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
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