2 Other matters arising
18. Although the draft order now remedies the
incompatibility, careful scrutiny of its terms reveals a small
number of more detailed matters in respect of which there is scope
for the draft order to be improved further, and we comment on
those matters briefly here.
The scope of the right of appeal
to the magistrates' court
19. The draft order is intended to confer a right
of appeal to the magistrates' court "in respect of the determination
by the police that an offender must remain subject to the indefinite
notification requirements or that the offender may not make a
further application for review for a period specified."[7]
The chief officer of police who carries out the review of the
indefinite notification requirements has the power to determine
not only that the offender remain subject to those requirements
but also that they do so for a period longer than the 8 years
after which the offender would otherwise qualify for another review.[8]
The chief officer has the power to make such a determination if
he considers that the risk of sexual harm posed by the offender
is sufficient to justify a continuation of the notification requirements
beyond the date of the next review (8 years from the date of the
decision on the first).[9]
20. It is not clear, however, that, as drafted,
the draft order achieves this intention. The right of appeal is
"against a determination of the relevant chief officer of
police under section 91C."[10]
A determination that the notification requirements should continue
for more than 8 years is a determination under section 91B(5)
not section 91C. The fact that the police are only permitted to
exercise the power to extend the period before a further review
when making a determination under section 91C is not enough to
make it clear that a determination empowered by s.91B(5) is made
under s.91C. In order to
ensure that the Government's intention is clear, that the right
of appeal to the magistrates' court can include an appeal against
a postponement of the next review, we recommend that the minister
makes clear that the right of appeal in new s. 91E(1) is intended
to include a right of appeal against a determination under s.
91B(5).
21. It is also not clear from the draft order
what powers the magistrates' court has on such an appeal. We
recommend that the minister make clear that the court has the
power to quash a determination that the offender's next review
be postponed beyond the 8 year period and to substitute a shorter
extended period if appropriate.
Duty to notify victims
22. The draft order requires the police to take
into account "any submission or evidence from a victim of
the offence giving rise to the indefinite notification requirements",[11]
but there is no requirement on the police to notify the victim
that an application for review of those requirements has been
met. In the absence of such a requirement, it is not clear how
the victim of the offence will know that such an application has
been made. In our view this should be an entitlement of the victim
rather than a matter of discretion for the police. We
recommend that the minister make clear that the chief officer
of police will be expected to notify the victim that an application
for review of the requirements has been made.
Police discretion or duty to notify
responsible bodies
23. The draft order provides that the chief officer
of police "may" notify one of the responsible bodies
(essentially the MAPPA agencies) that an application has been
made.[12] It is not
clear why this is a discretion rather than a duty. We accept that
the police should have a discretion as to which responsible bodies
to notify, but as the Order is drafted it is possible that no
responsible body may be informed. We
recommend that the minister make clear that the expectation will
be that the chief officer will usually notify the appropriate
responsible bodies as a matter of course.
Meaning of "risk of sexual
harm"
24. The draft order defines "risk of sexual
harm" to include a risk of "psychological harm to the
public".[13] This
is a potentially very broad definition. We
look forward to ministerial clarification of what is meant by
a risk of "psychological harm to the public."
Practical and effective access
to an independent and impartial tribunal
25. The right of appeal is to the magistrates
court under its civil jurisdiction. The applicant will therefore
be required to pay a fee and may be liable for the costs of the
hearing should the appeal be dismissed. While this is not objectionable
per se, certain questions do arise as to whether there will be
practical and effective access to court for those who cannot afford
it. We
request clarification as to whether, and on what basis, legal
aid will be available, and costs recoverable from central funds
if an appeal is successful.
Guidance to police on how to
determine applications for review
26. The Secretary of State is under a duty to
issue guidance to the police about how they should go about the
determination of applications for review.[14]
The content of this guidance will be important in ensuring that
a proper approach is taken to questions of necessity and proportionality.
However, there is no requirement that the guidance be consulted
on or laid before or approved by Parliament. We
recommend that the Secretary of State's guidance be subject to
consultation and parliamentary involvement commensurate with its
significance.
7 Explanatory Note to the draft order, p.8, explaining
new section 91E of the 2003 Act. Back
8
New s. 91B(5) Sexual Offences Act 2003. Back
9
New s. 91B(4). Back
10
New s. 91E(1). Back
11
New s. 91D(2)(i). Back
12
New s. 91B(8)(b). Back
13
New s. 91B(11)(b). Back
14
New s. 91F(1). Back
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