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The Earl of Mar and Kellie: Since the noble Lord, Lord Hylton, has raised the issue of whether Clause 2 shall stand part of the Bill, perhaps I may express my one concern with this type of order. Nobody in the Committee disagrees that we are dealing with very serious misbehaviour. I am concerned that this remains an unsupervised order. Is that really sustainable?

Lord Williams of Mostyn: I do not think there is any real difficulty about the words,

That implies that he has made appropriate inquiries or material has been brought to his attention. He therefore comes to the conclusion that the following conditions are fulfilled. When I spoke of a sex offender, I defined that as someone who has committed an offence within Schedule 1 of the Sex Offenders Act. I did not say, "With or without previous convictions". I said that he might have been cautioned. I am happy to repeat the definition of a sex offender. He is someone who has committed one of the offences in Schedule 1.

As regards "relevant dates", I believe that the noble Lord, Lord Hylton, will find that in Clause 3(2) on page 4 of the Bill. It states,

    "the relevant date, in relation to a sex offender, means"--
and then the words are set out there. I am happy to read them, but they are on the face of Clause 3. I hope that that deals with the three specific questions that the noble Lord, Lord Hylton, raised.

Clause 2 agreed to.

Clause 3 [Sex offender orders: supplemental]:

Lord Goodhart moved Amendment No. 39:

Page 3, line 46, at end insert ("(the conviction for such offence not being a spent conviction for the purposes of the Rehabilitation of Offenders Act 1974)").

The noble Lord said: Members of the Committee may well be pleased to know that apart from this amendment and the two amendments with which it is grouped, the next amendment to which my name has been appended comes in at No. 122, so the Committee will be spared hearing any more from me this evening and perhaps for some time to come--

Noble Lords: Ah!

Lord Goodhart: Amendment No. 39 was intended as a probing amendment to see whether the Government took the view that the Rehabilitation of Offenders Act applied to sex offender orders. The noble Lord, Lord Williams of Mostyn, has told us on information provided from the official Box that the Rehabilitation of Offenders Act has no application to the sex offender order, but I wonder whether that is correct. An application for a sex offender order is not itself a criminal proceeding. Therefore, it appears to me that Section 7(2) of the Rehabilitation of Offenders Act does not apply so as to exclude the operation of that Act. If

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that is so, a spent conviction cannot be used as the basis for a sex offender order although it might have to be taken into account in a criminal prosecution for breach of such an order.

Whatever the answer to that might be--I hope that the noble Lord will be able to reply to me by correspondence--I hope that the Rehabilitation of Offenders Act does apply to the making of a sex offender order because that Act never applies to a sentence of imprisonment of more than 30 months, which excludes most convictions for serious sex offences. For shorter terms of imprisonment, the Act will come into operation only after seven to 10 years from the date of imprisonment. It seems wrong that an offender who has not reoffended for a substantial period and whose crime did not justify a sentence of more than 30 months should have the possibility of a sex offender order hanging over his head for the rest of his life.

I turn to Amendments Nos. 40 and 41, which are grouped with Amendment No. 39, but which raise the entirely different point of whether a sex offender order should be capable of being triggered by a caution. Amendment No. 41 is merely consequential, striking out a definition of what constitutes a caution. It would not be appropriate for an order to be triggered in that way because cautioning applies only where an offence is regarded by the police as insufficiently serious to justify a prosecution. There would have been no trial and no conviction. I suggest that it is inappropriate that anything short of conviction by a court should trigger potential liability to a sex offender order, which is a draconian order (although in many circumstances it can, indeed, be justified), but the very strength of the order means that the threshold must be high enough to justify the application of that order. Where an offence has been dealt with by a caution, I do not believe that that threshold has been passed. I beg to move.

Lord Henley: I have my name down to Amendment No. 40 but the Committee will be pleased to hear that although my name is appended to a considerable number of amendments between now and Amendments Nos. 99 and 100, when the noble Lord, Lord Goodhart, and I start again, I shall be exercising a self-denying ordinance for the next few clauses and leaving the next amendments to my noble and learned friend Lord Mackay of Drumadoon.

