Appendix 2: SEXUAL OFFENCES BILL
Memorandum from the Home Office
1. This memorandum is submitted by the Home Office
in response to the letter from the Chair of the Joint Committee
on Human Rights to Lord Falconer dated 1 8th March 2003 requesting
answers to a number of questions in relation to the Sexual Offences
Sexual touching and children under the age of
Does the Government consider that making children
under 13 potentially criminally liable for consensual kissing,
under clause 6 of the Bill, would serve a legitimate aim under
ECHR Article 8.2? If so, what is the aim?
Does the Government consider that imposing criminal
liability on children under 13 in such circumstances would address
a pressing social need, and would be proportionate to the aim
pursued? If so, what is the pressing social need, and why is criminalizing
children thought to be a proportionate response to it?
Does the Government consider that imposing a potential
criminal liability on children aged 13 for kissing children aged
12 or under with the consent of the latter would serve a legitimate
aim, and be a proportionate response to a pressing social need?
If so, why?
2. We should like as a background to our response
to draw the Committee's attention to the fact that the Government
is not changing the law by including consensual sexual kissing
between two 12 year olds within the scope of the criminal law.
Both would currently commit an offence of indecent assault (sections
14 and 15 of the Sexual Offences Act 1956 (the 1956 Act)), since
a child under 16 cannot consent to an indecent assault. The Government
is not, however, aware of any prosecutions concerning consensual
sexual kissing by 12 year olds.
3. The legitimate aim under Article 8.2 served
by clause 6 of the Bill is principally the protection of the rights
and freedoms of others. The Government considers that children
under 13 have the right to be protected from all forms of sexual
activity. Arguably, clause 6 also serves the legitimate aim of
protecting morality, but the Government's principal concern is
child protection. It may be that some children close to the age
of 13 have the maturity to understand the nature of sexual activity
but there will be many other children who do not, and the Government
considers that the balance is correctly struck by protecting the
vulnerable. This applies irrespective of the age of the other
participant research indicates that adolescent sex offenders
probably account for up to a third of all sex crime and many of
these will offend against others of a similar age.
4. In addition, by removing the need to prove
lack of consent, clause 6 serves the purpose of protecting children
under 13 from cross~-examination about sexual issues. Without
clause 6, the prosecution would have to prove lack of consent
in a case concerning the non-consensual sexual assault of a child
under 13. The evidence is that children of this age who face cross-examination
about consent inevitably involving cross-examination about their
sexual knowledge and experience can be severely damaged as a result.
5. Of course, any age limit is to some extent
arbitrary, but the Government considers that the age of 13 is
the right place to draw the line and notes that it is well-precedented
as a threshold in sex offence legislation. The offence of sexual
intercourse with a girl under 13 (section 5 of the 1956 Act) carries
a maximum penalty of life imprisonment whereas the offence of
sexual intercourse with a girl between 13 and 16 (section 6 of
the 1956 Act) carries a maximum penalty of two years' imprisonment.
Although the age of the onset of puberty is variable, Setting
the Boundaries commented that the thirteenth birthday was recognised
by society as the entry to teenage years and is therefore a key
milestone in the child's passage towards adolescence and eventual
6. The Government considers the discretion of
the prosecutor is key to ensuring that clause 6 is used proportionately
and the Government intends to make this clear during the passage
of the Bill in Parliament. In exercising his discretion as to
whether or not to prosecute under clause 6, the prosecutor must
always consider whether there is a public interest in prosecuting
and must also, by virtue of the Human Rights Act 1998, consider
whether a prosecution would be compatible with Article 8. Even
where the sexual activity in question is abusive, the Government
considers that a prosecution will in many cases fail these tests
since providing the offender with support and care through social
services may well be more appropriate. This was the line taken
in Setting the Boundaries and it received wide agreement on all
sides. Where the sexual activity is genuinely consensual, is low
level sexual activity and involves two children close to the age
of 13 and of a similar age to each other, the Government expects
that, even where this comes to the attention of the authorities,
it is almost inconceivable that it will be in the public interest
to bring a prosecution.
