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Public Bill Committee Debates

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

The Committee consisted of the following Members:

Chairman: Hywel Williams
Baldry, Tony (Banbury) (Con)
Bayley, Hugh (City of York) (Lab)
Blunt, Mr. Crispin (Reigate) (Con)
Browne, Mr. Jeremy (Taunton) (LD)
Carswell, Mr. Douglas (Harwich) (Con)
Clegg, Mr. Nick (Sheffield, Hallam) (LD)
Coaker, Mr. Vernon (Parliamentary Under-Secretary of State for the Home Department)
Efford, Clive (Eltham) (Lab)
Grieve, Mr. Dominic (Beaconsfield) (Con)
Hodgson, Mrs. Sharon (Gateshead, East and Washington, West) (Lab)
Holloway, Mr. Adam (Gravesham) (Con)
McDonagh, Siobhain (Mitcham and Morden) (Lab)
Milburn, Mr. Alan (Darlington) (Lab)
Reed, Mr. Jamie (Copeland) (Lab)
Roy, Mr. Frank (Lord Commissioner of Her Majesty's Treasury)
Stringer, Graham (Manchester, Blackley) (Lab)
Wood, Mike (Batley and Spen) (Lab)
Keith Neary, Committee Clerk
† attended the Committee
The following also attended, pursuant to Standing Order No. 118(2):
Beresford, Sir Paul (Mole Valley) (Con)

First Delegated Legislation Committee

Monday 29 January 2007

[Hywel Williams in the Chair]

