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5th Report 2005 (Session 2)

The Protection of Children and Prevention of Sexual Offences (Scotland) Bill

Volume 1: Report

CONTENTS

Introduction and background
Evidence taken by the committee
General reaction to the Bill
Structure of report
Offence of meeting a child following certain preliminary contact
Existing offences
Alternative approaches
Construction of the offence - issues raised
Conclusion on section 1 offence
Risk of Sexual Harm Orders (RSHOs)
Need for RSHOs
Standard of proof
Interaction with the criminal law
Disclosure
Jurisdiction
Interim orders
Sex education – potential criminalisation
Role of the chief constable
Monitoring RSHOs
Human rights
Conclusion on RSHOs
Sexual Offences Prevention Orders (SOPOs)
Proposed Executive amendments
Policy Memorandum
Financial Memorandum
Delegated powers provisions
Conclusion of the report

The Committee reports to the Parliament as follows—

Introduction and background

1. The Scottish Executive’s Minister for Justice introduced the Protection of Children and Prevention of Sexual Offences (Scotland) Bill in the Parliament on 29 October 2004.

2. The Bill’s stated policy objective is to create a new offence of sexual grooming of a person under 16 by an adult aged 18 or over. The Bill would also create risk of sexual harm orders, which are designed to protect children from those who display inappropriate behaviour towards them, and enable further use of sexual offences prevention orders, so that they can be applied to those convicted of sex offences by the court when they are sentenced.

Evidence taken by the Committee

3. The Justice 1 Committee issued a call for written evidence on the Bill and received 32 responses. The Committee also heard oral evidence over four sessions from the Scottish Executive Bill team, The Crown Office and Procurator Fiscal Service (Crown Office or COPFS); Barnardo’s Scotland, James Chalmers, University of Aberdeen; the Association of Chief Police Officers in Scotland (ACPOS), the Association of Scottish Police Superintendents (ASPS), the Scottish Police Federation (SPF), the Law Society of Scotland (Law Society); and Dr Rachel O’Connell, University of Central Lancashire and Hugh Henry MSP, the Deputy Minister for Justice (“the Minister”).

4. The Committee also hosted a consultative seminar at Holyrood on Wednesday 19 January 2005 in order to seek the views of a wide range of organisations with an interest in child protection and criminal justice issues on the policy objectives and practical implications of the Bill. The following organisations participated in the seminar:

  • Association of Chief Police Officers in Scotland (ACPOS)

  • Association of Directors of Social Work

  • Association of Scottish Police Superintendents (ASPS)

  • Barnardo’s Scotland

  • Caledonia Youth

  • Childline Scotland

  • Children 1st

  • Children in Scotland

  • Commissioner for Children and Young People

  • Coventry University

  • The Crown Office and Procurator Fiscal Service (COPFS)

  • East Renfrewshire Council

  • Educational Institute of Scotland (EIS)

  • Fairbridge in Scotland

  • NCH Scotland

  • North Ayrshire Council

  • Scottish Borders Council

  • Scottish Executive

  • Scottish Police Federation (SPF)

  • South Ayrshire Council

  • Victim Support Scotland

  • Youthlink Scotland

5. Supplementary written evidence was also received from the Scottish Executive, Victim Support Scotland, Professor David Feldman, Youthlink Scotland and the Scottish Drugs Enforcement Agency - National Hi-Tech Crime Unit (Scotland).

Scottish Executive consultation

6. In July 2004 the Scottish Executive launched a consultation on proposals to legislate to strengthen the protection of children from sexual harm. The consultation paper, Protecting Children from Sexual Harm, included a draft bill along very similar lines to the Bill as introduced.

7. The Consultation Paper stated that protection of children is a top priority for the Scottish Executive and is a key part of the Executive’s agenda for building safer communities. In the Ministerial foreword, the Minister for Justice cited a growing realisation in recent years of the extent of crimes which involve the sexual abuse of children and the associated impact of new technology.

“Modern technology has brought many benefits in extending the ways in which we can communicate with one another. Sadly sex offenders have also recognised this fact. It has become clear that they are exploiting modern technologies, in particular the internet, to contact children with the aim of luring them into situations where physical sexual abuse can take place – a process now commonly called “grooming”.”1

8. An analysis of responses to the consultation was carried out by The Research Shop on behalf of the Scottish Executive. Copies of the analysis were provided to the Committee for consideration during its Stage 1 scrutiny of the Bill. In the Policy Memorandum, the Scottish Executive stated that in the 72 responses received there was widespread support for this proposed new offence, introduction of risk of sexual harm orders (RSHOs) and the extension of sexual offence prevention orders (SOPOs).2

9. The Committee notes the confirmation from the Executive that no response to the Executive’s consultation exercise was received from the National Hi-Tech Crime Unit (Scotland) (NHTCU(S)), part of the Scottish Drugs Enforcement Agency.3 One of the Unit’s main functions is to carry out covert internet investigations on behalf of the Scottish Police Service. Members of the Committee met with a representative from the Unit to discuss its reaction to the provisions of the Bill.