7. In looking at the proportionality of its proposals,
the Government considered whether to try to make exceptions to
the prohibitions, or to formulate the law in a more targeted way.
It took the view that in dealing with an area of law concerning
children as potential victims of abuse, their protection (including
their rights under the ECHR) should be seen as paramount. Any
approach to dividing the law in this area brought anomalies and
could leave gaps, weakening the present protections afforded to
children. It could also be over complex and lose the simplicity
necessary for the law to be understood and workable. For example,
if it is acceptable in law for two 12 year olds to kiss sexually,
what about a 16 year old with a 12 year old? Where should the
line be drawn in defining acceptable activities? If sexual kissing
is acceptable, what about masturbation? Should there be a distinction
according to whether the masturbation is or is not through clothing?
All such activity could be potentially abusive even if ostensibly
consensual and even if done between children of similar age. The
Government therefore believes the right course is to maintain
the existing prohibitions, offering maximum protection to children,
but with prosecutorial discretion allowed and indeed expected.
8. The Government considers that everything said
above applies equally to the situation where a child of 13 engages
in consensual sexual kissing with a child of 12.
People with mental disorders or learning disabilities
Does the Government consider that clause 33 of the
Bill engages the right to respect for private life?
If you consider that it does, why does the Government
consider that criminalising the behaviour, in the circumstances
outlined above, would advance a legitimate aim under Article 8.2
and would be a proportionate way of responding to a pressing social
need so as to be justifiable under Article 8.2?
9. The Government considers that clause 33 of
the Bill engages the right to respect for private life (see X
and Y v the Netherlands (judgment of European Court of Human Rights
of 27th February 1985)). The legitimate aim pursued is that of
the protection of the rights and freedoms of others. Where a person
does not have the capacity to choose whether or not to engage
m sexual activity or is unable to communicate his choice, the
Government believes that protection from abuse becomes the overriding
issue and that involving that person in sexual activity can never
be defended. The Sex Offences Review which led to Setting the
Boundaries heard extensive evidence to the effect that vulnerable
people are targeted for sexual abuse and that such individuals
are far more likely to become the victims of abuse than those
without such a disability. As a result, Setting the Boundaries
recommended an offence along the lines of clause 33.
10. Where the perpetrator of a clause 33 offence
is himself a person who has a mental disorder or learning disability,
then it seems unlikely he would have the mens rea required by
clause 33(1)(d). But if he did so, the prosecutor would still
have to decide whether a prosecution would be in the public interest.
In the unlikely event that a prosecution went ahead, the court
could find the defendant unfit to plead, in which case he would
not be convicted of the offence, although he could be ordered
to be detained in hospital under the Criminal Procedure (Insanity)
Act 1964 and the Criminal Procedure (Insanity and Unfitness to
Plead) Act 1991 if the jury found he did the act in question.
Alternatively, if found guilty of the offence, he could be convicted
but ordered to be detained in hospital under the Mental Health
Act 1983 if such treatment was considered necessary. In the light
of these procedures, the Government considers the fact that clause
33 applies to perpetrators with a mental disorder or learning
disability to be proportionate to the legitimate aim of protecting
those who are unable to refuse sexual activity.
Mandatory period of notification to the police
of young sex offenders
Does the Government consider that clause 84(2) of
the Bill would be compatible with CRC Article 40.1 and 40.4?
11. The Government considers that clause 84(2)
is compatible with CRC Article 40.1 and 40.4. Although clause
84(2) does not directly differentiate between children of different
ages, the age of the child would have been considered at all stages
in the criminal justice process from the initial decision to charge
to the imposition of the sentence.
