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Lord Thomas of Gresford: Can the Minister indicate what sort of conduct is envisaged by this paragraph in the clause which would cause harm or serious harm and which does not amount to an offence in itself? In this particular instance, I find it difficult to understand. For example, stalking is now an offence. So what particular kind of harm is envisaged that this sex offender order will prevent?
Lord Williams of Mostyn: I am bound to say that I have a certain sympathy with the purpose behind these two amendments. The whole purpose of the proposed new sex offender order is to protect the public, especially its most vulnerable members, and it is tempting to see that as the only consideration. I have to tell the Committee that we have looked long and hard at this definition and there has been much anxious discussion about it. We came to the decision that we should not dilute the test of serious harm. If one looks at the order, it will be seen that we start from the presumption that a person is a sex offender. That covers all offences in Schedule 1 to the Sex Offenders Act 1997 and all disposals, including cautions.
After the commencement of the clause, if an offender acts in such a way as to give cause for concern, that does not necessarily mean a further offence. The behaviour may be unexceptionable if it were not for his past history. I take note of the point made by the noble Lord, Lord Thomas, in that respect. Stalking may be an offence as, indeed, may other forms of harassment. However, the noble Lord and I know perfectly well from a recent notorious case in north Wales, which I shall mention generally only, that one can have the classic example of watching children in a school playground. The activity in itself is, of course, potentially neutral, but with the knowledge of the offender's previous history and activities it no longer remains so. Therefore, what one has here is, I believe, a fair balance. There has to be reasonable cause to believe that an order is necessary to protect the public from serious harm. Of course the paedophile who may be devious, who may have a large number of previous convictions--but, equally dangerous, who may not have a large number of
relevant previous convictions--and who is acting in that way, really needs to be caught by such an order. It would be very difficult to categorise that sort of action as a criminal offence at present, but it needs to be caught.I am happy that the noble Lord posed the question because it is the sort of question with which officials and Ministers have been wrestling for some time. There is no doubt at all about the enormous and well-justified public anger over some recent cases where sometimes the law is powerless, even when children are involved. I believe that that has been a matter of reproach to all of us on all sides of the Committee.
It is indeed a narrow line we are walking and I do not overlook that fact. As the noble Lord, Lord Goodhart, said earlier, we must bear in mind that it is very easy to be benevolent in the human rights context to nice people who are reasonable and as open-mindedly flexible as we all are here. However, it is much more difficult to bear in mind that others also have rights.
Therefore the order sought will be preventive only, but it may prevent an individual from actions which for another individual--as I have indicated--might be neutral. I use the word "neutral" but perhaps a better word is "unremarkable". We must have justification for this measure and we feel that the words "serious harm" constitute the proper level to achieve that. The term "serious harm" is used in the Criminal Justice Act 1991 covering psychological and physical harm. Protecting the public from serious harm under Section 31(3) of the 1991 Act constitutes violent or sexual offences. Although this is not a decision that one can reach with any absolute conviction, we believe that we have the balance about right. It is difficult to achieve a balance here between human rights in their broadest sense and the absolute necessity of protecting, in particular, children. What we have tried to balance is the question of reasonable cause and, on the other hand, serious harm.
We must bear in mind that the police do not have to prove that an order is necessary to protect the public from serious harm; all they have to prove in this regard is that the person has acted in such a way as to give reasonable cause to believe that an order under this section is necessary to protect the public from serious harm. I believe that we have reached a difficult conclusion which is probably the right one. However, I entirely respect what has been said; this is a delicate balance to achieve. We believe that if we take the word "serious" away, that would constitute an undue infringement. We have balanced reasonable cause with the prospect of serious harm. I regret that I cannot accept the amendment. All Members of the Committee who have spoken recognise the problem and are aware of the difficulties. One can only trust that one has achieved the right balance.
The Earl of Mar and Kellie: I support what the Minister has said. I believe that paedophilia is generally untreatable. I also think that any act of paedophilia constitutes serious harm. I question whether there is
anything that a paedophile does which is not serious. Therefore I think it would be wrong even to suggest that such an act is just harmful; it is seriously harmful.
Lord Elton: I wonder whether the Minister can enlighten me on a small point as to the definition of a sex offender, which on the face of it is pretty simple. Is it or is it not the case that sex offences are subject to the Rehabilitation of Offenders Act, in which case there may be people in this category who are not known? That seems to me to affect the way the Bill will work when it becomes an Act. I wonder whether the Minister can tell me that.
Lord Williams of Mostyn: The definition of sex offender is someone who has committed any offence covered in Schedule 1 of the Sex Offenders Act 1997. I always shudder at specific questions from so informed a source as the noble Lord, Lord Elton. My recollection is that the Rehabilitation of Offenders Act relates to the Sex Offenders Act. If I may, I shall research further the specific connection which the noble Lord has mentioned. I shall, of course, write to him as soon as I can.
Lord Henley: I am most grateful for the care with which the noble Lord has responded to my amendment. I entirely take his point about the fine balance as to whether one should include the word "serious". I have listened carefully to what he has to say. I accept that he has made a perfectly good and valid case for including "serious" in conjunction with "harm" on this occasion. For that reason I have no hesitation in withdrawing the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Amos moved Amendment No. 29:
The noble Baroness said: This amendment seeks to ensure that the police consult with the local council and the Probation Service either before applying for a sex offender order or as soon as possible afterwards. Once granted, an order will have implications for the Probation Service, which will be responsible for the supervision of such offenders, and for the local authority, which may have to rehouse the offender or provide other services. We are all aware of recent cases which have shown that the identification of sex offenders in a locality is fraught with difficulty. It is important that all the relevant public agencies are made aware of what is taking place before an order is granted. This would build on the collaborative multi-agency approach which is the consistent theme of the Bill and of the Government's approach to crime prevention. I beg to move.
Lord Falconer of Thoroton: I have real sympathy with the view expressed by my noble friend Lady Amos
It will be the Government's intention to issue guidance in due course which will cover all aspects of consultation. However, we believe that the cases where applications for orders under this section are made should be dealt with on a case-by-case basis. To impose an obligation, for example, to consult a body which has not been involved in the case in question, could merely hold up the process and might impose an unnecessary and over-bureaucratic obligation to consult. Again, not all of those against whom orders are being considered or have been granted will be on probation. Moreover, focusing on one group to be consulted could lead to others being overlooked.
Although the Government are in sympathy with the idea of consultation with all the appropriate agencies, they do not think that the appropriate way to deal with this is by such an amendment or any provision on the face of the Bill. In the light of what I have said, I hope that my noble friend will consider withdrawing the amendment.
Page 3, line 8, at end insert--
("( ) The chief officer shall have regard to any guidance issued by the Secretary of State to provide that as far as is practical he shall consult the council for the area and every probation committee any part of whose area lies within the local government area before applying for an order under this section, and in any case shall consult such bodies as soon as possible afterwards.").
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