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

4.30 pm
The Parliamentary Under-Secretary of State for the Home Department (Mr. Vernon Coaker): I beg to move,
That the Committee has considered the draft Sexual Offences Act 2003 (Amendment of Schedules 3 and 5) Order 2007.
First, I welcome you to the Chair, Mr. Williams. We look forward to serving under your chairmanship. I also welcome the hon. Members for Beaconsfield and for Sheffield, Hallam and all other hon. Members present.
The draft order was laid before the House on18 December. I draw attention to an error in the original draft explanatory memorandum at paragraph 7.6. The last sentence should read that the minimum duration of a sexual offences prevention order is five years, not the maximum duration. However, I assure the Committee that it does not have an effect on the order. The Home Office has drawn the error to the attention of both the Joint Committee on Statutory Instruments and the Select Committee on the Merits of Statutory Instruments, and the Office of Public Sector Information website now shows the revised version. The change will also be reflected in the final published version of the document.
The purpose of the order is to amend the lists of trigger offences under schedules 3 and 5 to the Sexual Offences Act 2003, which relate to the notification requirements, commonly referred to as the sex offenders register. The notification requirements have provided the police with an invaluable tool in managing offenders. If offenders were convicted, cautioned or made subject to a finding for a schedule 3 offence, they automatically become subject to the notification requirements—that is, they go on the register—subject in certain cases to a sentencing or age threshold being met. The courts have no discretion in that process: whether an offender becomes subject to the register is entirely dependent on the offender being convicted of a schedule 3 offence and meeting the necessary thresholds.
A person who has been convicted of or cautioned for a schedule 3 offence can also be made subject to a foreign travel order. The aim of the order is to prevent those with a conviction for a sexual offence against a child under 16 from travelling abroad where there is evidence that they may pose a risk of serious sexual harm to a child or children.
Schedule 5 offences differ from those in schedule 3 in that the courts play a role in deciding whether an offender should be made subject to the notification requirements, via the mechanism of a sexual offences prevention order. 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 have a sexual motive. Examples of offences that are already included in schedule 5 are murder and kidnapping.
However, when a schedule 5 offence has been committed, it is open to the sentencing judge or a magistrate at a later date to decide that the offender does pose a risk of serious sexual harm and so make a sexual offences prevention order. The practical effects of a SOPO are to place prohibitions on the offender’s behaviour and to ensure that the offender goes on the register. A SOPO is also available when the offender has been convicted of a schedule 3 offence.
If approved, the order would move three offences from schedule 5 to schedule 3, where the notification requirements operate independently of any court ruling, and would add further offences to schedule 5. In autumn 2005, the Home Office consulted more than 130 organisations, including law enforcement agencies and judicial bodies, as well as those representing the victims of sexual violence and abuse, on how the 2003 Act was working in practice. The consultation included specific questions on whether schedules 3 and 5 needed to be amended. The Home Office also consulted colleagues in Northern Ireland and Scotland. The changes proposed in the order are those that were suggested by organisations such as the Association of Chief Police Officers, the Police Service of Northern Ireland and local multi-agency public protection arrangement participants.
During the passage of the Police and Criminal Justice Act 2006, the hon. Member for Mole Valley tabled an amendment to include certain offences in paragraphs 48 to 50 in schedule 3 to the 2003 Act. The offences, which relate to the abuse of children through prostitution and pornography, are currently listed in schedule 5. At the time, we resisted the hon. Gentleman’s amendment because of the ongoing Home Office review. However, the situation has changed and I take this opportunity to congratulate the hon. Gentleman on proposing those amendments.
The original decision to place the three offences in schedule 5 was taken because we believed that, while detestable, they were not strictly sexual offences, such as rape, but could be motivated by greed. However, we have been persuaded that although the offences may not be strictly sexual in nature, the perpetrators demonstrate, at the very least, a callous disregard for the sexual well-being of children. As such, where certain thresholds are met, it is appropriate that such offenders are required to notify police of their details independently of any decision made by a court. That change in the law was sought by the hon. Member for Mole Valley, and I commend him for his commitment to the matter. No doubt he is pleased with the draft order.
A number of offences that were suggested during the consultation for addition to schedule 5 to the 2003 Act are included in the order. My hon. Friend the Member for City of York and the hon. Member for East Worthing and Shoreham (Tim Loughton) will be aware of the case in York in which a person was convicted of child abduction, but the court did not have discretion to make him subject to the notification requirements. In response to that case and the general concerns raised in the consultation, we are adding two offences of child abduction to schedule 5. I congratulate my hon. Friend the Member for City of York on the campaign he undertook with local people and the local paper to bring about the change in the law. I am sure that the people of York have noted his actions.
We do not consider it appropriate to add the offences of child abduction to schedule 3, which would resultin the automatic registration of an offender where the relevant thresholds are met, because often the perpetrators in such cases have no sexual motive. However, by adding the offences to schedule 5, we will ensure that judges have adequate powers to make offenders subject to the register through the imposition of a SOPO in appropriate cases—that is, when the court deems that a child abduction was sexually motivated.
