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5th Report 2005 (Session 2)

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

Volume 2: Evidence

CONTENTS

ANNEX A – REPORT FROM THE SUBORDINATE LEGISLATION COMMITTEE

ANNEX B – EXTRACTS FROM THE MINUTES

ANNEX C – ORAL EVIDENCE AND ASSOCIATED WRITTEN EVIDENCE

ANNEX D – OTHER WRITTEN EVIDENCE

38th Meeting 2004 (Session 2) 8 December 2004

Oral Evidence

Scottish Executive
Crown Office and Procurator Fiscal Service

40th Meeting 2004 (Session 2) 22 December 2004

Written Evidence

Barnardo’s Scotland
James Chalmers, University of Aberdeen

Oral Evidence

Barnardo’s Scotland
James Chalmers, University of Aberdeen

1st Meeting 2005 (Session 2) 12 January 2005

Written Evidence

Association of Chief Police Officers in Scotland
Law Society of Scotland
Scottish Police Federation

Oral Evidence

Association of Chief Police Officers in Scotland
Association of Scottish Police Superintendents
Scottish Police Federation
The Law Society of Scotland

Associated Written Evidence

Association of Chief Police Officers in Scotland

2nd Meeting 2005 (Session 2) 26 January 2005

Oral Evidence

Rachel O’Connell, University of Central Lancashire
Deputy Minister for Justice, Scottish Executive

Associated Written Evidence

Rachel O’Connell, University of Central Lancashire
Deputy Minister for Justice, Scottish Executive

Other Written Evidence

Aberdeenshire Council
Angus Council
APEX Scotland
Association of Directors of Social Work
Childnet International
Children in Scotland
Children’s Panel Chairman’s Group
COSLA
Dundee City Council
Dyer, Marion
East Lothian Council
Educational Institute for Scotland
Fairbridge in Scotland
Feldman, Professor David
General Teaching Council for Scotland
Highland Schools Trust
MacKinnon Donald
Maslin A.M.
National Association of People Abused in Childhood
Professional Association of Teachers, Scotland
Scottish Catholic Education Commission
Scottish Children’s Reporter Administration
Scottish Drug Enforcement Agency – National High-Tech Crime Unit (Scotland)
Scottish Police College
Scottish Pre-School Play Association
Stirling Council
South Lanarkshire Council
Youthlink Scotland

Justice 1 Committee

4th Report 2005 (Session 2)

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

Volume 2: Evidence

ANNEX A: REPORT FROM THE SUBORDINATE LEGISLATION COMMITTEE

The Committee reports to the Justice 1 Committee as follows—

Introduction

At its meetings on 1 and 8 February 2005, the Subordinate Legislation Committee considered the delegated powers provisions in the Protection of Children and Prevention of Sexual Offences (Scotland) Bill at Stage 1. The Committee submits this report to the Justice 1 Committee, as the lead committee for the Bill, under Rule 9.6.2 of Standing Orders.

The Executive provided the Committee with a memorandum on the delegated powers provisions in the Bill, which is reproduced at Annex 1.

The Executive’s response to points which the Committee raised during its consideration is reproduced at Annex 2.

Delegated Powers Provisions

Section 1(5) Meeting a child following certain preliminary contact

The Committee noted that section 1 of the bill creates a new “grooming” offence when, following earlier contacts, an adult meets, or travels to meet, a child with the intention of committing a relevant offence. The Committee examined the delegated power at section 1(5) which relates to the amendment of “relevant offences”, which are set out at Part 1 of the schedule to the bill.

The Committee was content that this was an appropriate delegation of the power as it accepted the requirement to make amendments to the offences contained in the schedule to the bill. The Committee, however, noted that this power allowed the amendment of primary legislation by subordinate legislation and was therefore in effect a Henry VIII power. Given the width of this power and its potential impact on how the bill operates, the Committee was not satisfied that negative procedure should be adopted for this provision.

The Executive in its response has undertaken “to take full account of the Committee’s views on this matter when considering laying amendments for Stage 2 of the Bill”[1].

The Committee welcomed this undertaking and further agreed to suggest to the Executive that it considers the option of negative procedure being adopted for routine amendment to the schedule, with more substantive amendments being subject to affirmative procedure.

The Committee therefore draws this proposal to the attention of the lead Committee, together with its concerns in relation to the provision as currently drafted. The Committee also wishes to draw the lead Committee’s attention to the Executive’s undertaking to take full account of the views of the Subordinate Legislation Committee when considering the lodging of amendments at Stage 2.

Section 11(2) Commencement

The Committee was content with this power as drafted.

MEMORANDUM TO THE SUBORDINATE LEGISLATION COMMITTEE BY THE SCOTTISH EXECUTIVE

PROTECTION OF CHILDREN AND PREVENTION OF SEXUAL OFFENCES (SCOTLAND) BILL

Purpose

This Memorandum has been prepared by the Scottish Executive to assist consideration by the Subordinate Legislation Committee, in accordance with Rule 9.6.2 of the Parliament’s Standing Orders, of provisions in the Protection of Children and Prevention of Sexual Offences (Scotland) Bill (SP Bill 30) conferring powers to make subordinate legislation. It describes the purpose and nature of each provision. This Memorandum should be read in conjunction with the Explanatory Notes and Policy Memorandum for the Bill (documents SP Bill 30-EN and SP Bill 30-PM, respectively).

Policy Context

The primary policy objective of the Bill is to improve protection from sexual harm, with particular emphasis on the protection of children.