12. The police refer all cases involving children
and sexual offending to a Youth Offending Team prior to a decision
being taken on whether to charge the child with an offence. The
Youth Offending Team will undertake an assessment of the child
which will take into account his age, the likelihood of his re-offending,
the impact on the victim and the suitability of alternatives to
the criminal justice system. The Youth Offending Team will recommend
the most appropriate, and proportionate, intervention for the
child but are only likely to suggest proceeding with a prosecution
in the more serious cases. Alternative means of addressing the
offending behaviour will always be the preferred option, particularly
where younger children are concerned. On the basis of the advice
from the Youth Offending Team, the police may pass the case to
the Crown Prosecution Service who will decide whether it is in
the public interest to proceed with a prosecution. Guidance covering
the interaction between the police and the Youth Offending Teams
is covered in the Framework Document for the Crime and Disorder
Act 1998 published by the Home Office in September 1998. In 2002,
the Youth Justice Board also published Effective Practice Guidance
on dealing with young people who sexually abuse which was drawn
up in conjunction with the NSPCC. The guidance stresses the need
for child protection agencies to be involved in the assessment.
13. The courts will then also take account of
the child's age following conviction when considering the appropriate
disposal (Part 4 of the Youth Court Bench Book specifically mentions
the need to take into account the offender's age and maturity
when sentencing). This is important, because, unless the offence
is a serious offence (for example, rape or assault by penetration),
the notification requirements are only triggered for offenders
under the age of 18 where the offender is sentenced to a term
of imprisonment of at least 12 months (see Schedule 2 to the Bill).
The sentencing process therefore determines in many cases whether
or not the child is to be subject to the notification requirements
at all. The term "imprisonment" is short hand because
offenders under the age of 21 are not sentenced to imprisonment
(section 89 of the Powers of Criminal Courts (Sentencing) Act
2000). When dealing with young persons, the courts have available
a number of sentencing options, including Referral Orders, discharges,
fines, Supervision Orders, community orders, Action Plan Orders
and Attendance Centre Orders. Imprisonment, in the form of the
custodial element of a Detention and Training Order, would only
be used where the offence was serious enough to warrant a period
of custody and the court was satisfied that such a sentence was
necessary for the protection of the public. Such orders can vary
in length from four months to a maximum of 24 months, so an order
involving 12 months' detention would only be used in the more
serious cases. It should also be noted that Detention and Training
Orders can only be used for those under 15 (at the date of conviction)
in the case of a persistent offender, and they are also not available
at all for children under 12. This means that where an offence
is subject to a sentence threshold, no child under 12 will be
made subject to the notification requirements.
14. Where the offence is by definition always
a serious one and therefore no sentence threshold applies, the
Government considers that the offending behaviour by that child,
whether aged 10 or 18, is sufficiently serious to justify applying
the notification requirements to that offender. This view is reached
taking into account the fact that the CPS will have taken the
decision to proceed with the charge in the public interest, which
will have included a consideration of the child's age. In such
cases, the requirement to notify will also bring with it access
to treatment programmes and the management of the offending behaviour
by the relevant agencies.
15. The sentencing process also determines the
length of time for which the young offender will be subject to
the notification requirements. As explained above, when sentencing
the offender, the courts will take into consideration the age
of the child. So although the period for which the notification
requirements will apply to the young offender is the same under
clause 84(2) whether that offender is 10 or 18, the court will
have taken into account the particular age of the child and the
circumstances of the offence in passing the sentence that determines
16. When considering this question it is also
important to bear in mind that the notification requirements under
the Bill are an administrative requirement and not a penalty.
They are aimed at ensuring that the police are able to know the
whereabouts of convicted sex offenders who have committed sexual
offences at the more serious level of offending. Their status
as an administrative measure and not a penalty was confirmed in
Ibbotson v UK [19991 Crim. L.R 153, which was heard by the European
Commission of Human Rights, and A damson v UK (1999), an admissibility
decision heard by the European Court of Human Rights. Being subject
to the requirements means that the child must report to the police
station to notify his details, any changes to these and on an
annual basis to reconfirm those details. The information given
to the police is not disclosed to members of the public. The Government
therefore considers that this is a proportionate means of dealing
with young offenders who have committed sexual offences of the
level of seriousness set in the Bill to trigger the requirements.