The draft order will also widen the scope of schedule 5 to include offences that may be indicative of stalking behaviour and which 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 being added to schedule 5 to cover those cases in which, for example,a person with a sexual motive steals a woman’s underwear from a washing line, or breaks into a home to steal underwear from a drawer. The offences of burglary with intent to inflict grievous bodily harm or do unlawful damage are already listed in schedule 5. The common law offence of outraging public decency is also to be added to schedule 5.
I stress that a conviction or caution for a schedule 5 offence will not automatically make an offender subject to the sex offenders register. The courts already have powers to make an offender subject to a SOPO; as a result, the notification requirements for a wide range of offences are already listed in schedule 5. By adding the offences that I have mentioned, we are seeking to ensure that all appropriate offences are covered. Attempts, conspiracy and incitement to commit offences in schedules 3 and 5 are covered by the legislation.
Similar offences are being added to schedules 3 and 5 in respect of Northern Ireland, with the additional offences of riotous, disorderly and indecent behaviour under section 9 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968. The Police Service of Northern Ireland uses that provision, in addition to the exposure offence under section 66 of the Sexual Offences Act 2003, to prosecute individuals for exposure. An equivalent offence has not been added for England and Wales, as there have been no calls to do so.
The draft order does not have effect in Scotland. Scotland has a slightly different system from the one in England and Wales, which fits better with its common law traditions and with the approach of the Scottish courts. The authorities in Scotland have no intention to amend the equivalent schedules.
If the order is approved by both Houses it will come into force 14 days after it has been made, and we shall publicise the change in the law through a Home Office circular. The measure is in line with the Government’s commitment to managing the risk posed by sex offenders. I commend the proposals to the Committee.
4.41 pm
Mr. Dominic Grieve (Beaconsfield) (Con): I welcome you to the Chair, Mr. Williams.
Let me say to the Minister how much I welcome the order. Before we came into the Committee I mentioned to him an oblique question that I was going to ask during our sitting, and he has already answered it.
I particularly welcome the amendments to schedule 3 to the Sexual Offences Act 2003. In his opening remarks the Minister was kind enough to highlight the role played by my hon. Friend the Member for Mole Valley in lobbying extensively for a change in the law. My hon. Friend is very concerned about child pornography, and I share his concern. I have attended meetings with the Metropolitan police and their special child pornography unit, and I am extremely pleased that the Government have acted on the representations that they have received from various parties. Although it may be true that the people involved in such activities are motivated only by greed, the degree of disinhibition and of perverse attitudes required for someone to be willing to participate in such activities for gain—there is clear evidence of a correlation—makes it appropriate that pornography should be part of the provisionsof schedule 3. I therefore welcome the changes unreservedly and I thank the Government for making them.
The second part of the order contains some lengthy amendments to schedule 5, and when I first read the list I wondered whether the boundaries were being pushed too far. In relation to theft, I realised that the only possible example citable by the Minister would be that of a fetishist stealing someone’s clothing or other items; beyond that, it is impossible to perceive any correlation between theft and any sexual offence. Nevertheless, the Minister has made a persuasive case and will no doubt be able to reassure me that, as was made clear in the original legislation, the courts have discretion in such matters. Were the court to exercise that discretion wrongly, the decision would be open to legal challenge, not only through the appeal process but perhaps through judicial review of the decision. In those circumstances I am broadly content to let matters lie and to leave it to the good sense of the judiciary to apply the provisions only when the facts clearly suggest a sexual motive.
The other offences in schedule 5 are largely self-explanatory, particularly on matters such as improper use of public electronic communications networks and the like. It was only the theft offences and, to a lesser extent, the specific burglary offences that do not relate to burglary with intent to rape that caused me a moment’s hesitation on my first reading.
We have made good progress in this area. I cast my mind back to the proceedings on the Sexual Offences Bill, on which there was a cross-party consensus in a Committee of the whole House, and I hope that we achieved good results at that stage. We are building on them now, and I am pleased that the Government have listened to the representations that they have received.
4.45 pm
“I draw the conclusion that you represent a serious risk to children in the future. Had I been able to, I would have sentenced you under the dangerous offender provision, but counsel have told me that these provisions do not apply. Nor can I make any order restraining or prohibiting your conduct under any other provisions that exist.”
Later in the article, the judge was reported to have said that he believed that to be an anomaly. I contacted the judge to ensure that his remarks in court had been correctly reported by the newspaper and subsequently, on 28 April, I wrote to the Home Secretary to ask him to change the law.
The Under-Secretary of State for the Home Department, my hon. Friend the Member for Gedling, replied to me on 16 May, little more than two weeks later. He said that his officials had been asked to consider listing child abduction as a schedule 5 offence under the Sexual Offences Act 2003—that is to say, an offence that would place somebody on the sex offenders register not automatically, but in circumstances in which the judge deemed it to be appropriate.
In his reply, my hon. Friend also told me thatsection 62 of the 2003 Act introduced a new offence of committing an offence with intent to commit a sexual offence. I asked the chief Crown prosecutor for north Yorkshire, Robert Turnbull, whether he had considered prosecuting Mr. Delaney under that provision. In a letter, he told me that he had, but that