10. The Committee welcomes the consultation exercise carried out by the Scottish Executive prior to the introduction of the Bill and the detailed analysis of the responses received. The Committee regrets, however, that the Executive did not directly approach the NHTCU(S) to obtain a practical insight into the work that it does to detect and disrupt paedophile activity on the internet. The Committee recommends that the Executive Bill team takes the opportunity to arrange such a meeting and to work with the Unit during the remaining passage of the Bill (and beyond during the implementation period should the Bill be enacted) in order to ensure that it reflects operational experience and needs.

General reaction to the bill

11. In general, respondents to the Committee’s call for evidence and oral witnesses have welcomed the proposals contained in the Bill as a means of extending the protection of children from sexual abuse, although it should be noted that this has not been without reservations. Many expressed the hope that the legislation will help to address the problem of the grooming of children for sexual abuse in particular via the internet and other new communication technologies. The majority also welcomed the proposal to introduce risk of sexual harm orders which will impose restrictions on adults who display inappropriate sexual behaviour towards children. They also welcomed the proposed application of sexual offence prevention orders to convicted sex offenders at the point of sentence.

Structure of report

12. This report sets out the findings of the Committee’s scrutiny of the main provisions of the Bill. Firstly, the report considers the proposed creation of a specific offence of meeting or travelling to meet a child, following preliminary contact, for the purpose of committing a sexual offence. Issues considered include the construction of the offence and possible alternative approaches. Secondly, the report goes on to discuss the proposed risk of sexual harm orders, the need for such orders, interaction with the criminal law and issues around disclosure and monitoring. The report then goes on to consider the human rights implications of the proposals contained in the Bill with particular emphasis on compliance with the European Convention on Human Rights. The report also considers the proposal to allow sexual offences prevention orders to be imposed by a court at the point of imposing sentence. Finally, the report considers issues arising from the Policy Memorandum, Financial Memorandum and Subordinate Legislation Committee report on delegated powers.

Offence of meeting a child following certain preliminary contact

13. In the Policy Memorandum, the Executive stated that the Bill aims to provide additional protection for children by creating a new offence which will have a maximum penalty of 10 years imprisonment on indictment. It is designed to catch those aged 18 or over who undertake a course of conduct with a child under 16 leading either to a meeting during or after which the adult intends to engage in sexual activity with the child or travelling with the intention of having such a meeting.4

14. The Executive considers that this will enable action to be taken before any sexual activity takes place where it is clear that that is what the offender intends. The Bill is intended to catch conduct that takes place in any part of the world, provided some aspect of the communicating, meeting or travelling takes place in Scotland or the offender is a British citizen or UK resident.5

15. The Committee notes the many references in both the Policy Memorandum and the Explanatory Notes to ‘grooming’, ‘sexual grooming’ and a ‘grooming offence’. Specifically, in the Policy Memorandum it is stated that the process by which predatory sex offenders seek to make contact and establish a relationship with potential child victims “is commonly known as grooming.”6 It further acknowledges that “[g]rooming is not however limited to the internet. It can take place through any communication medium or during face-to-face contact.”7

16. When giving evidence to the Committee on 26 January 2005, the Minister agreed to give further consideration to the question of whether specific reference to grooming should be made in the Bill. Committee members considered that this might help to clarify the type of behaviour which the offence aimed to tackle. The Minister wrote to the Committee and indicated that having given this matter further consideration, he did not think that a specific reference to grooming would be helpful. His response continued—

“As is made clear in the Policy Memorandum, the Bill is intended to deal with those offenders who seek to "groom" children for the purpose of committing sexual offences. A criminal offence must be worded in clear and precise terms to ensure that persons are aware of the types of behaviour which will constitute an offence. I am satisfied that section 1 achieves that clarity in that the provision is very specific as to the steps that must be taken for the offence to be complete. It should be noted that the Bill does not require the earlier meetings or communications to have any sexual content, as might be implied if use were to be made of terms such as “sexual grooming”.”8

17. The Committee is extremely concerned about the response from the Minister as the offence set out in section 1 of the Bill does not in fact seek to criminalise grooming per se, but rather targets action subsequent to the grooming process when a perpetrator moves towards committing a physical sexual offence against a child. The Committee has, therefore, sought to examine both existing offences and possible alternative approaches to tackle grooming behaviour directly.

Existing offences

18. The Committee has considered the range of existing offences which may currently be used to prosecute individuals who engage in inappropriate sexual contact with children in order to determine whether a new offence is required to fill a gap in the law.

