Memorandum submitted by Association of Chief Police Officers (PC 68)



Policing and Crime Bill 2009

Part 2 Clauses 21 - 24

Foreign Travel Orders




1. This memorandum is respectfully submitted to the Committee by Jim Gamble, Chief Executive of the Child Exploitation and Online Protection Centre ('CEOP') and Chair of the Association of Chief Police Officers ('ACPO') portfolio for Travelling Sexual Offenders. Furthermore it is supported by the ACPO lead for Violent and Sexual Offenders, Chief Constable Paul West.


2. This memorandum is directed solely at Clauses 21 - 24 of the draft Bill.


3. In summary, they are welcomed by ACPO insofar as they go. They do not, however, address many of the other significant flaws in the existing law as to foreign travel orders under section 114 of the Sexual Offences Act 2003. Primary amongst these flaws are the qualifying criteria that must be satisfied before an order is made.


4. More generally, we contend that some relatively straightforward amendments could, and should, be made to the range of prevention orders under the Sexual Offences Act 2003 that would improve significantly the ability of the United Kingdom to manage the risk presented by child sexual offenders to children both within the UK and around the rest of the world.


5. We advocate, in particular, removing the jurisdictional limitation of Sexual Offences Prevention Orders ('SOPOs') under section 104 of the Act to offending against children in the United Kingdom. We can see no reason in fact or law why SOPOs should not be extended to the prevention of sexual offending against children abroad by allowing for the regulation of foreign travel and where justified on an indefinite basis.


6. Whilst noting that clause 24 provides some greater obligation on a limited category of offender to surrender passports in order to make certain foreign travel orders effective, we contend (i) that this control of passports of qualifying offenders should be extended on a discretionary basis to any subject of a foreign travel order, and (ii) wider restrictions on the terms on which passports are issued to high risk offenders should be actively reconsidered by Government.


7. Detailed submissions on each of these central themes have already been submitted to the relevant Government departments. This document represents our first comment on the subsequent draft Bill.


The draft clauses


Clause 21: Time Limits


8. We welcome clause 21 as both necessary and overdue. The existing legislation, requiring some evidence in support of the application within the six months prior to the application, was a genuine obstacle to obtaining an order. The requirement was wholly inappropriate in the context of many offenders who are believed (by expert cognitive behavioural therapists) to represent a continuing risk to children (often for life), regardless of evidence within the previous six months. Put simply there may be no 'positive' evidence by way of 'conduct' in respect of an offender remanded in custody for identical criminality in the six months before his release, but this does not preclude the fact that he remains an ongoing and significant risk to children.


Clause 22: Grounds


9. Within its terms this clause is welcome and wholly consistent with the international definition of child as anyone under 18 years of age.


10. We propose additional amendments in terms of 'grounds' below, reflecting our belief that the existing criteria in section 114 are too restrictive.


Applications and grounds: additional proposed amendments

i. Applicants


11. The applicant under section 114(1) is a chief officer in respect of an offender 'who resides in his police area or who the chief officer believes is in or is intending to come to his police area'. This is contended to be too restrictive, and permits an informed (qualifying) offender to manipulate the procedure to his advantage by moving residence between police areas so as to frustrate the process.


12. As a minimum, given the function, powers and role of CEOP in the process of enforcement in this context, the possible applicant should include the Chief Executive of CEOP and he or she should have power to apply for the order in any Magistrates' Court. In many cases the necessary intelligence originates with CEOP and it communicates it to the local force for the purposes of the application. Whilst collaborative arrangements between CEOP and the local force are usual, they should not invariably be necessary, particularly if timescales are short. The chief officer himself must exercise an informed discretion as to making any application (he cannot simply be ordered to make it by CEOP), and this step of itself generates both cost and delay.


ii. Qualifying offenders


13. Application is presently contingent upon the subject being a 'qualifying offender' within section 116. In short, this requires a formal court finding (in practice, other than exceptionally, a criminal conviction) for one of the sexual offences set out in section 116(2). The draft bill does not propose any amendment to these criteria.


14. We believe this is a significant error and contend that application should not be so contingent in either respect. The requirement of a qualifying criminal conviction is too restrictive given the civil nature and underlying purpose of the order. It represents a significant and unwarranted obstruction to child protection. It means a person known and accepted to be high risk cannot be stopped from travelling abroad to abuse children as and until they have been convicted of a qualifying offence.


