APPENDIX 19
Memorandum submitted by The Law Society
The Law Society welcomes this Bill. We believe
it is a thoughtful, wide-ranging and coherent piece of legislation.
The proposals in the Bill were formulated during
the Home Office Review of Sexual Offences Setting the Boundaries
to which the Law Society responded in 2001. The Law Society considers
that this consultation process has been extremely valuable and
hopes that the weight given to the views of consultees will be
repeated in other areas of legislative reform such as mental health,
housing and immigration. This process has led to a Bill that is
well thought out and thorough in its approach, clear in its intentions
and well constructed.
The Society supports the provisions relating
to those with mental disability, although we would like to see
the provisions extended to those with a mental and physical incapacity.
We support the clarification of the law relating
to children, including the offences covering abuse of trust and
the introduction of strict liability offences in relation to children
under 13. However, in some areas it is unclear as to how the legislation
will work in practice where there may be a conflict with child
protection services, such as where there is one child abusing
another or consensual activity between children and where civil
intervention may be more appropriate than criminal proceedings.
We also welcome the creation of new offences
of grooming, pimping and trafficking of humans for sexual exploitation
although we would like further information on how these proposals
will inter-relate with Home Office practise relating to illegal
entrants. For example, will the victims of trafficking be given
leave to remain in the country or just deported? Will there be
adequate support to ensure victims give evidence, and receive
legal advice on the full range of their options for redress and
for their future safety?
REASONABLENESS
The Bill proposes a requirement of "reasonableness"
rather than "honesty" in some defences, including the
belief in consent in rape cases. This means that reasonableness
of the defendants' assertions of the defence is looked at rather
than its honesty.
There is a delicate balance to be struck between,
on the one hand, the need to encourage reporting of offences,
and to ensure that the complainant's interests are properly taken
into account and on the other hand the need to ensure that defendants
are not convicted of serious crimes where there is no criminal
intent.
The Society is considering these proposals in
the light of proposed changes to admissibility of evidence under
the Criminal Justice Bill, particularly changes to the rules relating
to hearsay and to previous convictions. The Society will prepare
detailed briefings on these issues for Committee Stage of the
Bill.
RISK ASSESSMENT
The Society is aware that, increasingly, decision
making in the criminal justice system relies on risk assessment,
whether in making decisions on bail, sentence, mental health disposals
or parole.
However there is no clear or agreed means of
carrying out risk assessments although some agencies have internal
checklists for assessing risk.
In this Bill, there are proposals to tighten
requirements for registration on the Sex Offenders Register, and
there are proposals reforming the procedures for applying for
and granting injunctions against convicted persons who pose a
risk of sexual harm to others.
We question whether the provisions are sufficiently
tightly drawn so as to target those who present a genuine risk
to the public as a whole or to individuals. Blanket provisions
may be so wide that they become a waste of resources, potentially
enabling those who present major risks to slip through the net,
whilst being punitive for those who present no real risk.
REGISTRATION
We have long advocated that registration should
be the result of a risk analysis. If registers are to be effective
in protecting the public only those who present a serious risk
to the public should be registered. Those who do not present a
risk should not unnecessarily be subject to restrictions. For
example we oppose registration applying to those who are cautioned
or who are sentenced to an absolute or conditional discharge.
SEXUAL OFFENCES
PREVENTION ORDERS
These are injunctive measures which may be granted
to restrain the movements of a person convicted of a relevant
(but not necessarily a sexual) offence, to prevent sexual offences
being committed against either the public or named persons. Schedule
Three, which lists the relevant offences, is extremely wide, including
offences relating to aircraft security, arson and assault occasioning
actual bodily harm.
We question the reasoning for such a wide range
of relevant offences and how it is envisaged this will work in
practice. The application for an order is to prevent sexual harm,
so how would evidence of a risk of sexual harm be presented? Will
there be a presumption that a conviction of a violent offence
is evidence of proclivity to commit a sexual offence?
February 2003
| 