“the difficulty in this case was in establishing the intention in the mind of the defendant when he took hold of the victim and attempted to lead her away.”
I communicated to the Minister the prosecutor’s explanation of why he felt it difficult to prosecute under section 62.
The Minister has already told the Committee that the local paper, the York Press, has campaigned vigorously for a change in the law. I congratulate the paper on its campaign. The paper raised the anomaly with the Prime Minister and with the leaders of the Opposition parties. I also pay tribute to the Minister himself. He has reacted to the problem extremely quickly, with great courtesy and with enormous detail. I should also pay tribute to the staff in his private office. Sarah Wilson, in particular, has contacted me on many occasions to inform me of the progress being made. I should also mention the Minister’s official, Matthew Laxton, for the help that he has given me from time to time in explaining the nature of the order and how it will apply.
4.49 pm
Mr. Nick Clegg (Sheffield, Hallam) (LD): I, too, thank the Minister for his detailed and wholly persuasive explanation of the new offences in schedule 5 and the movement of three offences from schedule 5 to schedule 3. Two issues have merited further debate. The first is the placing of burglary with intent to steal and inflict grievous bodily harm or do unlawful damage as a new offence in schedule 5. As a non-lawyer, I think that I understood the exchange between the hon. Member for Beaconsfield and the Minister. Inasmuch as I did, I was comfortable with the explanation provided.
Secondly, we have the three offences that have been moved from schedule 5 to schedule 3 relating to the recruitment or controlling of a child involved in pornography or prostitution. I heard what the Minister said and entirely endorse his view that although those are not strictly sexual offences, those convicted of them have, at the very least, displayed a callous disregard for the sexual well-being of children and should be subject to the automatic strictures and sanctions of schedule 3. To that extent, I support the order.
I think that the Minister expects me to remind him at this juncture—he might not wish it, but he should expect it—that the press has reported recently about the failure to monitor foreign travel orders, which are covered by section 114 of the 2003 Act and can be invoked for persons convicted or cautioned for an offence listed in schedule 3. It is crucial that that change in law is not only made but backed up by the necessary procedures for implementation.
4.51 pm
Sir Paul Beresford (Mole Valley) (Con): This is going to be embarrassing for the Minister. It seems that he is being congratulated all round, which is most unusual. As my hon. Friend the Member for Beaconsfield will recall, co-operation during the passage of the Sexual Offences Bill was such that this debate is, in effect, a repetition of it.
I feel slightly guilty, as I hope my hon. Friend does, that when the Sexual Offences Bill was passing, we had an opportunity to table amendments relating to paragraphs 48 to 50 in schedule 3 and did not do so. We just did not twig. I was a little disappointed when I proposed such an amendment on the Floor of the House in May and it was rejected, as the Minister said. I was a little surprised that it was rejected on the basis that the offence related to greed, because at the end of the day, at the bottom of the pile, is a child or children who have been abused. I am delighted that the amendment will now be made. It is one of a longish list of changes that I have wanted to be made, and slowly those changes are coming through.
My hon. Friend mentioned that we had a teach-in with the Metropolitan police, and that seemed to be a key factor. This is such a murky area that most of us in the normal world do not really understand it, and the teach-in seems to have done the trick. I have already offered the Minister an opportunity for a teach-in, which he has accepted, so I hope that co-operation will be even more accelerated in future.
4.53 pm
Mr. Coaker: I thank Committee members for their welcome of the provisions of the draft order. Sometimes we debate things because there are serious issues and divisions among us, and it is only right and proper that we approach things from different perspectives, but this debate on the safety and protection of children shows Parliament working at its best. Where people can work together to deliver improved legislation to protect children, it is appropriate to do so.
I thank the hon. Member for Beaconsfield for his welcome of the changes to the law and his comments. I offer him reassurance by putting it on the record again that for theft and other offences listed under schedule 5, it is entirely for the court to determine whether it is appropriate to make someone subject to the notification requirements.
It was good of my hon. Friend the Member for City of York to mention others who helped with the provisions of the draft order. I appreciate his comments, and I am sure that they, when they read Hansard, will appreciate them as well. Child abduction is a serious matter. In some cases, it is driven by a sexual motive. As he pointed out in relation to the case he mentioned, the courts must have the discretion to decide whether there was a sexual motive behind an abduction or whether it was to do with a custody battle or other matter. I thank him again for his work inthis area.
I thank the hon. Member for Sheffield, Hallam for his remarks about the changes to the law. I refuse to comment on the other issues he raised except to say that the Government are always determined to put rigour into the application of law. Where more rigour is needed, we put it into practice as soon as possible.
The hon. Member for Mole Valley and I have had many discussions, both formal and informal, on this matter. I know that his motivation is to protect children in all areas, but particularly in relation to the internet. He has shown that, if one perseveres as he has, sensible changes to the law can be made.
I shall not detain the Committee any longer, because I think that there is general agreement that the order will do more to protect our children. There will always be more to be done, but what the draft order is an important step forwards in protecting people from some of the worst offenders in the community.
Question put and agreed to.
That the Committee has considered the draft Sexual Offences Act 2003 (Amendment of Schedules 3 and 5) Order 2007.
Committee rose at four minutes to Five o’clock.

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