Section 1 of the Bill strengthens the law by creating a specific offence to deal with those offenders who attempt to “groom” children for the purpose of committing sexual offences. The offence would occur when an adult has met or communicated with a particular child under 16 on at least 2 occasions, and then meets, or travels to meet, that child with the intention of committing a sexual offence against that child.

The offence is intended to cover situations where an adult establishes contact with a child through, for example, meetings, telephone conversations or communications on the internet, and gains the child’s trust and confidence so that the adult can arrange to meet the child for the purposes of committing a sexual offence.

The Bill also introduces a new civil order – the Risk of Sexual Harm Order (RSHO) – which would assist the police to impose early restrictions on an adult who is deemed to be acting in such a way as to present a risk of sexual harm to children. This order would complement the new criminal offence of grooming, but will cover a much wider spectrum of behaviour, for example explicit communication with children via email or in chatrooms, or loitering around schools or playgrounds.

Finally, the Bill extends the availability of Sexual Offences Prevention Orders (SOPOs) in Scotland. The SOPO is used to place restrictions on an offender who is deemed to pose a risk of serious sexual harm following conviction of or caution in respect of a relevant offence, a finding of not guilty by reason of insanity or a finding that the act was committed but the person was under a disability. At present in Scotland, a SOPO can only be made on application to a Sheriff Court by a Chief Constable in respect of an offender who has previously been dealt with by the court, but who is continuing to exhibit sexually risky behaviour that causes concern. The Bill amends the Sexual Offences Act 2003 to allow courts in Scotland to impose a SOPO at the same time as dealing with the offender in respect of the relevant offence, if the court considers that the offender presents a risk of serious sexual harm to the public.

Subordinate Legislative Powers

The Bill gives the Scottish Ministers power to make subordinate legislation:

  • in relation to the sexual offences which an adult might intend to commit against a child as part of the “grooming” offence in part 1 (Section 1(5)); and
  • for commencement orders including transitional, transitory or saving provisions (Section 11).

Relevant Sexual Offences – Section 1(5)

Power conferred on: The Scottish Ministers

Power exercisable by: Regulations made by Statutory Instrument

Parliamentary Procedure: Negative Resolution of the Scottish Parliament

The new “grooming” offence is complete when, following the earlier contacts, the adult meets, or travels to meet, the child with the intention of committing a relevant offence against the child.

The list of relevant offences is set out in Part 1 of the schedule to the Bill, and consists of offences of a sexual nature that could be committed against children. Part 2 of the schedule provides that references to any of these offences in Part 1 also include a reference to an attempt, conspiracy or incitement to commit the offence and, with the exception of certain specified offences, a reference to aiding, abetting, counselling or procuring the commission of that offence.

Section 1(5) confers power on Scottish Ministers to modify the list of offences in the schedule by statutory instrument. This allows additional offences to be added in the light of experience or if new relevant offences are created.

Section 1(6) makes provision for any order made under section 1(5) to be subject to annulment in pursuance of a resolution of the Parliament.

The intention behind taking subordinate legislation powers is to ensure flexibility to respond quickly to changing circumstances in this important and sensitive area without the necessity for further primary legislation.

Commencement – Section 11(2)

Power conferred on: The Scottish Ministers

Power exercisable by: Regulations made by Statutory Instrument

Parliamentary Procedure: None

Section 11(2) provides for the Scottish Ministers by order to specify the day or days when the provisions of the Bill shall come into force. It allows different days to be specified for different purposes. Section 11(3) provides for such an order to make such transitional, transitory or saving provisions as they think necessary.

This commencement provision is intended to enable effective commencement of the Bill.

PROTECTION OF CHILDREN AND PREVENTION OF SEXUAL OFFENCES (SCOTLAND) BILL

On 1 February 2005, the Committee asked the Executive to respond to the following view:

Section 1(5) Relevant sexual offences

The Committee noted that this provision concerns criminal offences and that it is a Henry VIII power, the use of which could affect the way in which the bill operates. The Committee therefore considered that this provision should be subject to affirmative rather than negative procedure and asks the Executive for its comments on this matter.

The Scottish Executive responds as follows:

Section 1(5) allows the Scottish Ministers to modify the schedule to the Bill and, in particular, to add a reference to an offence to Part 1 of the schedule, delete any such reference from the Part or alter any such reference in that Part.

The Executive notes that the Committee considers that the provision should be subject to affirmative rather than negative procedure and asks the Executive for its comments on this matter.

Part 1 of the schedule contains the list of sexual offences that fall within the definition of “relevant offence”. For the proposed new offence in section 1 of the Bill to be complete, it must be established that, in addition to earlier meetings or communication with a child, the adult met or travelled with the intention of meeting the child and committing a “relevant offence”.

The order making power is intended to ensure that the list of “relevant offences” remains up to date. For example, if new sexual offences are created or existing offences are amended or repealed, then the schedule could be amended by order to reflect these changes. The order making power could not be used to change the substance of the proposed new offence: the preparatory steps noted above would always need to be undertaken and the accused person would need to intend to commit a relevant offence. Accordingly, the Executive considers that the order making power constitutes a relatively routine power to ensure that the list of offences in the schedule reflects a complete and current range of sexual offences against children and, as such, the negative procedure would seem to be appropriate.

Nevertheless, the Executive will take full account of the Committee’s views on this matter when considering laying amendments for Stage 2 of the Bill. The Executive’s intentions in this regard will be confirmed by Hugh Henry, Deputy Minister for Justice, in due course.

