Clause 81 - Persons becoming subject to notification requirements

Sexual Offences Bill [Lords] – in a Public Bill Committee am 10:30 am ar 14 Hydref 2003.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Mr Hilton Dawson Mr Hilton Dawson Llafur, Lancaster and Wyre 10:30, 14 Hydref 2003

I beg to move amendment No. 127, in

clause 81, page 38, line 20, after 'A person', insert 'aged 18 or over'.

Photo of Roger Gale Roger Gale Ceidwadwyr, North Thanet

With this it will be convenient to discuss the following:

Amendment No. 128, in

clause 82, page 38, line 39, at end add 'unless on the relevant date he was under 18; in which case he shall for all purposes be treated as at no time having been subject to the notification requirements of Part 1 of the Sexual Offenders Act 1997'.

Photo of Mr Hilton Dawson Mr Hilton Dawson Llafur, Lancaster and Wyre

It is a pleasure to be back. It is a feature of a Committee when, after a break for the various delights of the conference season, we return to find that the fine amendment that had been crafted has had its legs taken from under it by the huge range of other amendments that the Under-Secretary has tabled to schedule 3.

I am left in the position of arguing that young people under 18 who are convicted of rape, assault by penetration or administering a substance with intent, or of offences against a person with a mental disorder and causing sexual activity without consent, and young people who have been convicted of other sexual offences and sentenced to 12 months detention should not go on to the sex offenders register. I am not comfortable with that, partly because I am not entirely sure that that is what I want to argue and also because I accept that some young people can constitute a danger to others. Sexual offending against children and young people by children and young people is a serious problem. There may well be a good reason for some young people to be included in the sex offenders register.

I tabled the amendment in the spirit of concern that exists about the wide-ranging nature of clause 14. I would be grateful if the Under-Secretary told me how many young people, who would not have been

previously required to be registered, will be affected by the requirement.

I personally think that subjecting a child to registration and the requirements of the Sex Offenders Act 1997 is at least potentially stigmatising and could fatally undermine future efforts to rehabilitate that child. On the other hand, I can conceive of circumstances in which registration could be part of a community treatment programme designed to address extremely serious offending behaviour. Not for the first time during discussion of the Bill, I am moved to point out the inadequacies of the criminal law—even of this excellent piece of criminal law—in relation to the treatment needs of children who abuse other children.

If, given the amendments to schedule 3 there is still a case for the registration of some children as sex offenders, I would be grateful if my hon. Friend were to justify that, not only in terms of the important assistance that that can give to the supervision and management of risk, but with regard to the support and treatment of young people who clearly require help—whether or not that is in the community, or in health or care settings. The Government are beholden to justify why any child or young person should be subjected to registration. It is also important to be clear about the ways that their amendments to schedule 3 have improved that situation: they have restricted the numbers of children and young people who might be subject to that.

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

It is very nice to be back.

I want to follow on from the previous presentation, which was so clear that most of my notes have been rendered unnecessary. That makes things a little difficult. I am glad that this has been a listening Government: they have listened to the points raised in the House of Lords and on the Floor of the Commons, and the amendments that are coming forth are very welcome.

However, I have a couple of queries. It is difficult to make a judgment about such serious crimes when we are sitting in a Committee Room. That emphasises one of my concerns, which I pick up on in a later amendment. I am troubled by the mechanistic approach with regard to matters such as the time that will be spent on the sexual offenders register. It is important to have a case-by-case approach. I am also uncomfortable with the link between treatment and registration. Because of the Government's amendments, that has become even more important. Are we saying that those convicted of the lesser offences will not automatically receive treatment? We have opened something up, and I want to open it up further by breaking the link between registration and treatment, and by making it clear that any young person, at whatever level of caution or conviction, is referred for treatment. I want to use what we have positively. I look forward to hearing the Minister's response.

Many of these young people are likely to have suffered abuse themselves: that is statistically proven. Treatment must be a part of what we are talking

about. Registration is about the risk to the community, and assessments of risk must be conducted on a case-by-case basis. Those two things must be separated, and there must be different approaches.

Photo of Julie Morgan Julie Morgan Llafur, Gogledd Caerdydd

I, too, am pleased with the amendments to schedule 3 that have been tabled. The hon. Lady said that this is a listening Government: those amendments show that they have been listening, and I welcome them.