17. Moreover, the Bill makes available to the
court (at clause 91) the option of making a parental direction
when the offender subject to the requirements is under 18 (or
in Scotland, under 16). The effect of such a direction is to make
a person with parental responsibility for (or in Scotland, parental
responsibilities in relation to) the young offender, responsible
for complying with the notification obligations on behalf of the
child and ensuring that the child attends with him in doing so.
The court will again take into account the age of the young offender
when considering whether or not to make such a direction.
18. Finally, UK compliance with the CRC has been
subject of scrutiny by the UN Committee on the Rights of the Child
on two occasions, most recently in September 2002, and the issue
of a notification period that applies to all young offenders has
not been raised as an issue of concern.
Risk of Sexual Harm Orders
Does the Government consider that an application
for the making of a Risk of Sexual Harm Order or interim order
would involve the determination of a criminal charge for the purposes
of ECHR Article 6?
If not, what does the Government consider would be
the applicable standard of proof in the light of the decision
of the House of Lords in R (McCann) v Crown Court at Manchester
 UKHL 39,  3 WLR 1313 HL?
Does the Government intend that an order could be
made in the absence of the person against whom it is sought? If
so, what procedural protection would be put in place to ensure
compliance with Article 6 requirements, bearing in mind that the
making of an order may do harm which could not be remedied by
a fair appeal or review hearing?
Would it be possible to specify on the face of the
Bill the applicable standard of proof and the need for the hearing
of an application to be inter partes?
19. The Government does not consider that an
application for the making of a Risk of Sexual Harm Order (RSHO)
or interim order would involve the determination of a criminal
charge for the purposes of Article 6, but rather that such proceedings
will be civil for those purposes. The RSHO will share many characteristics
in common with other civil orders which have been upheld as civil
for Article 6 purposes by the courts. These include antisocial
behaviour orders and football banning orders, which similarly
do not require any previous criminal convictions and breach of
which constitute a criminal offence. As with these other orders,
the purpose of the risk of sexual harm order is prevention of
harm and public protection, as opposed to punishment. The Government
is confident that the reasoning behind the decision on civil classification
in the case of McCann referred to in the question applies equally
to the RSHO and interim order and that they will be classified
20. Also in line with McCann, the Government
considers the standard of proof to be applied by the magistrates
court when hearing an application for a RSHO will be the criminal
one. It is not considered necessary to specify this on the face
of the Bill and indeed it would be unusual to do so. The Government
will however make it clear in the guidance accompanying the RSHO
that the criminal standard of proof will apply. This guidance,
in draft, will be available for consideration alongside the RSHO
clauses during the passage of the Bill through Parliament.
21. It is not intended that an application for
a RSHO or an interim order may be made ex parte. The application
procedure for both orders is by complaint to the magistrates court.
This procedure is set out at sections 51 to 57 of the Magistrates'
Courts Act 1980 (the 1980 Act). Once an application is made to
the court, a summons will be sent to the defendant requiring him
to attend the hearing. Although the court has the discretion to
proceed in the absence of the defendant under section 55 of the
1980 Act, the discretion may only be exercised if the defendant
has been given sufficient opportunity to attend. Of course, any
decision to proceed in the absence of the defendant will be amenable
to judicial review.
22. The Government does not intend to specify
on the face of the Bill that the application for a RSHO or interim
order must be inter partes as we consider that this is already
apparent from the provision in clause 110(1) that the application
is by complaint and the relevant sections in the 1980
Act providing that this is an inter partes procedure. The fact
that the procedure is inter partes will however also be made clear
in the guidance accompanying the RSHO, which, as mentioned above,
will be available in draft during the passage of the RSHO clauses