Hugh Dignon
For the Scottish Executive

ANNEX B: EXTRACTS FROM THE MINUTES

JUSTICE 1 COMMITTEE
EXTRACT FROM THE MINUTES
35th Meeting, 2004 (Session 2)
Wednesday 10 November 2004

Present:

Marlyn Glen

Mr Bruce McFee

Pauline McNeill (Convener)

Margaret Mitchell

Mrs Mary Mulligan

Margaret Smith

Stewart Stevenson

Also present: Colin Fox MSP.

Protection of Children and Prevention of Sexual Offences (Scotland) Bill: The Committee considered its approach to the Bill; agreed an initial list of witnesses to invite to give oral evidence, and agreed to hold a seminar with a cross-section of organisations with an interest in the Bill, to seek an informal meeting with the Sheriffs’ Association and to invite members of the Scottish Executive bill team to an informal meeting in advance of the formal evidence session.

JUSTICE 1 COMMITTEE
EXTRACT FROM THE MINUTES
38th Meeting, 2004 (Session 2)
Wednesday 8 December 2004

Present:

Marlyn Glen

Pauline McNeill (Convener)

Margaret Mitchell

Mrs Mary Mulligan

Margaret Smith

Stewart Stevenson

Apologies were received from Mr Bruce McFee.

Also present: Professor Christopher Gane, adviser to the Committee on the Protection of Children and Prevention of Sexual Offences (Scotland) Bill .

The meeting opened at 11.18 am.

Protection of Children and Prevention of Sexual Offences (Scotland) Bill: The Committee took evidence at stage 1 from—

Hugh Dignon, Bill team leader, and Kirsten Davidson, Bill team member, Scottish Executive Justice Department; Paul Johnston, Senior Principal Legal Officer, Office of the Solicitor to the Scottish Executive, and Lindsey Anderson, Principal Procurator Fiscal Depute, Policy Group, the Crown Office and Procurator Fiscal Service.

JUSTICE 1 COMMITTEE
EXTRACT FROM THE MINUTES
40th Meeting, 2004 (Session 2)
Wednesday 22 December 2004

Present:

Marlyn Glen

Mr Bruce McFee

Pauline McNeill (Convener)

Margaret Mitchell

Mrs Mary Mulligan

Margaret Smith

Stewart Stevenson

Also present: Professor Christopher Gane, adviser to the Committee on the Protection of Children and Prevention of Sexual Offences (Scotland) Bill .

The meeting opened at 10.11 am.

Protection of Children and Prevention of Sexual Offences (Scotland) Bill: The Committee took evidence at stage 1 from—

Tam Baillie, Assistant Director (Policy), Barnardo’s Scotland.

There was a suspension from 11.30 am to 11.35 am. The Committee then took evidence from—

James Chalmers, University of Aberdeen .

Protection of Children and Prevention of Sexual Offences (Scotland) Bill: The Committee agreed to delegate authority in respect of witness expenses to the Convener.

JUSTICE 1 COMMITTEE
EXTRACT FROM THE MINUTES
1st Meeting, 2005 (Session 2)
Wednesday 12 January 2005

Present:

Mr Bruce McFee

Pauline McNeill (Convener)

Margaret Mitchell

Mrs Mary Mulligan

Margaret Smith

Stewart Stevenson

Apologies were received from Marlyn Glen.

The meeting opened at 9.39 am.

Protection of Children and Prevention of Sexual Offences (Scotland) Bill: The Committee considered submissions of written evidence on the general principles of the Bill at stage 1,

Protection of Children and Prevention of Sexual Offences (Scotland) Bill: The Committee took evidence at stage 1 from—

Robert Ovens, Association of Chief Police Officers in Scotland; Douglas Keil Scottish Police Federation, and Tom Buchan, Association of Scottish Police Superintendents;

There was a suspension from 11.39 am to 11.47 am. The Committee then took evidence from—

Gerry Brown, Convener of the Criminal Law Committee; Iain Fleming, member of the Criminal Law Committee, and Anne Keenan, Deputy Director of the Law Reform Department, the Law Society of Scotland.

JUSTICE 1 COMMITTEE
EXTRACT FROM THE MINUTES
2nd Meeting, 2005 (Session 2)
Wednesday 26 January 2005

Present:

Marlyn Glen

Mr Bruce McFee

Pauline McNeill (Convener)

Margaret Mitchell

Mrs Mary Mulligan

Margaret Smith

Stewart Stevenson

Also present: Professor Christopher Gane, adviser to the Committee on the Protection of Children and Prevention of Sexual Offences (Scotland) Bill .

The meeting opened at 10.14 am.

Protection of Children and Prevention of Sexual Offences (Scotland) Bill: The Committee took evidence at stage 1 from—

Rachel O’Connell, Director of Research, Cyberspace Research Unit, University of Central Lancashire;

Hugh Henry MSP, Deputy Minister for Justice, Hugh Dignon, Bill team leader, Kirsten Davidson, Bill team member, and Paul Johnston, senior principal legal officer, the Scottish Executive.

Items in private: The Committee agreed to consider in private at future meetings a draft stage 1 report on the Protection of Children and Prevention of Sexual Offences (Scotland) Bill and a draft report on its inquiry into the effectiveness of rehabilitation programmes in prisons.