19. The Scottish Executive has stated that:

The law as it currently stands is able to deal with many cases that involve grooming behaviour. Possible offences include fraud; offences under the Communications Act 2003; offences under the Civic Government (Scotland) Act 1982; lewd and libidinous practices; and breach of the peace. It is conceivable however that at present someone could carefully tailor their behaviour to ensure that no offence was committed during the course of grooming. (Any subsequent sexual assault would of course constitute a serious offence.) At present therefore the police could detect and stop grooming activity, but in some situations no charges might be brought.”9

And also—

“In most cases where suspicious activity is reported to the police there are already prosecutions in serious cases for related offences such as lewd and libidinous behaviour, or in less serious cases what appears to be ill-advised behaviour is deterred by the police inquiries.”10

20. In oral evidence to the Committee on 12 January 2005, the Law Society set out some of the offences that are presently covered by common law and statute which could be applicable to behaviour that the Bill seeks to criminalise. Lewd and libidinous conduct, which covers acts of indecency towards children under the age of puberty, and the statutory extension of those provisions to girls in section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995, is one such offence.11

21. In a recently reported case, a charge of lewd and libidinous conduct was brought against a 31 year old man from Dundee who, having claimed on-line to be 19, engaged in ‘cybersex’ with a 14 year old girl from Clackmannanshire and subsequently sought to meet her. The offender pleaded guilty and was sentenced to two years imprisonment, with a possible recall for a further three years if he offends again after release, and was placed on the sex offenders register.12

22. However, the Law Society also stated in its oral evidence that the Bill appears to try to strike at situations in which there has been conduct that might not appear to be offensive as “initial contact would be objectively innocent and therefore could not be covered by the law of lewd and libidinous conduct, breach of the peace or something of that nature.”13

23. ACPOS acknowledged that the proposed legislation is “a helpful and useful step” as “the current law is not as robust as we would want it to be, particularly given the advent of internet grooming. That is why we support the proposals.”14

24. The type of preparatory activity carried out by paedophiles with children may appear superficially innocent but this can mask serious criminal intent. For this reason, the Committee believes it may not be possible to utilise existing offences such as lewd and libidinous conduct or breach of the peace in cases where no inappropriate conduct has taken place during the course of communication.

Alternative approaches

25. In its Policy Memorandum the Scottish Executive stated that the two main alternatives would be to leave the law as it stands or to seek to criminalise grooming activity in itself without any further evidence of intention to commit a sex offence. In relation to the section 1 offence it stated, “While the law in Scotland does already provide a number of ways of dealing with grooming, the fact that grooming behaviour could be constructed to avoid prosecution indicated that strengthening the law was a necessary step.”15 In relation to the second alternative, the memorandum stated that the Bill “seeks to strike a balance between ensuring that the police and Procurator Fiscal Service have the tools at their disposal to deal with grooming behaviour, but without criminalising what might be innocent activity.” 16 Grooming activity alone, therefore, without the adult meeting or travelling to meet the child is not sufficient itself for the offence at section 1 of the Bill to have been committed.

26. In its written submission, the Scottish Police Federation put forward the view that the offence should be complete when grooming activity alone takes place.17 In oral evidence the SPF expressed concern that the offence as currently drafted is too restrictive. It suggested that the drafting of section 1 of the Bill follows the model of section 15 of the Sexual Offences Act 2003 which applies only in England and Wales, and that anecdotal evidence from forces in those jurisdictions is that it is not used to any extent. Section 14, however, which makes it an offence to arrange or facilitate the commission of a child sex offence, is used and the SPF stated that “if we were looking for an extremely useful new law, it would be along the lines of section 14 of the Sexual Offences Act 2003, rather than section 15.”18

27. Section 14 of the Sexual Offences Act 2003, which applies in England and Wales only, is set out below—

14 Arranging or facilitating commission of a child sex offence

(1) A person commits an offence if-

(a) he intentionally arranges or facilitates something that he intends to do, intends another person to do, or believes that another person will do, in any part of the world, and

(b) doing it will involve the commission of an offence under any of sections 9 to 13.19

(2) A person does not commit an offence under this section if-

(a) he arranges or facilitates something that he believes another person will do, but that he does not intend to do or intend another person to do, and

(b) any offence within subsection (1)(b) would be an offence against a child for whose protection he acts.

(3) For the purposes of subsection (2), a person acts for the protection of a child if he acts for the purpose of-

(a) protecting the child from sexually transmitted infection,

(b) protecting the physical safety of the child,

(c) preventing the child from becoming pregnant, or

(d) promoting the child's emotional well-being by the giving of advice,

and not for the purpose of obtaining sexual gratification or for the purpose of causing or encouraging the activity constituting the offence within subsection (1)(b) or the child's participation in it.

(4) A person guilty of an offence under this section is liable-

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.

28. The Committee considers that section 14 (and associated sections defining offences) of the Sexual Offences Act 2003 may represent an alternative model for framing legislation which would offer additional protection to children from sexual harm. The Committee will return to this provision later in the report.

Construction of the offence - issues raised

29. While the vast majority of respondents and witnesses have welcomed the proposal to create a specific offence, a number of issues have been raised in relation to the construction of the offence. These were focused around four elements in particular:

  • requirements for proving the offence;

  • whether grooming activity should be an offence without any subsequent action;

  • age limits of both the offender and the victim; and

  • prior communication – whether communication on two previous occasions should be required.

