Joint Committee On Human Rights Seventh Report


8.Letter from the Chairman to Lord Falconer of Thoroton QC, Minister of State,

Home Office

SEXUAL OFFENCES BILL [HL]

The Committee has carried out an initial examination of the Sexual Offences Bill, and has formed the provisional opinion that the Bill is generally compatible with relevant human rights obligations, subject to four points raised by its Legal Adviser. The Committee would be grateful for your comments on these points. Our starting-point is of course the statement made under s.19(1)(a) of the Human Rights Act 1998; but I should make it clear that the Committee's remit extends to human rights in a broad sense, not just the Convention rights under the Act.

1.  Sexual Touching and Children under the age of 13

Under clause 6 of the Bill, two children aged 12 or less who by mutual consent touch each other in a sexual way would each be guilty of a criminal offence. Where a child aged 13 touches a child aged 12 with the latter's consent, the child aged 13 (but not the child aged 12) would be guilty of a criminal offence. Clause 80 defines sexual touching in a way that would seem to include many activities of a kind in which some children regularly engage, including kissing. Clause 6 would apply to children at an age when many of them are developing and exploring their sexuality. hnposung criminal liability on children in these circumstances engages their right to respect for private life under ECHR Article 8.1. The interference would be justified if it could be shown to advance one of the legitimate aims listed under Article 8.2, and to be necessary in a democratic society for that purpose, i.e. to serve a pressing social need and to be proportionate to the legitimate aim pursued. In the light of these considerations, the Committee seeks your response to the following questions.

1 A.  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?

l B.  Does the Government consider that imposing a potential 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 the children thought to be a proportionate response to it?

1 C.  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. People with mental disorders or learning disabilities

Under clause 33, any person (including a person with a mental disorder or learning disability) commits an offence if he or she intentionally touches, in a sexual way, a person who is unable to refuse because of a mental disorder or learning disability, and the defendant knows or could reasonably be expected to know that the other person is likely to be unable to refuse because of the mental disorder or learning disability. This does not mean that nobody with a mental disorder or learning disability can ever lawfully engage in sexual touching with another person with a similar disorder or disability. It does, however, mean that people with mental disorders or learning disabilities which deprive them of the capacity to choose or to communicate their choices are unable ever to enjoy lawful sexual activity, and that (if they have the necessary knowledge) they might be guilty of an offence if they sexually touch another person with a similar disorder or disability.

This could be regarded as engaging their right to respect for private life under ECHR Article 8.1. In the light of these considerations, the Committee seeks your response to the following questions.

2 A.  Does the Government consider that clause 33 of the Bill engages the right to respect for private life?

2 B.  If you consider that it does, why does the Government consider that criminalizing 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?

3.  Mandatory period of notification to the police of young sex offenders

Under clause 84(2) of the Bill, the period during which the notification requirements apply to a sex offender aged under 18 is half that set in the table in clause 84(1) for adult sex offenders. While a standard period of notification might be acceptable for adult offenders, children and young offenders require special care, both because of the wide variety in levels of responsibility between younger and older children and because the children and young people are likely to be developing fast, mentally as well as physically, during their teenage years.

Article 40.1 of the CRC requires States Parties to recognize children who have violated penal law as having the right to be treated in a way that takes into account the child's age. It is not clear that a provision which treats all children between the ages of 10 and 18 similarly does adequately take account of the individual child's age. As Article 40.4 makes clear, the dispositions available for dealing with child offenders should aim to ensure that 'children are dealt with in a manner ... proportionate both to their circumstances and the offence.' A standard period of notification would not appear to ensure that their treatment is proportionate to their circumstances. In the light of these considerations, the Committee seeks your response to the following question.

3 A.  Does the Government consider that clause 84(3) of the Bill would be compatible with CRC Article 40.1 and 40.4?

4.  Risk of sexual harm orders (RSHOs)

Risk of Sexual Harm Orders and interim RSHOs under clauses 110 and 113 of the Bill could seriously interfere with the freedom of movement and action, for a period of at least five years, of a person who might never have been convicted of any offence. They would be very likely to have a catastrophic effect on people's lives and reputations, engaging the right to a fair hearing under ECHR Article 6 and the right to respect for private life under ECHR Article 8.1. The Committee recognizes the importance of the inclusion of a necessity requirement before a RSHO could be made under clause 110(4) and (6), but notes that the necessity requirement is absent from the provisions relating to interim RSHOs under clause 113. In the light of this, the Committee would be grateful for answers to the following questions. In the light of these considerations, the Committee seeks your response to the following questions.

4 A.  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?

4 B.  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 (2002] UKHL 39, (2002] 3 WLR 1313, HL?

4 C.  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?

4 D.  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?

Finally, the Committee would be grateful for a description of any representations you have received in connection with this Bill in relation to human rights issues, and to what specific points those representations were directed.

The Committee would be grateful for a response to its questions as early as possible, and in any event no later than 24 March.

17 March 2003


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 21 March 2003