JUSTICE 1 COMMITTEE
EXTRACT FROM THE MINUTES
3rd Meeting, 2005 (Session 2)
Wednesday 2 February 2005

Present:

Mr Bruce McFee

Pauline McNeill (Convener)

Margaret Mitchell

Mrs Mary Mulligan

Stewart Stevenson

Mr Jamie Stone

Apologies were received from Marlyn Glen.

The meeting opened at 9.52 am.

Protection of Children and Prevention of Sexual Offences (Scotland) Bill (in private): The Committee agreed to defer consideration of a draft report on the Bill at stage 1.

JUSTICE 1 COMMITTEE
EXTRACT FROM THE MINUTES
4th Meeting, 2005 (Session 2)
Wednesday 9 February 2005

Present:

Marlyn Glen

Mr Bruce McFee

Pauline McNeill (Convener)

Margaret Mitchell

Mrs Mary Mulligan

Stewart Stevenson

Mr Jamie Stone

The meeting opened at 9.38 am.

Protection of Children and Prevention of Sexual Offences (Scotland) Bill (in private): The Committee considered a draft report. Various changes were agreed.

JUSTICE 1 COMMITTEE
EXTRACT FROM THE MINUTES
5th Meeting, 2005 (Session 2)
Wednesday 23 February 2005

Present:

Marlyn Glen

Mr Bruce McFee

Pauline McNeill (Convener)

Margaret Mitchell

Mrs Mary Mulligan

Stewart Stevenson (Deputy Convener)

Mr Jamie Stone

The meeting opened at 10.09 am.

Protection of Children and Prevention of Sexual Offences (Scotland) Bill (in private): The Committee considered a draft Stage 1 report and agreed various changes. It was also agreed that a further draft would be considered at the next meeting of the Committee.

JUSTICE 1 COMMITTEE
EXTRACT FROM THE MINUTES
6th Meeting, 2005 (Session 2)
Wednesday 2 March 2005

Present:

Marlyn Glen

Mr Bruce McFee

Pauline McNeill (Convener)

Margaret Mitchell

Mrs Mary Mulligan

Stewart Stevenson (Deputy Convener)

Mr Jamie Stone

The meeting opened at 9.30 am.

Protection of Children and Prevention of Sexual Offences (Scotland) Bill (in private): The Committee concluded its consideration of the draft Stage 1 report by agreeing various changes.

The meeting closed at 1.05 pm.

ANNEX C: ORAL EVIDENCE AND ASSOCIATED WRITTEN EVIDENCE

38th Meeting 2004 (Session 2) 8 December 2004 (Oral Evidence)

40th Meeting, 2004 (Session 2), 22 December 2004, Written Evidence

Submission from Barnardo’s Scotland

Introduction

Barnardo’s Scotland provides over 60 services for some of the most vulnerable, disadvantaged and excluded children, young people and their families in communities across Scotland. This includes 4 services that are dedicated to working with children and young people with sexually problematic behaviour. In addition, many of our other services also deal with young people who have experienced sexual exploitation.

General Points

Barnardo’s Scotland welcomes the proposed new legislation as a means of extending further protection to young people. The Sexual Offences Act 2003 is already in place in England and Wales and we recognise the importance of UK consistency on this subject through the creation of similar legislation in Scotland.

Barnardo’s Scotland understands that the policy intention of the Act is:

  • to enable arrest and prosecution to be made of an adult on their way to meet a child who has been ‘groomed’ by the adult
  • to enable police to operate covert operations whereby officers could pose as children and entice sufficient information from the suspected abuser in order to bring about a successful conviction

Barnardo’s Scotland considers this to be a balanced piece of legislation in relation to the protection of children versus the infringement of civil liberties. However, there are some general points which Barnardo’s Scotland would wish to bring to the fore:

  • The definition of grooming does not cover those in the same household and we are aware that many instances of sexual exploitation of children occur within the family. Grooming within families, for example - by an uncle, for exploitation by either the relative or an external person will not necessarily be assisted under the proposed new offences. It would have been useful to have considered how this type of behaviour could have been tackled as this limits the potential impact of the legislation.
  • There is a need to continue to raise general public and professional awareness and use high profile educative and preventative campaigns in order to protect children from the process of grooming.
  • It is essential that statutory and voluntary organisations charged with safeguarding children work in cooperation with internet service and mobile phone providers to protect children from the detrimental effects of grooming and sexual exploitation.
  • We welcome the extension of police powers to protect children from sexual harm but would have some concerns about the operation of the legislation where sufficient resources were not available.
  • Barnardo’s Scotland welcomes the legislation in terms of the restriction of perpetrators behaviour. However, we would wish to see equal priority given to treatment interventions with perpetrators. If the intention is to affect change in perpetrators behaviour to ensure the long term safety of children, restriction and intervention are both required.

Specific Points

Q1. Does the new offence set out in Section 1 of the attached draft Bill achieve the objective of ensuring that potential sex offenders meeting or travelling to meet a child following grooming behaviour can be prosecuted?

Barnardo’s Scotland generally agrees that the new offence will help move towards the objective of ensuring that sexual offenders meeting or travelling to meet a child following grooming behaviour can be prosecuted.

Barnardo’s Scotland has concerns that if the police are not adequately resourced, implementing the legislation may be problematic. The legislation only comes into effect at the point where an adult travels to meet or meets with a child – this is a considerable way down the grooming process. In circumstances where the police were following up concerns raised by children or parents, the proposed legislation would require that the police wait until the adult meets or travels to meet with the young person before they will have sufficient reason for arresting them. It is in these cases that the proposed Risk of Sexual Harm Orders (RSHOs) may become a valuable tool.

