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Sexual Offences Act 2003 (Amendment of Schedules 3 and 5) Order 2007

Volume 688: debated on Wednesday 24 January 2007

rose to move, That the Grand Committee do report to the House that it has considered the Sexual Offences Act 2003 (Amendment of Schedules 3 and 5) Order 2007.

The noble Lord said: Before I begin in earnest, I should draw the Committee’s attention to a slight but important error in the Explanatory Memorandum at paragraph 7.6. The last sentence should read,

“The minimum duration of a sexual offences prevention order is five years”,

rather than the “maximum” duration, which is a bit of a difference. However, this does not affect in any way what the instrument seeks to achieve.

The Home Office drew this error to the attention the Joint Committee on Statutory Instruments and the Select Committee on the Merits of Statutory Instruments, both of which were content for this to be corrected but asked that a revised version should appear on the OPSI website—which it does—and that the change be reflected in the final published version of the Explanatory Memorandum.

The instrument seeks to amend the lists of offences in Schedules 3 and 5 to the Sexual Offences Act 2003, which relate to the notification requirements, commonly referred to as the “sex offenders’ register”. In brief, any offender convicted, cautioned or made subject to a finding for an offence listed in Schedule 3 automatically becomes subject to the notification requirements—that is, they go on to the register—subject, in certain cases, to a sentencing or age threshold being met. There is no role for the courts in this process and it is not dependent upon an order from a judge.

A person who has been convicted for an offence listed in Schedule 3 can also be made subject to a foreign travel order where the conditions are met. A conviction, caution or finding for a Schedule 5 offence does not result in automatic sex offender registration because, unlike the offences listed in Schedule 3, the offences in Schedule 5 are not inherently sexual although they could possibly have a sexual motive or connotation. However, where someone is convicted of a Schedule 5 or a Schedule 3 offence, there is discretion for a presiding judge—or a magistrate at a later point—to decide whether the offender poses a risk of serious sexual harm and so make a sexual offences prevention order. The effect of a sexual offences prevention order is to place prohibitions on the offender’s behaviour as well as ensuring that they go on the register.

The instrument seeks to move three offences from the list of offences in Schedule 5, where discretion is afforded to the courts in relation to making an individual subject to the notification requirements, to Schedule 3, where the notification requirements operate independently of any court ruling. The instrument also seeks to add further offences to Schedule 5.

Home Office officials have undertaken a review of the list of offences in Schedules 3 and 5 to ensure that the right offences are included and that they are placed in the right schedule. As part of the review, the Home Office took the opportunity to consult more than 130 organisations, including law enforcement agencies and judicial bodies. The offences to be added by the instrument are those which were specifically recommended by consultees.

During the passage of the Police and Criminal Justice Act 2006—of which the noble Viscount, Lord Bridgeman, in particular, will be aware—amendments were tabled to include the offences under Sections 48 to 50 of the 2003 Act in Schedule 3. The offences related to the abuse of children through prostitution and pornography. Currently those offences are listed within Schedule 5.

The reason we resisted the amendments at the time was because the Home Office was carrying out a broader review of the schedules. Originally, the decision to place the three offences on Schedule 5 was taken because we believed that those offences, while undoubtedly unpleasant and despicable, were not strictly sexual offences—unlike, say, rape—but rather they could be motivated by a number of factors such as simple greed. However, I recognise that while it may be true that these offences need not necessarily be strictly sexual in their nature, their perpetrators demonstrate, at the very least, a callous disregard for the sexual well-being of children. They pose a threat and so will require the monitoring that being made subject to the register will bring.

I am grateful to noble Lords on the Benches opposite for raising this important issue in the past and for generating debate more generally in the House. I am pleased to say that the instrument proposes that those three offences are moved from Schedule 5 to Schedule 3 to the 2003 Act.

As I have mentioned already, we have had a long consultation with key partners and, as a result, a number of offences are being added to Schedule 5. First, we are adding two offences of child abduction. This is in response to a general concern and also to a particular case in York where an offender was convicted of child abduction. The offence was not listed in Schedule 3, so the offender did not become subject to the notification requirements as a result of his conviction. As the offence was not listed in Schedule 5 either, the judge did not have any power to consider making a sexual offences prevention order, which would have had the effect, among other things, of making the offender subject to the notification requirements for the duration of that order.

We do not feel that it would be appropriate to add the offences of child abduction to Schedule 3. Although they are serious offences, as many cases arise in the context of custodial disputes, those offenders—usually a parent or guardian—may not warrant automatic registration. However, by adding the offences of child abduction to Schedule 5, we are ensuring that judges have sufficient powers to make offenders subject to the register in cases where they deem that the child abduction had a sexual motive.

We have also sought to include a group of offences in Schedule 5 which may be indicative of stalking behaviour and may increase the risk of sexual harm. The offences are harassment, sending indecent articles by post and sending indecent messages. Theft and burglary with intent to steal are also being added to cover stalking behaviour where, for example, a person with a sexual motive steals a woman’s underwear from the washing line or breaks into a home to commit a similar act. The offences of burglary with intent to inflict grievous bodily harm or to do unlawful damage are already listed in Schedule 5. We are also adding the common law offence of outraging public decency to Schedule 5.

