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Lord Williams of Mostyn: I too wish to speak to Amendments Nos. 32, 33 and 34. I accept, as I said a moment ago--not least in the context of the European
Convention on Human Rights--that a sex offender order is a serious matter. It should not be sought lightly and can only be justified by the overriding need, which we identify, to protect the public from serious harm. Unfortunately, the reason such orders are necessary--as the noble Earl, Lord Mar and Kellie, and the noble Lord, Lord Goodhart, indicated--is the dismal likelihood, of which we are all well aware, that particular offenders in this category of case will re-offend. It is no good pretending otherwise and I am sure that no one will.That likelihood--again, it is a gloomy assertion that I make confidently--is a near certainty in some cases, as we all know perfectly well. If that is so, and bearing in mind the seriousness of the situation in the context of human rights, we ought to look at a five-year minimum duration for these orders. For the order to be justified at all we should look at a period of at least five years for its continuation. The order should not be sought lightly. It should not be granted where there is not real concern for the protection of the public. The minimum duration ought to be an in-built check that an order is only sought and granted when the situation really demands it. It is therefore intended to be, in part, a safeguard against misuse.
We do not believe that we are fettering the discretion of the courts by setting down such a minimum period. It is a determined acknowledgement of the nature of the orders and the likely victims of continued offending--in other words, the serious harm that they are designed to prevent. I do not pretend that this is an easy decision. It is again a balance and we have tried to get it right.
Lord Goodhart: I hear the Minister's response. We do not wish to press the matter of the minimum period further. However, the fettering of the courts' jurisdiction, without the consent of the chief officer of police, to discharge an order early is one at which we might possibly look again; however, not tonight. I am happy therefore on this occasion to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 33 and 34 not moved.]
Lord Thomas of Gresford moved Amendment No. 35:
The noble Lord said: We heard from the Minister a short time ago that the Rehabilitation of Offenders Act does not apply to sex offenders. By that I understand--no doubt I shall be corrected if I am wrong--that the convictions for sex offenders cannot be spent so that they remain with the offender for the rest of his life.
There is a grave danger that we forever talk in terms of paedophiles, rapists and so forth, forgetting that sex offenders are involved in a wide range of offences from the most serious to the least serious--the youngster convicted at an early age, for example, of an indecent assault which caused little harm. He carries that conviction and is to be termed "a sex offender".
I do not propose to worry the Committee at this time of night with a repetition of the arguments that I addressed on Amendment No. 21. The Solicitor-General appears to be relieved at that. I do not wish to be hyperbolic twice in one evening. However, I ask that the Minister and those advising him consider the argument that I addressed and the possibility of an alteration in the framework which they have so far envisaged. I plead with them to try to justify their position from first principles and not from the record of the previous government in matters of this sort.
I wish to address only one specific matter. Under subsection (8) there could be a jury trial on indictment. But so far from being a protection for the defendant, it would be the reverse. What would the prosecution set out to prove? They would prove that the defendant was a sex offender and thereby reveal instantly to the jury the whole of his chequered past and the convictions he has for sex offences. Secondly, they would prove the existence of a sex offender order which would have been made for unremarkable conduct and which would not remotely constitute a criminal offence or any offence if the person concerned were not a sex offender in the first place. Then they would have to be satisfied that the defendant had been guilty of further unremarkable conduct; so if, for example, the jury were told that he had been standing outside the school playground looking at the children inside, they would be bound to convict him; the conditions would all be fulfilled and he would thereby be liable to a sentence of imprisonment of up to five years.
That is the result of adopting the hybrid approach of having the equivalent of a civil injunction and then bringing in the criminal law to deal with breaches of that injunction. If, instead of doing that, the Government were prepared to follow the path that I have outlined--despite the minor clashes we may have had on that, I hope that will not prevent the Government from considering the arguments put forward--that would be a far better way of approaching the issue and would satisfy many of the problems that the Bill causes.
The Deputy Chairman of Committees (Baroness Lockwood): I have to point out that if this amendment is agreed to, I cannot call Amendment No. 36 under the pre-emption rule.
Lord Williams of Mostyn: As the noble Lord indicated, we have gone over the principle of this construction between the prohibitory order, which is not a criminal order, and the criminal sanction for breach. As cocoa time approaches (though I am told by some noble Lords that by the end of the evening they will be looking forward to something a little better than a cup of cocoa) I hope your Lordships will acquit me of discourtesy if I do not rehearse the arguments which, as the noble Lord recognised, we have already gone over.
Perhaps I may deal with his specific question, because it is a legitimate one, about the Rehabilitation of Offenders Act, which derived from the earlier question from the noble Lord, Lord Elton. The 1974 Act does not apply to sex offender orders; but it applies to sex
Lord Thomas of Gresford: I am sorry to interrupt the noble Lord. Am I right in thinking that if it came to a trial, on indictment the jury would have to be told that the defendant had previously offended in a sexual context?
Lord Williams of Mostyn: It would be a case of adopting a formula between Crown and defence, approved by the judge, a formula with which the noble Lord and I will be familiar in our previous incarnations. The same difficulties arise with the specific offence of being in possession of a firearm within five years of discharge from prison. Notoriously, the courts--prosecution, defence and certainly the judges--bend over backwards to try to have a neutral formula to draw the sting so far as possible. I imagine that that is how this would be dealt with. It is possible to attend to the problem but I do not think one could have a perfect solution in those circumstances. There are many other offences one could think of, though I shall not elaborate them, where similar problems arise.
There is a difference between the position of the noble Lord, Lord Thomas of Gresford, and my position. One of us--I shall not say which--believes the world is flat; the other believes it is round; and I do not think we are going to convince each other.
Lord Thomas of Gresford: Standing as I do on this circular globe, it would be churlish of me to waste the time of the Committee any further because I hope that the sun is going to rise sometime. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 36 to 38 not moved.]
On Question, Whether Clause 2 shall stand part of the Bill?
Lord Hylton: I have listened as carefully as I could to the various debates on this clause. I am still not entirely clear or necessarily happy about some of the wording. The very beginning of the clause reads,
My second worry arises because, if I heard him rightly, at one point the noble Lord, Lord Williams of Mostyn, said--describing the person who would be subject to such an order--that, "He has committed a sexual offence". On another occasion I believe I heard him say, "With or without previous convictions". That opens up a certain area of doubt.
Thirdly, I shall be most grateful if the noble Lord can explain because I have not got a copy of the Sex Offenders Act 1997 here. Perhaps he can explain the meaning of "the relevant date".
Page 3, line 33, leave out from ("order") to end of line 38 and insert ("his conduct shall be punishable as a contempt of court").10.15 p.m.
"If it appears to a chief officer of police".
I have the feeling that that really means that the chief officer has a reasonable suspicion. I am reinforced in that surmise because of what is said in line 5,
"give reasonable cause to believe".
I am not sure whether "appears" is the right word. That is my first worry.
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