Proving the offence

30. In order for the offence to be complete all of the following elements must exist:

  • the alleged offender (‘the adult’) must be 18 or over and the intended victim (‘the child’) under 16;

  • the adult has met or communicated with the child on at least two occasions (‘preliminary contact’);

  • subsequent to this preliminary contact, the adult intentionally meets the child or travels with the intention of meeting the child;

  • at the time of such meeting or travel, the adult intends to do anything to or in respect of the child which if done would constitute the commission by the adult of a ‘relevant offence’20;

  • the adult does not reasonably believe that the child is 16 or over.

31. ACPOS stated that the offence at section 1 of the Bill would be difficult to prove although it may provide a basis for prevention or disruption of paedophile activity. It suggested that due to the difficulty in obtaining evidence, it is likely that the new offence would only be used in a very small number of cases and therefore not address the problem of on-line grooming as effectively as intended.21

Evidence of intent

32. There was some concern from respondents to the Executive’s consultation and the Committee’s call for evidence about the suggestion in the Consultation Paper22, and repeated in the Explanatory Notes23, that the adult’s intention to commit an offence might be based on the fact that the adult had travelled to a meeting with condoms and lubricants. It was felt that such a message might work against efforts of health professionals to reduce the incidence of unwanted pregnancies and sexually transmitted infections by encouraging the use of condoms. Whether or not carrying condoms etc. is seen as incriminating in any particular case would depend on the surrounding circumstances. This issue is considered further in relation to RSHOs later in this report.

33. The written submission from the Scottish Children’s Reporter Administration suggested that the offence may be difficult to prosecute successfully due to the need to infer intention from “behaviour that may easily be shown to have alternative innocent explanations, particularly since the communications need not have an explicit sexual content.”24

34. ACPOS submitted that because of the various elements which must be in place for the offence to be complete, the Bill may not bring about a large number of cases. One such element would be the requirement to prove that “there is an intention to engage in inappropriate sexual behaviour” which ACPOS suggested may be “very difficult.”25

35. In its oral evidence, the Law Society acknowledged that in order to prove the offence it would be necessary to prove that the accused had the intent to commit one of the 22 offences listed in the schedule to the Bill. It was suggested that this “would be drawn from the facts and circumstances of the case. Evidence might be led and the inference would be drawn from the facts and circumstances.”26

36. The Committee believes that the offence at section 1 of the Bill as currently constructed will make only a marginal difference in tackling the threat posed to children by paedophiles. Although a small number of prosecutions may result, evidence suggests that the offence will be extremely difficult to prove, particularly in cases where there is no explicit sexual content in previous communications between the offender and the victim which would clearly demonstrate the intent of the offender.

Age limits

37. The Bill provides that the alleged offender must be 18 or over and that the child (intended victim) must be under 16. Many respondents to the Committee’s call for evidence considered that the minimum age for prosecution should be lowered to 16 or suggested that the issue requires further examination. For example, Barnardo’s Scotland recommended that the age for the offender be set at 16 but with conditions including the creation of guidance to help draw distinctions between grooming behaviour and normal adolescent ‘romantic exchanges’ and the creation of treatment programmes for young offenders.27 In oral evidence, Barnardo’s Scotland explained that this was based on its own services’ experience of working with young people who are exhibiting sexually problematic behaviour including those aged 16 and 17 who were capable of using, and had used, the internet.28 The Scottish Police Federation stated that it would prefer the age to be 16 as this would be more consistent with other aspects of the criminal law, but that it may also be appropriate to consider the age of the “child” relative to the age of the “adult”.29 Children in Scotland expressed the strong belief that the age of an adult should not be lowered below 18 and highlighted a specific example that a 16 year old boy could be having a consensual relationship with a 15 year old girl and should not be criminalised.30 COSLA’s submission explained that of 13 councils who have expressed a view on the matter, three recommended that 18 should be the minimum age and ten recommended 16.31

38. In oral evidence the Association of Scottish Police Superintendents pointed out that, as currently drafted, the legislation “suggests that grooming can only be downwards—an older person grooming a younger person”. However, ASPS went on to suggest that this is not always the case, “It can be the other way about; the younger person can be the predator.”32

39. At the consultative seminar held on 19 January 2005, the views of organisations who work with children and young people were gathered and opinion appeared to crystallise around setting the age of the offender at 18, as currently proposed in the Bill. The reasons for this centred upon a desire not to use the criminal law to deal with 16 and 17 year olds accused of the offence but rather to utilise the Children’s Hearings system in order to provide an appropriate response including treatment options for the offender.