However, I still want to put on the record my concern about children being placed on the register in the same way as are adults. As the hon. Lady said, many of these children have been victims of abuse themselves. It is essential that young people go on the register only in the most extreme circumstances: to be on it could blight their life because of its implications for schooling and jobs. There are also other opportunities that they may not be able to take advantage of if they are on the register, because being on it will be stigmatising for them. I am pleased with the amendments, but I still have concerns about the remaining groups of children who could be on the register, and want to consider the implications for their lives. We must remember that they are children too, and may also have been victims.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

I was intending to reserve my main comments for the amendments to schedule 3, but as the amendment moved by the hon. Member for Lancaster and Wyre has triggered general discussion, I would not want the matter to pass without placing on the record my welcome for the approach that the Government appear to be taking. Of course, I am mindful of the hon. Lady's comments—

Photo of Roger Gale Roger Gale Ceidwadwyr, North Thanet

Order. I am sorry to interrupt the hon. Gentleman so early on, but I am slightly concerned that we might be moving on to schedule 3. I am fairly relaxed about how the Committee debates subjects, as long as it debates them only once. When I said—reasonably flexibly, I thought—that I was prepared to allow a stand part debate at either the beginning or the end of clause 81, I meant a debate on clause 81. If we get into a more wide-ranging debate, hon. Members will need to take that fact into account, because it will colour my judgment on debate on schedule 3.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

I am grateful to you, Mr. Gale. Clearly, amendment No. 127, tabled by the hon. Member for Lancaster and Wyre, triggers an entire discussion of the position of those under 18; that is what he intended it to do. The detail of the matter will, of course, be followed up in what will be discussed under schedule 3. All that I wanted to say at this stage was that I accept that there is a difficult balancing exercise between the desire not to stigmatise but to provide help—we know that young people who commit offences are far more amenable to responding to treatment than those who are older—and providing public protection against activities that can be extremely predatory, often towards younger children. That is a difficult issue for the Committee's consideration. I will reserve my more

detailed comments for the Under-Secretary's extremely interesting amendments.

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

I apologise to my hon. Friend the Member for Lancaster and Wyre for moving the goalposts during the recess, although as he and other Committee members acknowledged, they have been moved in a positive way that meets with the Committee's agreement. We have discussed the matter before in Committee, and are all agreed that young people who sexually offend present special problems, and the way that they are treated needs to take that into account.

My hon. Friend asks in what circumstances it would be right for a young person to be placed on the register. Only last April, a 15-year-old boy was convicted of raping a 25-year-old woman when he was 14. The judge, when sentencing him to seven years in custody and four on extended licence, stated that he regarded the offender as a ''dangerous young man''. Clearly, there are young people who pose that level of threat, and who need to be caught within the notification requirements.

In essence, taking into account amendments that we shall move later, and which I do not wish to discuss now, the assurance that my hon. Friend and others seek is that for a young person to be caught by the notification requirements, the offence must be so serious that it warrants a 12-month custodial sentence; or, even if there is another disposal—a community disposal or a caution—the offence must be very serious. It is also important to note that young people who become subject to the notification requirements have a notification period half that of an adult who commits a similar offence.

I hear the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) call for a more individualised system. We shall discuss that later, but I wanted to say now that notification is not part of the sentence; it is an administrative process that aids the system of public protection. It is important to make that distinction. We in Committee must guard against taking steps that would make the notification requirements part of the sentence.

Both the hon. Lady and my hon. Friend the Member for Lancaster and Wyre mentioned treatment. Clearly, we all recognise that however heinous a crime a young person commits, a serious sexual offence will need appropriate treatment. Registration will mean that young offenders come under the multi-agency public protection arrangements. Under those arrangements all agencies, including social services, are involved in the management of young offenders. I hope that that offers hon. Members some assurance that we take seriously the public protection issue and the individual needs of such offenders.

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

Will the hon. Gentleman clarify whether—in light of the laudable amendments to come—there will automatically be a multi-agency approach towards the young people who are not put on the sex offenders register?

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

I understand that they would not automatically come under the remit of the multi-agency public protection arrangements. Clearly, those arrangements would apply to anyone who was on the register, but not necessarily to those who were not. The risk assessment that is made on individuals depends on individual circumstances. I can confirm that where there is a requirement to register, such individuals would come under the remit of the MAPPA.

Photo of Mr Hilton Dawson Mr Hilton Dawson Llafur, Lancaster and Wyre

I am grateful to my hon. Friend for that explanation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Humfrey Malins Humfrey Malins Ceidwadwyr, Woking 10:45, 14 Hydref 2003

I beg to move amendment No. 241, in

clause 81, page 38, line 22, at end insert

'but not given an absolute discharge'.