From Section 1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Bill, it seems that there may be evidential considerations to show that there was intent on behalf of the adult to commit a ‘relevant offence’. While we recognise the inevitable limitations in creating legislation for this new offence, we also take note of the fact that there may be challenges in the presentation of evidence.

Q2. Does the new offence strike the right balance in criminalising activity which involves grooming and then meeting or travelling to meet a child? Or should other activities comprise the criminal offence?

Barnardo’s Scotland does not have suggestions to include any further activities within this criminal offence.

Q3. Is the proposed penalty set at the right level?

Barnardo’s Scotland considers the penalty sufficient but would again highlight the need for intervention with perpetrators. There is a requirement to consider most effective form of intervention with adult perpetrators. It would be useful if the prohibitive aspects of the legislation were complemented with a requirement for offenders to participate in treatment programmes.

Q4. Is 18 the right minimum age for the offender or should it be, for example, 16?

Barnardo’s Scotland has given very careful consideration to this issue and recognises that it poses a dilemma. The age of sexual consent in Scotland is 16 years, yet the proposed legislation is effective from 18 years. This leaves an anomalous position for those aged 16 and 17 years who would not be covered by the legislation as it stands.

Barnardo’s Scotland are aware of young people who present sexually problematic behaviour – most of these young people are under the age of 18 years. In our experience, interventions which occur at the earliest stage possible are more effective in helping to prevent future offending in this type of behaviour. The legislation would create a gap in potentially identifying perpetrators aged 16 and 17 years. Care would need to be exercised in separating out threatening behaviour and normal adolescent romantic exchanges – particularly where the age differences are small. Guidance is required on this so that the legislation remains targeted on those who pose a threat through grooming activity.

Barnardo’s Scotland recommends that the age for the offender be set at 16 with the following conditions:

  • guidance is created which helps draw distinctions between grooming behaviour and normal adolescent ‘romantic exchanges’
  • consideration is given to the role of the children’s hearing system in cases for those aged 16 and 17 years
  • treatment programmes for young offenders are appropriately resourced

Q5. Would Risk of Sexual Harm Orders be a useful measure in preventing sex offences against children?

Barnardo’s Scotland welcomes the potential role of the RSHOs in providing opportunities for the police to intervene and prosecute at an earlier stage in the process of grooming. In conjunction with the offence to meet a child following grooming, the proposed new orders could provide the police with powers to act during the process of grooming. RSHOs would help to increase the limited scope of the proposed new offence in relation to the overall process of grooming.

RSHO’s may be effective in a restrictive sense, but it is essential that any work to refrain the behaviour of perpetrators is reinforced with intervention and support to ensure the maximum success.

Q6. Does the proposed list of trigger behaviour cover all relevant activities that might prompt application for a RHSO?

Barnardo’s Scotland believes that the list of trigger behaviours is wide enough to cover all relevant activities that might prompt application for a RSHO.

Q7. Should the use of Sexual Offences Prevention Orders be extended to allow them to be imposed at time of sentencing?

Barnardo’s Scotland would welcome the extension of Sexual Offences Prevention Orders (SOPOs). It is clear that there will be occasions when it would be useful for a court to impose a SOPO when disposing of an offender, rather than requiring a Chief Constable to make an application for an order.

Q8. Are there any other issues in relation to grooming a child for sexual exploitation that we should take into consideration in the proposed bill?

Barnardo’s Scotland generally welcome the introduction of the Bill. The legislation has the potential to be a valuable tool, but it is not the only way of addressing concerns about internet grooming. The following suggestions are proposed:

  • Barnardo’s Scotland is particularly concerned regarding the support to be given to victims of this type of offence and that these are appropriately funded.
  • Barnardo’s Scotland suggests that attention must be given to the treatment of perpetrators. Punitive deterrents must be reinforced with rehabilitative interventions. It is essential that those who commit or become victim of grooming offences receive suitable treatment if we are to reduce the likelihood of further offences.
  • Barnardo’s Scotland recognises the preventative and education work of Scottish Executive in highlighting the issue e.g. the publication of ClickThinking. Children and young people are rightly encouraged to utilise the internet. As a consequence they require to be alert to some of the threats. However, more could be done in this area – particularly linking education programmes aimed at young people and parents with child protection processes.
  • Barnardo’s Scotland experience is that young people with learning difficulties have represented a high proportion of those referred to our services as both perpetrators and victims of sexual exploitation. Consideration should be given to the types of measures which will be required to support legislation in this area.
  • Barnardo’s Scotland believes there is a continuing need to raise public awareness of the dangers which can arise from children and young people’s unmonitored use of new technologies - press reports have recently kept the issue on the public agenda.

Tam Baillie
Assistant Director (Policy)
Barnardo’s Scotland
15 December 2004

Submission from James Chalmers, University of Aberdeen

Thank you for your letter of the 29th October inviting me to submit written evidence to the Justice 1 Committee on the general principles of the above Bill. My comments are below.

The offence of meeting a child following certain preliminary contact

I note that the Explanatory Notes state that the Bill “introduces an offence of sexual grooming of a person under 16 by an adult aged 18 or over”. I agree that this is something which should be clearly brought within the scope of the criminal law. At present, such activity may be criminal, but the circumstances in which this is the case are not entirely clear, which may result in the police and prosecution authorities being uncertain at what stage they may intervene. The proposed offence would have the merit of drawing clear lines in an area that is currently rather vague.