I put down my name to Amendment No. 40 originally as a result of misreading Clause 3(1)(c) regarding the cautioning of an offender. I thought it somewhat severe that someone who had only been cautioned should be considered to be a sex offender. Having studied the clause, I see that it relates to a person who has been cautioned by a constable,

    "in respect of such an offence which, at the time when the caution was given, he had admitted".
Having noted the words "he had admitted", I am perfectly content with the clause as it reads and have no intention of pressing Amendment No. 40 any further.

Lord Northbourne: I am inclined to support these three amendments in so far as I understand them. While

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being rightly anxious to protect young people from sex offenders and having a degree of righteous indignation about sexual offences we must be just to people who have made this mistake in their lives. Earlier this evening reference was made to Lady Faithfull. One of her concerns in your Lordships' House was the rehabilitation of sex offenders. It is wrong that any one particular crime in the whole plethora of possible crimes should be unforgivable, unredeemable and never removed from the records. We must balance the protection of young people with the need to be just to those who have committed offences but have reformed their lives. I urge the noble Lord to ponder these matters.

Lord Monson: Unlike the noble Lord, Lord Henley, and his noble friends on the Front Bench who appear to have had second thoughts, I strongly support Amendment No. 40, in part for the reasons given by the noble Lord, Lord Thomas of Gresford, in moving Amendment No. 35. As he pointed out, sexual offences vary enormously in heinousness. Take indecent assault as an example. It may range from an act that is almost as bad as rape--perhaps even worse than that in one or two instances--to something as trivial as planting an unwanted kiss on the cheek of a 17 year-old girl. It is the latter type of indecent assault that is likely to be dealt with by a caution rather than prosecution. I believe that it would be quite inappropriate for people to be caught for something as trivial as that. I strongly support the principle of Amendment No. 40.

Lord Thomas of Gresford: I strongly support my noble friend's amendments. If those in authority, the police, thought it sufficient to caution a person for a sexual offence, whether or not admitted, that should be the end of it, unless the person committed a further offence. For him to have to carry the stigma of being a sex offender for the rest of his life, or a substantial number of years, is not fair and may lead to fewer cautions being accepted.

Lord Williams of Mostyn: Perhaps I may start usefully with Amendment No. 40 bearing in mind that the recent contributions have dealt with that amendment. One must look at how cautions work in practice. There may be many reasons for an original disposal by way of caution: the age of the offender, the promise of a supportive environment to help him overcome problems or other matters. Typically, the reason may be that the complainant is simply not up to the trauma of giving evidence in court. In this connection one thinks of quite small children. I believe it is the commonplace experience of those who practise in this area that the mere fact of caution does not always mean that the offence is simply one of giving the blushing 17 year-old a kiss at Christmas. There is quite a wide spectrum of cautions.

We believe that what really matters in the assessment to be made in this context is the nature of the original offence and the up-to-date assessment of the offender. The original disposal is not something that necessarily matters. If on the spiral of sexual offences, which everyone who has spoken tonight recognises, there was

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a time when someone was sentenced to 20 months, if quite young for a first offence, it might, nevertheless, have been serious. Therefore, I am not persuaded by the arguments on Amendment No. 40, because disposition is not the point; it is the nature of the offence, and the present nature of the offender.

On Amendment No. 39, no order is capable of being granted unless the behaviour of the individual concerned, at the time the order is applied for, gives reasonable cause to believe that the order is necessary to protect the public from serious harm. So the proposal bears no element of being retrospective, because it is behaviour which decides whether the order is appropriate, not the previous offence.

The order is not a sentence; it is not a conviction. To deal with the philosophic point of the noble Lord, Lord Thomas of Gresford, about rehabilitation, the previous conviction merely serves as evidence that the defendant has a history of offending in this particular way. I readily accept that to use the words "sex offence" is sometimes prejudicial. There are many sex offenders who will never re-offend. The boy of l7 who has sexual intercourse with his girlfriend of l5 years and ll months is different from the sort of dangerous sex offender upon whom we are focusing in our discussion this evening and whom the Bill is intended to catch.

The fact that the conviction is spent is just a fact; it does not mean that he may not re-offend. We believe that we have the balance right again: duty to protect the public; duty to have due regard to individual rights and liberties.

We have difficulties with Amendment No. 41. I have reached the last ignoble refuge of thinking that this is technically misconceived. I have treated myself to that.

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