6. Preventative civil orders
53. As well as reforming the law on sexual offences,
the Bill also deals with sexual offenders. We have focussed on
the proposal to create three new civil orders: 'Sexual Offences
Prevention Orders', 'Foreign Travel Orders' and 'Risk of Sexual
Harm Orders'. Our attention was drawn, in particular, to the Risk
of Sexual Harm Orders (RSHOs), which—unlike the other orders—may
be obtained against persons who have no previous convictions for
sexual, or any other, offences.
54. If implemented, it will be possible for "the
police to apply to a Magistrates' Court in respect of a person
over the age of 18 who has on at least two occasions engaged in
sexually explicit conduct or communication with a child or children
and there is reasonable cause to believe that the order is necessary
to protect a child or children from harm arising out of future
such acts by the defendant".[75]
The court order will be able to prohibit the defendant from doing
anything described in the order, but only so far as it is necessary
to do so "for the purpose of protecting children generally
or any child from harm from the defendant" (now in Clause
121(6)).
55. Liberty has described these orders as "an
affront to any notion of traditional British justice," in
that they "permit the badge of paedophilia and accordingly
broad and ill-defined 'prohibitions'…to be placed upon a
person who has never been convicted of any criminal offence. No
criminal offences need even be anticipated".[76]
The Joint Committee on Human Rights (JCHR) has also expressed
concern, highlighting the point that such orders "would be
very likely to have a catastrophic effect on people's lives and
reputation". [77]
56. We note, however, that the Guidance on Risk of
Sexual Harm Orders, which has been published in draft, confirms
that whilst these are civil orders the burden of proof will be
to the criminal standard of 'beyond reasonable doubt'.[78]
In addition, the guidance states that:
"The RSHO should not be used as a substitute
for the criminal offence, but applies in circumstances where the
behaviour of the adult gives reason to believe that the child
is at risk from the defendant's conduct or communication and intervention
at this earlier stage is necessary to protect the child."[79]
57. When we asked whether these new orders were necessary,
Jan Berry (Chair of the Police Federation) told us that:
"There must be some occasions where this would
be an extremely useful order but I think there are probably other
avenues which can be taken to produce exactly the same thing.
I tend to think it may well be classed as overkill. I can think
of a few occasions when that might be useful, but, when you start
looking at human rights legislation and the like for people not
having any prosecution and conviction, to have an order of this
nature I think would probably be against human rights legislation."[80]
58. Whilst we accept the need for Risk of Sexual
Harm Orders (RSHOs), we recommend that their use be carefully
monitored by the Home Office and the numbers reported annually
to Parliament.
59. One point that puzzled us was why it was felt
necessary to require that these orders be made for a fixed period
of at least five years (now Clause 121(5)(b)). We put this
to the Minister and his officials during our oral evidence sessions.
A Home Office official first explained that "the orders can
be varied or they can be discharged or appealed against. If you
could convince the court that the risk of causing serious sexual
harm had gone then somebody could apply for the order to be discharged".[81]
When we pressed the issue, by highlighting that the onus would
be on the defendant to apply for a variation or discharge, Hilary
Benn, Parliamentary Under-Secretary in the Home Office, said:
"That is true as far as the way the order works
is concerned. There is a right of appeal if circumstances change."[82]
60. We recommend that Clause 121(5)(b), which
requires a RSHO to be made for a fixed period of at least five
years, be deleted from the Bill. The courts should be given discretion
to make whatever length of order is needed to protect a child
or children from harm.
61. The JCHR has also expressed concern about the
criteria for making an interim order,[83]
which does not require the court to satisfy itself that "it
is necessary to make such an order for the purpose of protection"
(as required for a full order). Consequently, it will be possible
under Clause 113 (now Clause 124) to make an interim RSHO simply
on the basis the "court considers it just to do so".
62. We also believe that the grounds for making
an interim RSHO should match more closely the grounds for a full
order and recommend that the Bill be amended accordingly.
75 Explanatory Notes, referring to the introductory
print of the Bill. Back
76
Ev 82 Back
77
Joint Committee on Human Rights, Seventh Report of 2002-03, Scrutiny
of Bills: Further Progress Report, HC 547/HL 74 Back
78
Home Office, Provisional Draft Guidance on Risk of Sexual Harm
Orders, March 2003, para 24. This is in line with the House
of Lords' decision in R (McCann) v. Crown Court of Manchester
[2002] UKHL 39; [2002] 3 WLR 1313, relating to Anti-Social
Behaviour Orders. Back
79
Home Office, Provisional Draft Guidance on Risk of Sexual Harm
Orders, March 2003, para 12 Back
80
Q 91 Back
81
Q 183, David Ford Back
82
Q 184 Back
83
Joint Committee on Human Rights, Seventh Report of 2002-03, Scrutiny
of Bills: Further Progress Report, HC 547/HL 74 Back
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