Any concerns I might have about the proposed offence relate to the manner in which it is framed, as follows:

It should be understood that clause 1 as drafted goes somewhat further than introducing an “offence of sexual grooming”. All that is required is that the adult has “met or communicated” with the child… on at least two earlier occasions”. There is no requirement that these meetings or communications have involved acts of “grooming” in any sense. There is, perhaps, no good reason why the offence should be so limited – to do so would present rather awkward questions of definition – but the Committee may wish to consider the point. Although clause 1 may be aimed at the problem of “sexual grooming”, it is not an “offence of sexual grooming”, but is in fact rather broader.

It also seems to me that it is unclear why the proposed offence should not also cover persons under the age of 18 who engage in grooming activity, and why there is a requirement of at least two earlier meetings or communications. One prolonged meeting or communication might well be of more significance than two brief instances: equally, it is difficult to see why the question of criminal liability where there has been only one single act of “grooming” should turn on the question of whether there has been a prior – perhaps entirely innocent – meeting or communication.

Risk of sexual harm orders

I would be broadly supportive of these proposals and have only two minor comments to make.

I am not clear why the proposed test for the making of an interim RHSO is whether the sheriff considers it “just to do so”. The test is similar to that which has been adopted for interim anti-social behaviour orders (ASBOs) in England and Wales (Crime and Disorder Act 1998 (as amended), s1D(2)), but it seems this test was not considered appropriate for ABSOs in Scots law: see the Antisocial Behaviour etc. (Scotland) Act 2004, s7. For interim ASBOs in Scotland, the court must apply the same test as for a full ASBO, with the modification that the requirement that the specified person has engaged in antisocial behaviour must only have been satisfied prima facie. Adopting a similar test for present purposes would have the benefit of consistency at least, although it is doubtful whether it would lead to any significant difference in the application of the legislation.

It is not clear to me why the court is prevented from making a probation order when a person is convicted of an offence under clause 7 (clause 7(4)). It may be that probation orders would normally be inappropriate in cases where an accused has failed to comply with an RHSO, but it seems rather odd to fetter the court’s discretion entirely given that all other sentencing options would remain available (including admonishment or absolute discharge).

I hope that the above is all clear, but please do not hesitate to contact me if anything requires clarification.

James Chalmers
School of Law
University of Aberdeen
21 December 2004

40th Meeting 2004 (Session 2) 22 December 2004 (Oral Evidence)

1st Meeting, 2005 (Session 2), 12 January 2005, Written Evidence  

Submission from Association of Chief Police Officers in Scotland

I refer to your correspondence dated 29 October 2004 in relation to the above subject, which has been considered by members of the Crime Business Area, and can now offer the following by way of comment.

The internet has had a significant impact on society. For children it offers great opportunities to both communicate and learn and has been widely embraced by them. Alongside the legitimate benefits the internet offers there are potential dangers, the most serious being the activities of paedophiles to use the medium of chat rooms and instant messaging with the intention of “grooming” children for sexual abuse. Against that backdrop members welcome the proposals by the Scottish Executive to bring forward the Bill to strengthen the law in what the Scottish police service acknowledge to be a difficult, demanding and sensitive area. Members acknowledge that there is a need to:

  • Make the internet a safer place;
  • help and safeguard children at risk; and
  • hold perpetrators and those who are a potential threat to account.

The Association has had the opportunity to respond to the consultation on the draft bill and took that opportunity to express some reservations on the potential difficulties in effecting the desired outcomes.

The following comments and observations are offered in response to the three key areas of the proposed legislation.

Grooming

In evidencing the offence of grooming, members agree that the offence at Section 1 will be difficult to prove, although it may provide a basis for prevention or disruption of paedophile activity. 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. It would be inappropriate to discuss, in this submission, the tactics that the police service would consider using to combat or investigate potential offences/offenders.

Risk of Sexual Harm Orders (RSHOs)

RSHOs will provide some means of affecting the behaviour of those sexual offenders whose conduct has not resulted in any convictions. As they are to be applied for by Chief Constables, there will be an impact on forces in terms of identifying offenders and preparing civil cases for the consideration of courts. Forces will then be duty-bound to proactively monitor RSHO subjects for compliance with the conditions of their orders. The demand for resources, particularly for covert methods, may be significant in terms of both people and finance.

Sexual Offence Prevention Orders (SOPOs)

The proposal to extend the use of SOPOs to judges may be expected to generate significantly more orders than currently exist. As with RSHOs, forces would be duty bound to monitor the subjects of orders for compliance, albeit many would already be the subject of general police monitoring as registered sex offenders. However, some increase in resources must be anticipated.

In response to the consultation on the draft bill, members raised concerns regarding the age factors that were being proposed. The minimum age requirement of 18 years for the “adult” perpetrator is inconsistent with Scots Criminal Law. In relation to RSHOs, members agree that the provision of this section could apply to persons who are aged 16 or 17 years; indeed there are occasions when persons under 16 years have been assessed as likely to pose a risk of significant harm. The Association has previously proposed adjustment to the draft bill to take account of these concerns.

The Association welcomes the opportunity to provide evidence to Justice 1 Committee and where required provide exploration and information on the issues commented in this submission.