Photo of Roger Gale Roger Gale Ceidwadwyr, North Thanet

With this it will be convenient to discuss the following:

Amendment No. 243, in

clause 82, page 38, line 34, at end insert

'but not given an absolute discharge'.

Photo of Humfrey Malins Humfrey Malins Ceidwadwyr, Woking

Although this is a probing amendment, I hope that the Government will take on board the central theme that is common to it and amendment No. 243.

I think that we all accept that a requirement to notify and be part of the sex offenders register is quite burdensome, involving a period of time and duties; so it should be. We also accept that there is a vast difference between terribly minor offences and serious offences. Hence my amendment, which would insert the words

''but not given an absolute discharge''

in clause 81. That would exempt for the purposes of notification a person who was given an absolute discharge.

From time to time, in courts throughout the country, there is somebody who is technically guilty of an offence, but such is the overwhelming mitigation that the court feels bound, in effect, to impose no penalty. The difference between a conditional discharge and an absolute discharge is this: if one is conditionally discharged for six months, for example, one is subject to a condition not to offend within that period; if one does offend, the first and second offences are dealt with at a subsequent hearing. In contrast, an absolute discharge may occur when a court feels that the offence is perhaps so trivial and the mitigation is so overpowering, that it is unnecessary to impose any punishment on the offender. Such an offender would leave court with a conviction, but without any form of penalty. It strikes me that under the Bill as currently drafted, a person who was given an absolute discharge would nevertheless be subject to the notification requirements. I wonder whether the Government think that that is right—perhaps some concession could be made.

Like some of my colleagues, I know very little about the register of sex offenders. Perhaps the Under-Secretary will, at a later stage in our deliberations, answer some specific questions. For example, I do not know where or in what form the register is kept, nor what the annual costs of keeping the register are. I do not know how many people are on it, how many staff work part-time on the register, or what the annual salary costs are. Nor do I know much about the follow-up procedure on registering in terms of the commitments of the person being registered or the duties of the persons keeping the register. It might be helpful to know a little more about that.

However, I am particularly concerned about those who receive an absolute discharge, hence the amendment, the purpose of which is to ask whether it is essential that such persons find themselves subject to the notification requirements.

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

I thank the hon. Gentleman for raising some interesting questions. He will forgive me if I do not respond to them immediately; the answers are interesting and I am sure that the Committee will be interested to hear them later.

The hon. Gentleman argues powerfully, but I hope that he will be reassured when I tell him that the amendment is not necessary. The Bill will not require somebody with an absolute discharge to be on the register. Under current law, a conviction for an offence for which the offender receives an absolute or conditional discharge does not lead to notification. We have reflected on that and we believe that in certain circumstances, where a conditional discharge is given for a serious offence, the offender should comply with the notification requirements—but only for the duration of the conditional discharge. An absolute discharge will continue not to be considered a conviction for the purpose of triggering the notification requirements. I hope that that reassures the hon. Gentleman and that he will withdraw the amendment.

Photo of Humfrey Malins Humfrey Malins Ceidwadwyr, Woking

I am utterly reassured and I thank the Minister for his helpful response. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

I beg to move amendment No. 242, in

clause 81, page 38, line 26, leave out paragraph (d).

Photo of Roger Gale Roger Gale Ceidwadwyr, North Thanet

With this it will be convenient to discuss the following:

Amendment No. 244, in

clause 82, page 38, line 38, leave out paragraph (d).

Amendment No. 248, in

clause 83, page 40, line 27, leave out '2 years' and insert '1 year'.

Amendment No. 377, in

clause 95, page 48, line 32, leave out paragraph (d).

Amendment No. 378, in

clause 104, page 53, line 33, leave out paragraph (d).

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

The amendment deals with cautions, which are another issue relating to adults, although it could also cover others. There is a growing ''caution culture'' in the way in which we deal with offences. In

more and more cases, the police, perfectly properly, are taking the administrative decision not to prosecute a person in return for an admission of guilt; a caution is then given. The Bill would make cautions notifiable and registrable. The notification period provided under clause 83 would be two years, beginning with the date of the caution.

The first thing that struck me when I looked at the provision was the contrast with the notification period in relation to a conditional discharge, which is the period of the conditional discharge. Conditional discharge periods can be as short as 12 months. We therefore face a potentially bizarre situation, in which a person is picked up for an offence and admits it, the police decide that the matter is so trivial that no legal process need be initiated, and the person accepts a caution, yet that person could be on the register longer than a person who was prosecuted and was given a conditional discharge by the court. That discharge would mean that nothing would happen provided that the individual did not commit a further offence within the 12-month or two-year period imposed. That seems illogical

The purpose of the amendment is to probe whether cautions should trigger registration and notification at all; and, if they do trigger registration and notification, to ask for what period that should apply. Should it be two years, as provided for under clause 83, or should it only be 12 months, which is the proposal that I put forward for the Committee's consideration?