15. The application should be permitted without a qualifying conviction, and on the basis of all material that would ordinarily be admissible on an application in a civil context. The court would necessarily and properly need to evaluate evidence - including, if appropriate, expert evidence as to cognitive behaviour, 'intelligence' and hearsay - in the ordinary way given the civil standard of proof that should apply. This is no different to the approach taken in child related family court proceedings, and in respect of Risk of Sexual Harm Orders under the Sexual Offences Act 2003.


16. The same observations apply as a corollary to the requirement for 'behaviour since the appropriate date'. This is overly restrictive in the context of offenders who, by the very nature of their sexual behaviour, represent a significant and ongoing risk of committing offences against children.


17. Secondly, if a conviction is a necessary condition precedent, the qualifying offences should not be restricted. It is the conduct that lies behind the conviction that should matter.


18. The result would be purposive and proportionate, and the court would be asking a simple question as under section 114(3)(b), namely whether it is 'satisfied' that a foreign travel order is 'necessary' for the purpose of protecting children generally or any child from serious sexual harm from the defendant outside the United Kingdom'.


19. 'Satisfied' should mean, given the objective of child protection lying behind the order, simply the civil standard of proof as defined by the House of Lords in 2008 in re B. 'Necessary' similarly should take its meaning from the statutory context and purpose: if there is a more than minimal risk of a person committing serious sexual offences against children if they travel then a prevention order is 'necessary' whether or not that person has a prior conviction.


iii. Inter-relationship with Sexual Offences Prevention Orders


20. Additionally, these orders (assuming the existing form is retained) should be available on conviction, as with Sexual Offences Prevention Orders under section 104(1)(b). As matters stand a sentencing court has no power to make the order: it must wait for a separate and subsequent application by a chief officer and (as has been rehearsed) proof of behaviour 'since the appropriate date'.


21. We contend that, within the existing statutory framework, section 104(1)(b) should be imported into section 114.


22. Similarly, we contend that within the existing framework provision should be made for interim foreign travel orders in similar manner to interim sexual offences prevention orders. These can be made under section 109 of the Act in a range of circumstances. An interim foreign travel order may be necessary where there is no qualifying criminal conviction and no other means to secure a court order to prevent travel. It could be made, for example, pending the outcome of an investigation.


Removing the jurisdiction limit applicable to SOPOs


23. Our primary contention, however, is that section 104 of the Act (SOPOs) should be amended to remove the restriction to offending in the United Kingdom. This would be straightforward in practice, principled, and proportionate. It reflects the international nature of this offending, and is consistent with the extra-territoriality achieved by section 72 of the Criminal Justice and Immigration Act 2008.


24. This single step would remedy many of the statutory flaws we have sought to identify. SOPOs could then be imposed as necessary, without the necessity of a prior conviction and without limit of time, to regulate foreign travel by high risk offenders.


Clause 23: duration


25. The extension (from 6 months' to five years' duration) is welcome but insufficient. By contrast SOPOs, directed at UK offending, may be without limitation of time. There is no reason in principle to exclude discretion in the court, when justified on the evidence, to make a foreign travel order on an indefinite basis. There are many self evident reasons for such discretion to exist.


26. It is invidious to prevent a court making such an order when justified to protect vulnerable children abroad from serious sexual harm, when such an order can be made on identical evidence to protect children in the United Kingdom.

Clause 24: surrender of passports


27. We welcome this obligation but, again, would extend the discretion of the Court to require the surrender of a passport in circumstances where a foreign travel order is imposed simply in respect of a limited number of named destinations. The Court should be trusted to exercise such discretion judicially.


Passport control


28. In 2008 ACPO submitted position papers to the Home Office in respect of the withdrawal of passports under the Royal Prerogative for British Nationals convicted of child sexual abuse abroad. Our proposals reflect the apparent success of section 14 of the Australian Passports Act 2005, whereby the relevant Minister may on application by a competent authority cancel, withdraw or refuse to issue a passport where there is considered to be 'potential for harmful conduct'.