40. In earlier oral evidence, Barnardo’s Scotland suggested that while it would like to set the age of the offender at 16, it would also like the Bill to specify that, for 16 and 17 year olds, “the offence should be dealt with through the Children’s Hearings system.”33 James Chalmers, lecturer in criminal law at the University of Aberdeen and a member of the Scottish Law Commission’s advisory group on reform of the law of rape and other sexual offences, stated in oral evidence that he tended towards the view that “the age that the Bill currently specifies, which is 18, may need to be reduced. I agree that prosecution might not be the normal response but at least the matter would be clearly covered by the criminal law.”34 He pointed to a Home Office study published in 1998 which suggested that adolescents might be responsible for as many as a third of sexual offences.35

41. The National Hi-Tech Crime Unit (Scotland), expressed concern that in the Bill as currently drafted, a person must be 18 years of age or over to commit the offence —

“It is well recognised by psychologists who have studied paedophiles and this whole area of sex offending, that the majority of paedophiles are aware of their interest in young children from a young age. Almost certainly by the age of 18 they have acknowledged this interest.”36

42. The NHTCU(S) response went on to give an example of a situation where a 15-year-old male could conduct the act of grooming a 12-year-old girl online and fulfil the criteria set out in section 1 of the Bill—

“In such an instance there would be no legislative recourse via the new Act to prosecute the offender and, perhaps just as important, have a mechanism in place via the Sex Offenders Register to monitor their future conduct.”37

43. The NHTCU(S) also drew a parallel with a 15-year-old male being charged with having sexual intercourse with a 12-year-old girl, stating that “this would be reported to the Procurator Fiscal and dealt with accordingly. Similarly, a 16-year-old male would also be charged if he had sexual intercourse with a 15-year-old girl.” The response pointed out that the police have a duty to report such cases to Procurators Fiscal and at that stage all the circumstances are taken into account as to whether a prosecution is necessary and in the public interest. It was suggested that the same considerations should be applicable to the new Act.38

44. In oral evidence, the Deputy Minister for Justice discussed with the Committee the rationale for fixing the age of the offender at 18. He acknowledged that a young person, whether 14, 16 or 18 years of age could be equally capable of committing the same offence and that the impact on the victim would be indistinguishable. However, he stated that the relative maturity of a person at each of these ages could be very different. Although young people in Scotland gain many rights at the age of 16, the Minister explained that development issues still need to be considered and the Executive wanted to avoid adolescents being inadvertently caught up in criminal activity as a result of the Bill.39 He acknowledged that “an argument could be made for setting the limit at 16 rather than 18, but we decided on a limit of 18.”40

45. The Minister also confirmed that the Executive had considered an alternative approach which would take into account the difference in age between the perpetrator and victim but had concluded that this too was fraught with difficulties. He contended that if, for example, an age gap of four years was set, someone would point to circumstances in which a gap of three years would be more appropriate.41

Children’s Hearings System

46. The Children’s Panel is a statutory tribunal under the Inquiry and Tribunals Act 1992. The Children’s Hearings system draws its statutory authority in the main from the Children (Scotland) Act 1995 .42 Generally, the upper age limit for referral to the Children's Hearing is 16, unless the child is already subject to a supervision requirement, then it is 18.43

47. Where the ground of referral to the hearing is that the child has committed an offence, there is no restriction on the type of offence. So the fact that the offence in question is a sexual one is not, of itself, a reason for prosecuting rather than dealing with the matter by referral to a Children's Hearing. Even quite serious sexual offences can be referred to the Children’s Hearings system.

48. The Scottish Children’s Reporter Administration stated in written evidence—

“Where there is prosecution of a child under 16 years of age, a young person aged 16 or 17 subject to a supervision requirement, or a young person aged 16 to 17½ not subject to a supervision requirement, the court has various powers and duties under section 49 of the Criminal Procedure (Scotland) Act 1995 to seek advice from the Children’s Hearing or remit to the Children’s Hearing for disposal. This means that a welfare and treatment approach rather than a punitive one would be available to most younger offenders. Accordingly SCRA would support the reduction of the minimum age.”44

49. If it was thought appropriate to permit referral to the Children’s Hearings system in the case of a person within six months of his or her 18th birthday who is not already subject to a supervision requirement, this would require an amendment to section 92 of the Children (Scotland) Act 1995.

50. The Committee considers that, on the basis of evidence received, there may be cases where young people between 16 and 18 years of age commit the section 1 offence.

Age of the child

51. The maximum age of the “child” (currently under 16) was also questioned in written submissions from several organisations. Children in Scotland noted that the proposals do not seek to protect young people over the age of 16. It noted that young people aged 16 and 17 can still be vulnerable to abuse from older adults, whilst also noting that it would be difficult to make it illegal for an adult to groom a 16 or 17 year old without changing the age limits in other legislation.45 The Association of Directors of Social Work pointed out that the Children (Scotland) Act 2003 defines a child up to 18 years and that the Bill does not acknowledge those children of 16 to 18 years who are very vulnerable and who would be likely targets for sex offenders.46 In its response, COSLA recommended that the Scottish Executive should seek to include vulnerable adults within this legislation also.47

Conclusion on age limits

52. The Committee considers that the key factor which must be taken into account in determining the age limits in the definition of the section 1 offence to be the relative position of power and influence exerted by the offender over the child. Although an imbalance of power can occur between people of similar ages and a young person can in certain circumstances exert influence over a vulnerable older person, the Committee recognises that the offence set out in the Bill is intended principally to strike at seasoned predatory paedophiles who will tend to be considerably older than the victims they seek to prey upon. However, the Committee also acknowledges evidence that a proportion of sex offenders or individuals demonstrating sexually problematic behaviour are under 18 years of age.