William Rae
Chief Constable (Hon. Secretary)
Association of Chief Police Officers in Scotland
21 December 2004

Submission from Law Society of Scotland

The Criminal Law Committee of the Law Society of Scotland (“the Committee”) welcomes the opportunity of commenting on the Protection of Children and Prevention of Sexual Offences (Scotland) Bill.

The Committee supports the principle of the bill and agrees with the creation of a new statutory offence to tackle sexual grooming. Although there are a range of common law and statutory offences, which may currently be used to prosecute this type of behaviour, there may be some cases which will not clearly fall within any existing category of offence. It is important that those adults who seek to groom children and meet or travel to meet them with the clear intention of committing a sexual offence can be prosecuted, before any sexual offence takes place.

Section 1 – Meeting a child following certain preliminary contact

Section 1 of the Bill makes it an offence for an adult aged 18 or over to meet intentionally or to travel with the intention of meeting a child under 16 in any part of the world if the adult has met or communicated with the child on at least two earlier occasions and intends to commit one of the relevant offences against that child, either at the meeting or on a subsequent occasion. The offence will not be completed if the adult reasonably believes the child is 16 or over. Whilst the new offence will ensure that potential sex offenders meeting or travelling to meet a child following grooming behaviour can be prosecuted, the Committee would raise a number of matters in relation to the drafting of this provision.

The requirement to meet or have communicated with the child on at least two earlier occasions.

The Committee would question why there is a necessity within the legislation for the accused person to have met or communicated with a child on at least two earlier occasions.

It may be that the grooming could occur during one session and, indeed, that particularly vulnerable children would only require one such session before agreeing to meet the adult concerned. In these circumstances the Committee would recommend that the reference to two earlier occasions should be deleted from the offence provision.

Completion of the offence

The offence is not completed until the adult either intentionally meets the child or travels with the intention of meeting the child in any part of the world. The Committee agrees that there needs to be certainty in the definition of the offence and that the criminal act needs to move from preparation to perpetration before proceedings could be instituted. The definitive act in terms of the offence provision is travelling to meet or meeting the child. Confirmation would be welcomed as to what would constitute “travelling” for the purposes of this offence. Would it be sufficient for the adult to have purchased a ticket signifying an intention to travel or would he or she have to have embarked on the journey before a prosecution could competently be taken? Similarly, if the adult had arranged for the child to travel (rather than the adult) would the offence be constituted prior to the meeting taking place?

Reasonable belief

An offence under section 1(1) will not be constituted unless the adult had a reasonable belief that the child was under 16. The test, as currently drafted, is based on “reasonable belief” but the Committee would question whether this will be determined on the basis of a subjective or objective test. Clarification of this would be welcomed.

Minimum age of the offender

A person will only commit an offence under the bill if aged 18 or over. The Committee can understand why the age of 18 has been chosen and recognises that the prosecution of individuals aged between 16 and 18 who have engaged in sexual activity with those who are, perhaps, slightly under the age of 16 can raise difficult policy considerations. However, the Committee is concerned that the type of conduct which is being criminalised in the Bill could be committed by those in the 16 to 18 age gap without penalty under this measure and that this gap may ultimately be exploited through time. Accordingly, the Committee would prefer to see the minimum age reduced to that of 16.

Section 2 - Risk of Sexual Harm Orders: applications, grounds and effects

The Committee can see the merit in having such an order available as a child protection measure under civil procedure. However, the Committee would question how such orders will interact with the criminal law. Strict protocols would have to be established to ensure that criminal proceedings are given priority and that evidence which would subsequently be used in a criminal prosecution would not be contaminated in any way.

The Committee is concerned that section 2 makes no specific provision in relation to representation of the party against whom the order is sought. It would appear from section 2(4) that the sheriff may make a Risk of Sexual Harm Order on application by the chief constable if he or she is satisfied that the person against whom the order is sought has, on at least two occasions, whether before or after the commencement of the Act engaged in a prohibited activity and that it is necessary to make such an order for the purpose of protecting children generally or any child from harm from that person. No reference is made to the fact that the sheriff should hear parties before making such an order. Given the potential repercussions of making such an order and the fact that such an order may be disclosed subsequently in an enhanced disclosure certificate issued by Disclosure Scotland, the Committee would recommend that provision is made for the party against whom the order is sought to make representations directly to the sheriff before an order or interim order is granted.

The Committee notes that the provisions of section 2(4) of the Bill would appear to have retrospective effect in that conduct which has taken place prior to commencement of the Act can be taken into account when applying for such an order. In these circumstances, would it be open to the court to refuse an application for a risk of sexual harm order in cases where the relevant conduct occurred so long ago that the application may not be regarded as proportionate?

Monitoring

The Committee believes that the effectiveness of the provisions contained in this measure should be monitored in practice to ensure that they continue to meet the purpose of the legislation and protect vulnerable children.

Mrs Anne Keenan
Deputy Director
Law Society of Scotland
7 January 2005

Submission by Scottish Police Federation

Thank you for the opportunity to submit written comments to the Committee prior to the evidence giving session on 12 January 2005.

The Scottish Police Federation (SPF) agrees with the comments made by the Minister for Justice when announcing the consultation on this subject when she said, “There must be no safe havens for sex offenders in Scotland. If we can add to our existing armoury of measures to protect children, then we must do so.”

Paedophiles are often devious, secretive and manipulative individuals who go to great lengths to cover their tracks and avoid detection. They often know the fine details of relevant laws. We are advised by officers working in this area that ‘internet grooming’ is increasing; it often only becomes apparent after an actual sexual offence has occurred or when an adult has become aware of inappropriate communications and, it often involves resource intensive enquiries where technical assistance is required. While the SPF supports the aims of the Bill it has reservations about some of the details and reservations about the ability of the police to deal effectively with the new proposals with the resources currently available.