29. Such 'potential' includes circumstances where a court is satisfied on reasonable grounds that the individual '...may endanger the health or physical safety of other persons (whether in Australia or a foreign country)'. The legislation is used in practice to deny a passport to, or withdraw passports from, Australians representing a significant risk to children abroad.




Evidence for recommended amendments


(i) Background



30. The Committee will require no persuasion that serious sexual abuse of children is an endemic feature of many foreign countries, amounting in certain cases to nothing less than an international industry.


31. In that context it should be self-evident, amongst other associated duties, that the United Kingdom should take all steps necessary to:


(i) Prevent those at significant risk of committing such intrinsically serious sexual offences from travelling to these vulnerable countries, (referred to hereafter as 'offenders'), and


(ii) Repatriate compulsorily UK citizens in this category either (a) for prosecution in the UK for extra-territorial offending where no local prosecution was practicable (a common situation), or (b) where such a requisite risk of future harm to children is shown to exist, but no substantive offence has yet been committed.


32. These international obligations are self evident because the serious sexual abuse of children abroad by UK citizens is manifestly unacceptable. The obligation to take all proportionate steps to prevent it, and to prosecute it effectively where it has occurred, are a corollary of international conventions, including under the United Nations Convention on the Rights of a Child 'to protect children from all forms of sexual exploitation and abuse,'[1] and similar provisions within the 2007 Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse. Article 1.1.c of the Convention states that one of the purposes of the Convention is 'to promote national and international co-operation against the sexual exploitation and sexual abuse of children'.


33. The United Kingdom is a signatory to the 2001 Stockholm Declaration and Agenda for Action at the World Congress Against the Commercial Exploitation of Children, committing signatories to combating so-called 'child sex tourism'.


34. The unhappy reality is that whilst extensive and continuing attempts are being made by UK law enforcement agencies with their extra-jurisdictional equivalents, and as between the UK and certain Governments (such liaison often directly involving relevant international charities), to identify, prevent and prosecute extra-jurisdictional offending, for a wide range of practical and legal reasons such prosecutions are rare.


35. In the short to medium term preventing those identified as a significant risk of committing such offences from travelling abroad in the first place is the single most effective measure that may be taken and far more likely to disrupt offending, and thereby prevent harm, than measures taken once the offender has left the UK.


36. The Committee may be assisted by a summary of some of the central features of the existing evidence as to extra-jurisdictional sexual offending against children and the effectiveness (or not) of existing prevention orders. This is necessarily a bare summary of much more detailed empirical data.


ii. Foreign offending and access to children


37. According to the Foreign and Commonwealth Office, in the calendar year 2007 some 86 British Nationals sought Consular assistance following arrest for sexual offences relating to children. The Committee will note that this is the number seeking such assistance: many arrested for such crimes for obvious reasons will not do so.


38. Section 72 of the Criminal Justice and Immigration Act 2008 created extra-territorial liability for sexual offending in this category, which was a welcome amendment. To be effective, rather than theoretical, however, other changes are required.


39. There is no obligation on other countries to notify convictions to the UK, and even within the EU certain member States are yet to engage fully in the European Union Framework Agreement for the Exchange of Criminal Records. Spain - a disproportionately popular destination for those subject to the notification requirements of the SOA 2003, with an age of consent of 13 years' - only passed reforms in 2008 to permit exchange of conviction data, and this on a non-retrospective basis.


40. It follows that, in many instances, even where an extra-jurisdictional conviction has occurred, either the offender will be free to travel other than to the UK, or will return to the UK and the UK authorities will be ignorant of the risk represented and not obtain any prevention order.


41. Additionally, such offending routinely occurs in countries where conviction is unlikely in the context of the inherent weaknesses in the systems of criminal justice. Even where convictions result, many countries provide for extended periods - measured in years - on bail pending appeal. The local jurisdiction thus offers little by way of deterrent to, or practical enforcement against, the British offender.


42. Only a limited number of countries maintain formal lists of those disqualified from working with children. Access to children in the context of employment is manifestly easier in certain EU countries than others. There is no procedure in place to enable organisations overseas to apply for Criminal Records Bureau (CRB) checks on UK nationals they are seeking to employ, and many vulnerable countries lack equivalent vetting procedures entirely. UK issued disqualification from working with children orders and SOPOs to the same effect are not effective in law outside the UK.