We must be reasonable. On the face of it, most people regard a sex offence as a serious matter. If the police decide that the matter is so trivial that it can be resolved by a caution, it must follow that they consider that it is of little importance and that that person's activities do not pose a risk to the public, which raises a powerful argument that registration and notification might not be required. For example, certain acts and antisocial behaviour might be considered improper—let us suppose that a drunken person in a restaurant pinches the waitress's bottom. He might not have any previous convictions and be of good character, as a result of which there is no suggestion that he is a deviant. Such behaviour might come within the category of a caution. However, if such behaviour is considered so serious that it should be subject to a prosecution for indecent assault, what type of case will come within the category of being subject only to a caution?

The Committee really needs to consider such matters. We must face up to the fact that although, as the Minister said, such a procedure may be only administrative, it is onerous and potentially humiliating. A person who is subject to registration and notification might have to attend a police station at a time that is inconvenient to him because he is busy. He has to face the humiliating process of saying over the counter at the police station, probably with many other people queuing behind him, that he has come to register as a sex offender because he has changed his address and so on. Such matters may be important for the sake of public protection, but, when

passing the legislation, I do not believe that it is Parliament's intention that people should be subjected to an humiliating punishment because we think, ''Serves you right.''

The registration procedure should exist for public protection, not to entertain members of the public at the police station. Anyone who, having been stopped for a peculiar arbitrary reason by the police, has visited a police station under the HORT1 procedure and been required to produce his driving licence knows that it is a time-consuming and irritating exercise. We must bear in mind that we should not place burdens on people without good cause.

I consider that sex offences are serious matters, including those of pinching a waitress's bottom. I put two questions to the Committee: if the offence is so trivial that the police decide that a caution is good enough punishment, why are we requiring registration? Secondly, if we decide that there should be registration, is there not something slightly odd about providing that registration under a caution will be for a longer period than a registration under a conditional discharge when the court has decided that some supervision should follow up on the conviction even though no punishment was imposed? The Committee must consider the illogicality in that.

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

I thank the hon. Gentleman for his helpful, probing amendment, which has enabled us to pick up on a discussion that we left in the air when debating clause 68. When we discussed that clause, we considered the point that a naturist, for example, might, in trying to get out of a difficult situation, accept a caution if allegations were being made. It was felt that such matters would become completely out of proportion because of the register. I referred to that problem at the time and the Minister responded to it. However, I still thought that such a situation was not quite right. I was not brave enough to suggest a deletion of cautions because I could envisage some examples when it would be appropriate for such matters to be on the sexual offences register. I sound wishy-washy, but it seems that such matters need to be considered more on a case-by-case basis.

There needs to be some sensible discretion at least, otherwise the examples that have been quoted could lead to injustice. The procedure is very mechanistic: there is a caution, then straight on to the register without the individual case being considered. People would be horrified to learn of the many cases in which somebody could be pushed into an humiliating and damaging situation even if they were innocent and had simply accepted a caution rather than challenging it.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office 11:00, 14 Hydref 2003

There has been an interesting discussion on the amendments. It is important to say at the outset that the fact that someone has been given a caution does not mean that the offence for which they were given that caution is not a serious offence. The hon. Member for Beaconsfield (Mr. Grieve) asked me in what circumstances that might be the case. For example, sexual abuses might have taken place within the family and the victim, for understandable reasons, is unwilling to testify against the offender; taking such

a case to court where the victim must give evidence might be felt to be far too traumatic. In such circumstances it may be felt that, on balance, although the offence was serious a caution is the fairest and more just outcome.

Cautions are, of course, given by the police for less serious sexual offences, but they lead to registration only where offences involve children. In the case raised by that the hon. Member for Mid-Dorset and North Poole, and in the case raised by the hon. Member for Beaconsfield of pinching a waitress's bottom, I hope that they understand that if the charge is a less serious one and does not involve children it will not lead to automatic registration.

At the beginning, the hon. Member for Beaconsfield raised a point about the caution culture. We will want to consider that in terms of how we follow through this legislation. The form that the police issue when they give a caution makes it clear that the caution brings with it an automatic requirement to register. We shall examine such matters further when we consider the Bill's implementation, and decide whether we should issue explicit guidance to the police on the need to make the consequences of accepting a caution in terms of registration absolutely clear, verbally and in writing.

