notification order. Therefore, there is police discretion at the beginning of the clause, but no judicial discretion at the end of the clause. Hence, we have tabled this—on the face of it—simple amendment that would remove ''must'' and replace it with ''may''. At no stage, during all the conditions and steps that must be gone through, are there any comments on the system of law in particular countries leading to tests before an order might be applied. I would like to hear the Minister's comments on the amendment.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I hope that my explanation in relation to the amendment will be as comprehensive as possible. The notification order is intended to be made against offenders who have been convicted overseas for a sex offence that, if committed in the UK, would have constituted an offence under schedule 3. It is important for public protection that all convicted sex offenders in the UK are subject to the notification requirements.

The hon. Lady referred to the powers of the chief officer of police. A chief officer of police may apply to a court for a notification order against a person in a number of circumstances: where that person has been convicted or cautioned of an offence abroad; where the offence abroad would have constituted a schedule 3 offence had it been committed in any part of the United Kingdom; where the conviction, caution or relevant finding was made on or after 1 September 1997; where the conviction was before 1 September 1997 but on that date the offender was waiting to be sentenced or was serving his sentence; and, finally, where the conviction had been received in the United Kingdom, and the notification period for that offence and associated disposal would not have expired. Currently, where the court is satisfied that these conditions are met, it must grant a notification order. Under amendment No. 253, even where these conditions are met, the court would have discretion on whether an order should be made. I cannot support it.

We return to the familiar territory of earlier discussions about whether the notification requirements and registration are part of the penalty—the view the hon. Lady keeps pushing us towards—or whether that they are part of the administrative arrangements, which is actually the case. The notification requirements are, for offenders convicted in the United Kingdom, an automatic requirement arising from a conviction, caution and so forth for a sexual offence. The court has no discretion on whether an offender should be placed on the register. The Government have long argued that that is correct in order to ensure that the register remains a public protection procedure, and does not become confused with a penalty or a punishment for a sexual offence.

I fail to appreciate why, when a court is satisfied that an offender has received a conviction for a sexual offence abroad and that he meets the other conditions necessary for a notification order, the court should have the option of not granting an order. If the notification requirements are an automatic requirement following conviction for a relevant offence in the United Kingdom, why should it not be the case where the courts are satisfied that an offender

has been convicted for sexual offences abroad? We are also concerned that, if we allow courts to have discretion over which overseas offenders should be subject to the notification requirements, the position of the register as a public protection requirement and not a punishment or penalty handed down by the court will be undermined.

It may be that the amendments reflect concerns about convictions abroad being made under judicial systems that are less just or independent than our own: the hon. Member for Mid-Dorset and North Poole alluded to that. Amendment No. 253 is intended to allow the court to refuse to make a notification order because it is concerned that a conviction or sentence received abroad was unjust. However, the offence committed abroad must equate to an offence in schedule 3. If that is disputed, the court may permit the defendant to require the police to prove that that is the case. That means that activity that may be a sexual offence abroad but which in the United Kingdom is not considered to be illegal—such as adult male homosexual activity, which remains an offence in some states—cannot lead to a notification order.

A notification order can only be made following an application from the police. Where the police do not believe that the conviction for an offence overseas would have constituted a schedule 3 offence if it had been committed in the United Kingdom, they would not proceed with an application for a notification order: the police must be convinced of the appropriateness of that.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

There is a point that I was going to make on clause stand part, but it can be more neatly addressed here. What is the position in relation to a foreign caution? Does the foreign caution have to comply with an English caution, in that it requires an admission by the person that he has committed the offence, or would it be possible for a person to be placed on the register after having received a foreign caution, which may be no more than a warning by the police in a foreign country against a particular type of alleged behaviour?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I am not an expert on the nature of cautions in the different judicial systems that operate throughout the world. Cautions may be different. I simply emphasise to the hon. Gentleman that it is not the caution but the offence that is of the greatest importance.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

That is not right. Clause 95(2) says:

''The first condition is that under the law in force in a country outside the United Kingdom . . . he has been cautioned in respect of a relevant offence.''

I know how a caution works in England and Wales, but I have a concern, which I can develop during the clause stand part debate, that it is possible for someone to be cautioned abroad for an offence without admitting to committing it.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I will have to get back to the hon. Gentleman on the operation of cautions in other jurisdictions. They may operate differently, and if that is so, I will be happy to confirm that.

I conclude my contribution and hope that the hon. Member for Mid-Dorset and North Poole will withdraw her amendment.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I will withdraw my amendment, although some useful points have been raised. My concern was about the differences between different judicial systems, and I thank the Minister for his response. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

At the risk of re-opening the issue, I believe that a few further points need to be made having heard the Minister's response.

We may have anxieties about a system in which foreign convictions lead automatically to registration, as we may be concerned about the standard and burden of proof and the conduct of proceedings in those jurisdictions. On balance, I can see the force of having such registration, but I have serious reservations about the use of the word ''caution''. That word has a precise meaning in our legal and criminal terminology, but I believe that in many foreign countries, cautions or warnings are given by the police without requiring any admission of culpability by the recipient.

Clause 95 provides that cautions can immediately lead to notification and registration, which will lead to huge problems. Apart from anything else, a case would surely be brought immediately under the Human Rights Act 1998. Therefore, amplifying my remarks in my earlier intervention, I urge the Minister to give careful thought to the point. It must be made clear that the term ''caution'' in this context is defined as we would understand it in the United Kingdom, not as it might be understood in a foreign jurisdiction.

Photo of Roger Gale Roger Gale Ceidwadwyr, North Thanet

Order. I gently rebuked the hon. and learned Member for Redcar for reopening a debate, and I am afraid that I will have to do the same again to the hon. Member for Beaconsfield. Either we play by the rules or we do not. As a Chairman, I try to build flexibility into our discussions, but that must be on the understanding that we do not repeat debates. I will allow the Minister to reply, but I ask hon. Members not to reopen debates, as it merely prolongs proceedings and prevents us from debating other issues.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

Your flexibility, Mr. Gale, not only this morning but throughout this Committee's deliberations, is greatly appreciated.

I do not know whether the hon. Member for Beaconsfield asked his question out of knowledge or speculation. Given his background and usual approach, I suspect that it is out of some knowledge. As I have already promised, I will examine the matter and get back to him on it.

Question put and agreed to.

Clause 95 ordered to stand part of the Bill.

Clauses 96 to 102 ordered to stand part of the Bill.