The list of offences in Schedule 5 was originally drafted to be consistent with the list of violent offences in Schedule 15 to the Criminal Justice Act 2003. However, we have since formed the view that it is not necessary for these schedules to mirror each other in their entirety as they serve two distinct purposes. That is why we are making the changes to Schedule 5 with the aim of better protecting the public from sexual harm.

I should stress that a conviction or caution for a Schedule 5 offence will not automatically make someone subject to the sex offender register. Taking an example already mentioned, in a case of child abduction where the child was taken in the context of a custody dispute, it is unlikely to be appropriate for the offender to be made subject to a sexual offences prevention order, and consequently the register, unless the court was satisfied, among other things—as it might be if there was in fact a sexual motive—that such an order was necessary for the purposes of protecting the public or any particular members of the public from serious sexual harm from the offender.

The courts already have powers to make offenders subject to sexual offences prevention orders and, as a result, the notification requirements, for a wide range of offences already listed in Schedule 5. By adding the offences mentioned, we are seeking to ensure that all appropriate offences are covered. Attempts and conspiracy to commit offences in Schedules 3 and 5 are equally covered.

Similar offences are being added to Schedules 3 and 5 in respect of Northern Ireland, although Northern Ireland is also adding the offence of riotous, disorderly and indecent behaviour under Section 9 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968. This is being added because the Police Service of Northern Ireland occasionally uses this provision to prosecute individuals for exposure in addition to the exposure offence under Section 66 of the Sexual Offences Act 2003. We are not adding an equivalent offence for England and Wales and there have been no requests that we do so.

This instrument does not have effect in Scotland. Scotland has a slightly different system from that in England and Wales which fits better with its common law traditions and the approach taken by the Scottish courts. Scotland has no intention to amend its equivalent schedules at the current time.

With the experience of how the Sexual Offences Act 2003 has worked in practice, and having taking on board comments from those involved in its operation, we are keen to ensure that the courts and police have the right and appropriate powers to deal with sex offenders. The draft order aims to do just that. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Sexual Offences Act 2003 (Amendment of Schedules 3 and 5) Order 2007. 5th Report from the Statutory Instruments Committee.—(Lord Bassam of Brighton.)

We support the making of the order. I am most grateful to the Minister for his very comprehensive explanation.

My noble friend Lady Anelay tabled amendments at the Committee and Report stages of the Police and Justice Bill last year to achieve the objective provided by this order. It goes wider than the provisions of my noble friend’s amendment, but does so in a way that we can support.

My noble friend has asked me to put on record her thanks to the staff in the office of the Minister, Mr Vernon Coaker, for their courtesy in writing to her before Christmas to alert her to the fact that the order would be tabled on 18 December.

Sections 48 to 50 of the Sexual Offences Act 2003, which make provision for the offences of recruiting or controlling a child involved in pornography or prostitution, are not prescribed for the purposes of notification requirements under Part 2 of that Act. These sections are not being used by the police and prosecutors because they do not have the notification that applies to most of, if not all, the other provisions relating to the abuse of children. There is no valid reason why people convicted of such an offence should not be required to notify the police of their details because they are directly involved in the abuse and exploitation of children and need monitoring and risk assessment.

My noble friend explained in Committee on 11 July 2006—at col. 619 of the Official Report—that when the Sexual Offences Act 2003 passed through both Houses we, on this side, had missed that point. Without a departmental team behind us, it is perhaps not too surprising that we did not pick up on this omission. However, as soon as the problem came to light, we resolved to persuade the Government to rectify it. The prime mover of these matters was my honourable friend Sir Paul Beresford, and I pay tribute to his untiring work on these and other related matters.

When we debated these matters last year, the Government persuaded us that we should not press the question to a vote as they were carrying out a review on how the Act was operating, as the Minister has explained in some detail. As a consequence of that review, the Government are bringing this order before the Committee today.

We accept that the order will help to fulfil the policy objectives of the Sexual Offences Act 2003 in that it will assist in public protection, the prevention and detection of sexual offences and the monitoring and management of risk posed by sex offenders. Even if there is no wide usage of these powers, it is right that they should be added to the statute book. We are aware of public concern regarding the risk posed by sex offenders, and that risk should be reduced and managed as thoroughly as possible. We support the making of the order.

I, too, thank the Minister for introducing the order. We did not comment on the amendment moved during the Committee stage of the Police and Justice Bill by the noble Baroness, Lady Anelay, but we believe that the offences listed in the order are serious enough to warrant notification. We therefore support the order.

We seem to have a comity of view across the Committee, which of course is highly desirable, and I am grateful for that consensus. I am also grateful for the noble Viscount’s gracious remarks. The Government were very pleased with the outcome after the noble Baroness, Lady Anelay, tabled her amendment. Clearly, it has sparked further consideration and I think that we now have something which not only is workable but covers all bases. I am also grateful for the support of the noble Baroness, Lady Harris, on this issue.

On Question, Motion agreed to.