Section 1 - Meeting a child following certain preliminary contact

Some of the requirements to constitute the offence might often be too difficult to prove. We believe that individual communications might be clearly inappropriate and serious enough to justify an offence in themselves and that a course of conduct such as that proposed in the Bill might be virtually impossible to prove in all but a few cases. As stated above, we see value in the Bill as currently written but we are in effect advocating that ‘sexual grooming’ in itself should become a criminal offence where inappropriate communications between an adult and a child should be a sufficient measure without the requirement to travel or meet being necessary.

Definition of an “adult”

In S.1 (1) SPF would prefer the definition of “adult” to be “A person aged 16 or over” as opposed to “18”. This would be more consistent with other aspects of the criminal law. If the age of the “adult” were to be reduced from 18 to 16, it may be appropriate to also consider the age of the “child” relative to the age of the “adult”.

Communication

In S.1 (1) (a) SPF would prefer the definition, “having met or communicated with a person aged under 16 (the “child”) on at least one earlier occasion” as opposed to “two”. Depending on the nature and content of a single communication it may be perfectly apparent that it is inappropriate and that the adult is intent on committing an offence

Meeting and travelling

In S. 1 (1) (a) (i) and (ii) as stated above, SPF questions whether the offence should include the requirements of “meeting” or “travelling to meet”. In our view the offence should be complete when the “adult” has made an attempt to arrange a meeting.

Section 2 – Risk of sexual harm orders: applications, grounds and effect

SPF agrees that RSHOs would assist in preventing sex offences against children. In S.2 (1) we would prefer if they could apply to a person aged 16 or over as opposed to 18. There have been cases where RSHOs could in fact have been useful for persons under the age of 16 and we believe this should be further considered.

In relation to S.2 (1) (a) we do not believe the provisions should be restricted to a person who has committed a relevant act on two occasions. One such act should be sufficient.

Section 9 – Prevention of sexual offences: further provision

SPF supports the provision to allow a Sheriff to impose a SOPO at the time of sentencing.

Resources

SPF believes that all new laws increase costs for the police. Training, guidance, increased police activity in recording and investigating complaints, increased reports to the Procurator Fiscal, increased time spent in court and increased monitoring of offenders all increase costs.

Douglas Keil
General Secretary
Scottish Police Federation
5 January 2005

1st Meeting 2005 (Session 2) 12 January 2005 (Oral Evidence)

1st Meeting, 2005 (Session 2), 12 January 2005, Associated Written Evidence  

Submission from Association of Chief Police Officers in Scotland

I note from the Financial Memorandum (into Prohibition of Female Genital Mutilation) that few, if any, investigations and prosecutions are expected. In the case of Protection of Children and Prevention of Sexual Offences, the Financial Memorandum suggests that cases are currently prosecuted under e.g. existing lewd and libidinous behavior legislation and relates the difficulty in predicting the number of additional enquiries expected.

In both Bills the Financial Memorandum accurately reflects the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise .

I trust this is of assistance to you meantime.

Peter Forsyth
Staff Officer to the Chief Constable
Dumfries and Galloway Constabulary
24 December 2004

Submission from Association of Chief Police Officers in Scotland

Thank you for your letter of 17 February regarding the Protection of Children and Prevention of Sexual Offences (Scotland) Bill.

In relation to the information that was reported in the Press it would be helpful if I can clarify the position. I was not, as has been reported, advocating that there should be a mandatory custodial sentence for sex offenders. The point I was making was that to best protect the public there was a need to try to change the offending behaviour of those individuals that perpetrate sexual crimes against children and other vulnerable groups. As such I am a supporter of the use of programmes that can be used to try to change the future behaviour or sex offenders. The point I was trying to make was that the sentencing of individuals needed to take account of availability and duration of such programmes. As I am sure you are aware, not all of these programmes need to be delivered within the Prison. However, where an individual was to receive a custodial sentence there does seem to be some merit in that sentence being of a duration that would allow that individual to complete a programme with the hope that that would change their offending behaviour for the future.

As you will appreciate, and I am sure have experienced, our friends in the Media at times take what you have said and present it in a more sensational way than was intended. That said the story as run in the “ Scotland on Sunday” was otherwise broadly reflective of what I had said to the reporter. It was just the emphasis was put in the wrong place and the link to the sex offenders programmes was lost.

To summarise ACPOS is not advocating mandatory custodial sentences for all sex offenders. We acknowledge each case must be judged on its merits, nonetheless sentences should reflect the seriousness of the offence and the impact on the victim. Sex Offenders programmes are important and can significantly improve public safety by addressing offenders future attitude and behaviour.

I apologise for the delay in coming back to yourself and colleagues on Justice 1 Committee in relation to examples where the RSHO may be applied for. I had canvassed my colleagues across the Forces and have recently had to remind them as this was proving more difficult to give you a range of examples. I enclose some examples where staff working in the sex offenders management units believe RSHOs would be applicable.

I trust these are helpful to you.

Bob Ovens
Deputy Chief Constable
Association of Chief Police Officers in Scotland
28 February 2005

2nd Meeting 2005 (Session 2) 26 January 2005 (Oral Evidence)


Footnotes:

[1] Scottish Executive response, Annex 2