53. The Committee has heard persuasive arguments to set the age of the offender at 16 to ensure that 16 and 17 year olds do not escape prosecution for the grooming of younger children. It has also heard arguments for retaining 18 as the minimum age of the offender to prevent such young people from becoming inadvertently criminalised. The Committee has considered this question carefully and believes that it is important to ensure that the offence can be used to tackle grooming activity by predatory young people as well as adults. In order to ensure the widest possible application of the offence, the Committee recommends that no age should be specified for the offender. However, it should be left to the Crown Office, social work and other agencies to determine the correct intervention in the case of a young person accused of committing the offence. This may be through criminal prosecution, referral to the Children’s Hearings system or alternative interventions. Such discretion should be supported by appropriate guidelines issued by the Lord Advocate.

54. The Committee is content that for the purposes of section 1 of the Bill, a child is defined as a person under the age of 16.

Married couples

55. The Committee was made aware of the variations in the age of consent and marriage around the world. Among the 15 countries which made up the European Union prior to May 2004, for example, in Finland, Sweden, Denmark and France, the age of consent for both heterosexual and homosexual sex is 15 years of age.48 In Spain, there is no statutory age of consent, but in general, consensual sexual relations are not penalised from the age of 12.49 In terms of the age at which young people can legally marry, the Committee is aware of several countries around the world where this is under 16. For example in Chile, males over 14 years old and females over 12 years can marry, while in Pakistan, the age of consent for marriage is 18 for males and 14 years for females. 50

56. The Committee considered whether there should be a marriage exemption in the Bill to prevent the criminalisation of couples legally married in another country with a lower age of consent than in the UK. When questioned about this, Scottish Executive Bill team members acknowledged that if all elements of the offence, as currently drafted, are present an offence would be committed in Scots law irrespective of whether the offence that was intended was not an offence in another country.51 However, they stated that in determining whether it was in the public interest to prosecute an offender, prosecutors would take into account the overall circumstances of the offence including factors such as a pre-existing relationship.52

57. In his oral evidence, the Minister rejected the option of a marriage exemption, stating that there could be circumstances in which it would be right to prosecute someone seeking to have sexual relations with a spouse aged under 16. He instead favoured the retention by the Crown Office and Procurator Fiscal Service of discretion in deciding whether it was in the public interest to prosecute.53

58. In his written submission to the Committee, Professor David Feldman suggested that there should be a marriage exemption. He considered that if the marriage would be recognised as valid under Scots law, it would be an unjustifiable infringement of Article 8 of the European Convention on Human Rights to criminalise the making of arrangements for the parties to meet for sexual purposes . Even if, for public policy reasons, the marriage would not be recognised by Scots law, but would be recognised by the lex loci celebrationis (the law of the place where the marriage is celebrated) and the law of the parties' domicile(s), Professor Feldman suggested that it would be difficult to justify interfering with marital intercourse through use of the criminal law.54 He concluded—

“Without a marriage exemption, there would appear to me to be a significant risk that the legislation would be held to be an unjustifiable interference with the private lives of parties to the marriage.”55

59. The Executive responded in writing to Professor Feldman’s evidence and stated that—

“It is recognised that some countries have differing age limits for marriage. This has not prevented the operation of section 5 of the Criminal Law (Consolidation) (Scotland) Act 1995 which makes it an offence for any person, in Scotland, to have sexual intercourse with a girl under the age of 16. Before bringing any prosecution under this provision, the Crown will take all the circumstances of the case into account and consider whether it is in the public interest to prosecute. However, a blanket marriage exemption is not considered appropriate either in the context of the section 1 of the Bill or section 5 of the 1995 Act. In both cases, the provisions could operate so as to bring proceedings against adults who exploit lower age limits for marriage in other countries in order to commit acts which, in terms of the law of Scotland, amount to sexual offences against children.”56

60. The Committee notes the respective positions of Professor Feldman and the Scottish Executive relating to the need for a marriage exemption. The Committee understands that the reason why there is no analogous problem in respect of section 5 of the Criminal Law (Consolidation) (Scotland) Act 1995 is because it refers, explicitly, to a person having “unlawful” sexual intercourse. For the purposes of these offences “unlawful” has been interpreted as meaning “extra-marital”. This means that none of the offences under section 5 can be committed by a person having sexual intercourse with their spouse. In other words, the issue which arises under section 1 of the Bill has been expressly addressed in section 5 of the 1995 Act.

