Select Committee on Home Affairs Appendices to the Minutes of Evidence


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


 
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