43. In terms of travel patterns, ACPO data suggests that registered sex offenders travel in numbers disproportionate to the general public to countries including Thailand, Spain, India, Cambodia and the Philippines. Importantly, registered sex offenders are limited to those subject to the notification requirements of the Sexual Offences Act 2003 that actually notify travel, which obligation is in any event only imposed on those with convictions after 1997 still subject to the notification requirement which can be time-limited. No one convicted only prior to 1997 is subject to the statutory notification requirement.


44. Further, the notification requirements only require the first destination to be stated: onward travel from relatively innocuous initial destinations may be disguised or simply not stated. The requirement in the proposed changes to the notification requirements, namely to notify all foreign travel, rather than that of three days or more, is welcomed.


45. We would welcome a more extensive notification period for practical reasons and in any event a requirement to notify all intended countries on an itinerary. These may be matters falling strictly outside the Bill.


Patterns of travel and access to children


46. We observe that the vast majority - 70% - of 'missing' registered high and very high risk sex offenders subject to notification requirements and located by CEOP in 2007-2008, had travelled abroad whilst missing. Countries of destination were again disproportionately those known to be vulnerable from this category of offending. Similarly, data from UK Police Forces suggests that 54% of non-compliant offenders for the same period were abroad.


47. Simple breach of such notification requirements will not provide a basis to extradite an offender if such is identified abroad: in parenthesis, this is one practical reason that we invite a more pro-active approach in terms of passport control.


48. As Sullivan and Beech found in 2002, 'voluntary organisations working with children ....make an attractive setting for those who wish to create opportunities to sexually abuse children'. As already stated, the local charity cannot access the relevant records held by the CRB. Many offenders remain resident extra-jurisdictionally in this context and are able to abuse children sexually on an extended basis. The UK authorities are often aware of this activity but have no legal recourse to require such offenders to return to the UK.


49. In 2008 the ECPAT UK report 'Return to Sender' estimated that since 1997 only five prosecutions have arisen in respect of extra-territorial sexual offending against children by UK citizens. This is manifestly unacceptable, but equally reflects the realities of securing evidence abroad for use within the UK in this context. The most effective solution is to identify those that represent a significant - which in this context, namely preventing serious sexual abuse of children, must mean more than minimal - risk of committing such offences from travelling in the first place. We believe that this is not only necessary but proportionate.


iii. Foreign Travel Orders under the Sexual Offences Act 2003


50. The figures demonstrate that the existing statutory scheme for securing a foreign travel order has simply not operated as intended in practice. On 22 October 2007 the Ministry of Justice published figures based on data maintained under the Multi Agency Public Protection Arrangements ('MAPPA'). From the date such orders became available (1 May 2004) these showed a single FTO in 2004/5; a single FTO in 2005/6; and only three in 2006/7.


51. Whilst it is not possible to quantify precisely the numbers of high-risk offenders travelling abroad in this period, on any view the number is likely to be measured in hundreds. These figures for FTOs accordingly speak for themselves, and are a matter of genuine longstanding concern both to us and other informed third-sector stakeholders and professional practitioners. The low numbers obtained do not, we believe, reflect a lack of commitment on behalf of chief officers of police to the risk they are designed to address but, rather, fundamental flaws in the structure of the legislation.


52. In this context we comment on the existing draft clauses and set out the above additional suggestions for consideration.




53. It appears to us clear that in terms of those satisfying this test, namely those suspected on reasonable grounds to represent a significant risk of committing serious sexual offences against children abroad, the moment has arrived for a straightforward statutory scheme that promotes child protection proportionately with individual rights. The existing legislation appears to place artificial and unnecessary barriers in the way of effective enforcement and child protection.


54. For such a person foreign travel is surely a privilege not a right, and a privilege that should be regulated through prevention orders that are fit for purpose, coupled with effective passport control where appropriate. The conduct of such persons abroad significantly damages the national reputation.


55. The matters rehearsed are a distillation of wider material. We are likely to make further representations during the future passage of the Bill and in respect of the secondary legislation directed at the associated notification requirements.


February 2009

[1] UNCRC (1989) Art 34