61. The Committee remains concerned that there might be a challenge to criminal proceedings brought under section 1 of the Bill if the parties were married, because that would give rise to a possible breach of article 8 of the ECHR. It therefore calls on the Executive to respond to the Committee on this matter in advance of the Stage 1 debate.

Prior communication

62. In relation to the requirement for previous preliminary contact to have taken place, the Bill requires that the adult has met or communicated with the child on at least two earlier occasions. Several respondents questioned this requirement. The Association of Directors of Social Work considered it to be prohibitive as a meeting can be set up with just one communication.57 The Scottish Children’s Reporter Administration recommended revising the requirement to one prior communication in order to more accurately reflect the reality of some children’s vulnerability and some perpetrators’ skill in exploiting it.58

63.In its written submission the Law Society questioned why there is a necessity for the accused to have met or communicated with a child on at least two earlier occasions. It recommended that the reference to two earlier occasions should be deleted from the offence provision.59 In oral evidence Law Society witnesses confirmed their belief that there need be only one communication.60

64. In oral evidence, The Association of Chief Police Officers in Scotland (ACPOS) suggested that while more than one contact may often be made in the grooming of children for sexual abuse—

“If contact had been made on a single occasion and the circumstances and other information that was available to us suggested that the contact was illegitimate it would not be helpful if we were required to wait until another contact had been made or the person had travelled with the intention of meeting the child and for more evidence that the meeting was likely to lead to sexual abuse, before we could intervene.”61

65. In his evidence, James Chalmers also questioned the requirement for two previous communications—

“One lengthy internet conversation could last hours or the best part of a day and could be much more significant than two short conversations. That is why I have my doubts about the limitation of requiring two previous meetings or communications. I am not sure that that provision serves any useful purpose.”62

66. Dr Rachel O’Connell, Director of Research, Cyberspace Research Unit, University of Central Lancashire, gave evidence to the Committee that, in her experience, grooming can take place over a period of many months, but in at least one case in Wigan, a girl went to a meeting with a paedophile after only a few conversations during one day on-line.63

67. In its submission to the Committee, the National Hi-Tech Crime Unit (Scotland) stated—

“There is no evidence to suggest that a paedophile will not carry out the grooming process during the first communication and arrange to meet up with a child. This is no doubt the case in many instances. The aim of the new legislation is the protection of children and this loophole may well be one that the paedophile would utilise to avoid prosecution.”64

68. In response to a question on this issue, the Minister explained that the requirement for prior communication on two occasions was in order to clearly demonstrate the intent of the accused to commit a criminal act. One prior communication, he suggested, “might catch out people who were inadvertent or who had not thought their actions through and who, once they had done so, might not engage further.”65 He argued that requiring two communications would demonstrate clear intention to the courts. The Minister acknowledged that one long chat, perhaps with a break, might raise an issue about whether there were one or two communications but that “that would be a matter for the prosecution to argue and for the court to decide.”66

69. The Committee understands that by specifying the requirement to demonstrate communication between the adult and the child on at least two occasions prior to the adult meeting or travelling with the intention of meeting the child, the Executive is trying to avoid catching innocent or inadvertent communication within the scope of the offence. The Committee shares this concern but considers that it is the content and context of communications which is key to proving the offence rather than the number of communications. There is a clear possibility that a particularly skilled paedophile could, in one communication, arrange a meeting with a vulnerable child.

70. The Committee recommends that this element of the offence should be reduced to only one prior communication.

71. The Committee is also concerned that a would-be perpetrator could evade prosecution if, by acting in concert with others in a paedophile ring, he or she travels to meet a child with the intention of committing a relevant offence but has had no direct previous communication with the child. On the face of it, this type of would-be perpetrator would not be caught by the section 1 offence as it currently stands but would be caught by the terms of section 14 of the Sexual Offences Act 2003 (which does not apply to Scotland). If there is no existing criminal law provision in Scotland which can strike at such behaviour, the Committee recommends that the Executive bring forward an amendment at Stage 2 to close this apparent loophole. The Committee would be grateful for a response from the Executive on this point in advance of the Stage 1 debate.

Travel element of offence

72. The Law Society raised a concern that as drafted, the offence would only be complete if the adult travelled to meet the child. This appeared to exclude the possibility that the child could be induced to travel to meet the adult.67

73. The Committee is concerned at this apparent loophole in the construction of the offence and calls upon the Executive to re-examine this element. The Committee calls upon the Executive to provide a response on this point in advance of the Stage 1 debate.