Amendment No. 248 would reduce the notification period following a caution from two years to one year. As I hope that I have explained, cautions may generally be viewed, but should not always be viewed, as something at the lower end of the scale. There has been some debate about that. The review of the Sex Offenders Act 1997 concluded that the notification period should be reduced to 12 months. We received strong representations from other organisations, including the police, that 12 months was far too short. On balance, we believe that two years is right.

Finally, amendments Nos. 377 and 378 would remove the possibility of a notification order or a sexual offences prevention order being made against an offender who had received a caution for sexual offences overseas. We see no reason for differentiating between someone cautioned for an offence overseas and someone cautioned for an offence in this country; they are of equal significance and require the same response.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

I am grateful to the Under-Secretary. He has persuaded me that cautions should be included in the category for the reasons that he has given. However, I still have an anxiety about the period. There is an oddity in the juxtaposition of that and what happens in the case of conditional discharge.

The Under-Secretary suggested that cautions are sometimes imposed for serious offences. I was appalled to hear the example that he gave. I suppose that some people may accept cautions in the circumstances that he suggested, but, if someone who had been properly advised was told that a serious allegation was being made against him on no evidence, I would be surprised if he accepted the caution. In the case of sex abuse within the family, I can see that there might be circumstances in which it could be decided that it would be so traumatic to the child concerned

that prosecution would be inadvisable. However, that struck me as a surprising example. I would wish people to be prosecuted in those circumstances.

Photo of Humfrey Malins Humfrey Malins Ceidwadwyr, Woking

My hon. Friend is on to a good point: I, too, was surprised that the Under-Secretary gave that example. If—in a family situation, for instance—a victim was unwilling to substantiate an allegation, 99 times out of 100 the Crown would offer no evidence, and any potential defendant who was advised on the matter would sit and wait until the decision was taken, rather than accept a caution.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

My hon. Friend is right. I do not want to stray too far from the point, but this is an interesting subject, and we might have to look at a later stage at the way that cautions are being used in England and Wales.

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

To clarify, I was not suggesting that in all circumstances that would be the appropriate outcome. I was simply pointing out that that might be a circumstance in which a caution would be a justifiable way of dealing with a perpetrator of such serious offences, bearing in mind the vulnerability of the witness and the trauma of having to go through court proceedings.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

I appreciate what the hon. Gentleman is saying. If that is the argument, it could also be argued that a registration period of two years is insufficient. To impose cautions where there is no evidence against someone but he is prepared to accept that he committed a serious offence is a strange thing to do, but if that is becoming common practice in England and Wales there might be a strong argument that he should be registered for much longer. There is a degree of tokenism about the two-year period if someone who poses a serious public threat will be off the register after two years. I thought that cautioning would be imposed in cases that the police considered not to require prosecution.

Photo of Vera Baird Vera Baird Llafur, Redcar

I wonder whether it is likely that a caution will be used if there is no evidence. Is it not more likely to be used where there is evidence, such as semen deposits? If there is such evidence but the prosecution are not confident that they will be carried over the 51 per cent. barrier without the child—and if they are unsure how the child will hold up—a caution might be a reasonable outcome.

However, I share the hon. Gentleman's concern that a nudist who accepts a caution because it is easier to take it than to be prosecuted, with all the disapproval and publicity that that might produce, will get exactly the same registration on the sex offences register as a person who appears to have committed very serious offences but is not prosecuted because the witness is not up to supporting their prosecution. That is an odd approach, given that the rest of the schedule is linked to sentences, and therefore to gravity.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

The hon. and learned Lady is right that that must be the example of circumstances where a caution would be resorted to by the police—when they are anxious at least to register something in relation to a defendant, but they are not confident that a case would hold up in court. That is the only set of

circumstances in which I can foresee the police properly allowing a caution for what might be a serious offence. The hon. and learned Lady is also right that this is an odd situation, because we will end up with trivial matters being visited with a period of registration in excess of that for conditional discharges.

I accept that this is a difficult issue but I should be grateful if the Under-Secretary would think it through a little further. Is there really a much greater benefit in registering someone for two years than for 12 months? They would be off the register fairly quickly anyway.

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

The hon. Gentleman makes a request that has been backed up by my hon. and learned Friend the Member for Redcar (Vera Baird). I think of little other than the implications of the Sexual Offences Bill, so I am more than happy to reflect on the matter, and to come back to the hon. Gentleman with an answer in due course.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

I am grateful to the Under-Secretary. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 81 ordered to stand part of the Bill.