Defence of reasonable belief

74. Section 1(1)(c) of the Bill establishes that an offence will not be constituted unless the adult had a reasonable belief that the child was under 16. In its written submission, the Law Society questioned whether the test of “reasonable belief” would be determined on the basis of a subjective or objective test.68 In oral evidence, the Law Society provided further clarification of the issue, explaining that the offence might be difficult to prove because, as drafted, the onus would be on the Crown to show that the accused did not have a reasonable belief that the child was over 16. It suggested that, in keeping with other Scottish offences, the process could be inverted—

“Instead of placing the onus on the Crown to prove the reasonable belief of the accused in relation to the victim, the provision is framed in the way of a defence—showing that the accused had a reasonable belief that the person was over the age is a defence to a charge. We have given that considerable thought and think that it might be easier to prove the offence if we use the formula that is used in the Criminal Law (Consolidation) (Scotland) Act 1995 and other existing Scottish offences.”69


Footnotes:

1 Scottish Executive, consultation paper, Protecting Children from Sexual Harm, page 3

2 Policy Memorandum, paragraph 14

3 Scottish Executive, supplementary written evidence, 22 February 2005, page 2

4 Policy Memorandum; paragraph 5

5 Ibid.

6 Ibid, paragraph 3

7 Ibid.

8 Scottish Executive, supplementary written evidence, 22 February 2005, page 1

9 Explanatory notes, paragraph 39

10 Ibid.

11 Official Report, Justice 1 Committee, 12 January 2005, c1485

12 BBC Online ref: http://news.bbc.co.uk/1/hi/scotland/4205497.stm

13 Official Report, Justice 1 Committee, 12 January 2005, c1485

14 Ibid, c1463

15 Policy Memorandum, paragraph 12

16 Ibid.

17 SPF, written evidence, 21 December 2004, page 2

18 Official Report, Justice 1 Committee, 12 January 2005, c1466

19 The offences set out in sections 9 to 13 are: sexual activity with a child; causing or inciting a child to engage in sexual activity; engaging in sexual activity in the presence of a child; causing a child to watch a sexual act; and child sex offences committed by children or young persons

20 The intention of the adult could be to carry out those actions at the meeting itself, or subsequent to that meeting.

21 ACPOS, written evidence, 21 December 2004, page 1

22 Consultation paper, paragraph 20

23 Explanatory notes, paragraph 8

24 SCRA, written evidence, 21 December 2004, page 1

25 Official Report, Justice 1 Committee, 12 January 2005, c1463-1464

26 Ibid, c1494

27 Barnardo’s Scotland, written evidence, 15 December 2004, page 3

28 Official Report, Justice 1 Committee, 22 December 2004, c1411

29 Scottish Police Federation, written evidence, 5 January 2005, page 1

30 Children in Scotland, written evidence, 21 December 2004, page 3

31 COSLA, written evidence, 21 December 2004, page 1

32 Official Report, Justice 1 Committee, 12 January 2004, c1470

33 Official Report, Justice 1 Committee, 22 December 2004, c1411

34 Ibid, c1425

35 Ibid.

36 NHTCU(S), written evidence, 23 February 2005, page 2

37 Ibid.

38 Ibid.

39 Official Report, Justice 1 Committee, 26 January 2005, c1538-1539

40 Ibid, c1540

41 Official Report, Justice 1 Committee, 26 January 2005, c1543

42 Children’s Panel Chairmen’s Group, written evidence, 21 December 2004, page 1

43 Children (Scotland) Act 1995, s. 93(2)

44 SCRA, written evidence, 21 December 2004, page 2

45 Children in Scotland, written evidence, 21 December 2004, pages 2 & 3

46 ADSW, written evidence, 21 December 2004, page 1

47 COSLA, written evidence, 21 December 2004, page 3

48 House of Commons Library research paper 00/15

49 A person aged over 16 who has sex with a person aged between 12 and 16 may be liable to prosecution.

50 http://www.interpol.org/Public/Children/SexualAbuse/NationalLaws/Default.asp

51 Official Report, Justice 1 Committee, 8 December 2004, c1320

52 Ibid.

53 Official Report, Justice 1 Committee, 26 January 2005, c1546

54 Professor David Feldman, written evidence, 31 January 2005, page 1

55 Ibid.

56 Scottish Executive, supplementary written evidence, 22 February, annex, paragraph 3

57 ADSW, written evidence, 21 December 2004, page 1

58 SCRA, written evidence, 21 December 2004, page 1

59 Law Society, written evidence, 7 January 2005, page 2

60 Official Report, Justice 1 Committee, 12 January 2005, c 1486

61 Official Report, Justice 1 Committee, 12 January 2005, c1465

62 Official Report, Justice 1 Committee, 22 December 2004, c1427

63 Official Report, Justice 1 Committee, 26 January 2005, c1521-1522

64 NHTCU(S), supplementary written evidence, 23 February 2005, page 2

65 Official Report, Justice 1 Committee, 26 January 2005, c1543

66 Official Report, Justice 1 Committee, 26 January 2005, c1544

67 Official Report, Justice 1 Committee, 12 January 2005, c1489

68 Law Society of Scotland, written evidence, 7 January 2005, page 2

69 Official Report, Justice 1 Committee, 12 January 2005, c1487