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Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord the Lord Advocate for his response. When he reflects on Clause 19, I hope that he will treat himself to further reflection on Clause 18, although I am not optimistic that that will bear fruit. Nevertheless, I hope that I can tempt him to do so.

When the noble and learned Lord takes away Clause 19, perhaps I may invite him to look at two issues. First, the question of whether there is a power of arrest; and, secondly, the issue regarding a penalty for breach of such an order. I believe that it would be undesirable to have contempt of court proceedings mixed up with this procedure if the Government's determination is to have a separate route for dealing with breaches of such orders--an aspect of the policy with which, as presently advised, I agree. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 59 not moved.]

5.30 p.m.

Lord Hardie moved Amendment No. 60:

Page 15, line 11, leave out ("sections 19 and 20") and insert ("section 20").

The noble and learned Lord said: This amendment is grouped with other government amendments; namely, Nos. 63, 66, 67 and 75. It is not usual for the police in

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Scotland to apply direct to the civil court, as we are proposing for sex offender orders. When we consulted on these orders at the end of last year we therefore sought views on whether the police or local authorities should have the power to make applications. That is why both appear in the Bill as at present.

Views from consultees were divided. The orders, however, can only be made against someone with a previous conviction for a sex offence, and their intention is to prevent future criminal behaviour. It therefore seems right that the police should apply for them, as in England and Wales. I understand that the Association of Chief Police Officers in Scotland supports that approach. The police will, however, be required to consult the relevant local authority before making an application. These amendments remove the provision relating to local authority applications in Clause 19(2) and references to it elsewhere. I beg to move.

The Earl of Mar and Kellie: I wish to speak to Amendments Nos. 62A and 81A which are curiously grouped with the Government's amendments. I hope naively that they will be accepted with the same ease as the amendments of the noble and learned Lord. However, I suspect that will not be the case.

These amendments have been suggested to me by the Law Society of Scotland. Amendment No. 62A seeks to transfer responsibility for the promotion of sex offender orders from the chief constable to the procurator fiscal. The case for doing this is a constitutional one. It is unprecedented in Scotland for the police to apply for a civil order in the sheriff civil court. It is also most unusual for the police to appear in Scottish courts in any other capacity than that of witnesses or of court duty officers.

The amendment sets down the following challenge. Although it is rare for a procurator fiscal to appear in a civil court, the hybrid or quasi-criminal nature of a sex offender order makes it appropriate. The breach of a sex offender order will be a criminal matter. The usual process of a report being sent to the procurator fiscal from any source would seem appropriate to be applied to sex offender orders. In the event of a breach, the procurator fiscal will need to know all the circumstances of the imposition of the sex offender order. Therefore he or she may as well have promoted it in the first place. This amendment would avoid muddying the waters in the relationship between the police and the public, including past offenders.

Amendment No. 81A is designed to ensure that consultation on sex offender orders takes place between the chief constable and the local authority. I cannot see how an order seeking to control the behaviour of a citizen could be promoted and informally supervised without the notification, consultation and co-operation of both the police and the local authority. How is the procedure of making these orders enhanced by allowing for a failure of consultation? I believe that we have moved on from the time when social workers found it difficult on ideological grounds to talk to policemen. The advent of the criminal justice specialist social work teams is strong evidence of this progress. Presumably

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officers from the police, social work and housing are likely to be involved already in some way with antisocial behaviour order holders and sex offender order holders. These orders may well be a significant step forward in dealing with grossly unsatisfactory behaviour. They must not be tarnished by inadequate procedures.

Lord Mackay of Drumadoon: I speak to the amendment moved by the noble and learned Lord and to the various other amendments in this grouping which stand in my name. As the noble and learned Lord the Lord Advocate has explained, the Bill, as initially drafted, sought to give both to the police in the form of the chief constable and to the local authority, power to seek orders under Clause 19. His amendment seeks to exclude the local authority and my Amendment No. 62 seeks to exclude the police. Therefore, in this instance, we cannot say that we seek to achieve a common purpose.

I believe that the crucial issue in this case is whether the police wish to have this jurisdiction, and the related question of whether it would be sensible to give it to them. I do not think there is any doubt that if local authorities are to be charged with the power to seek antisocial behaviour orders, it would be perfectly possible for them to seek sex offender orders too. It is my experience that police forces in Scotland use as their legal departments the legal departments of one or other of the local authorities whose areas they cover. As a matter of practice, the same lawyers will go to court to seek the order. The question therefore is whether they should do that on behalf of the local authority who employs the lawyers or on behalf of the chief constable who seeks to employ their services and no doubt would pay some compensating charge to the local authority budget for that purpose.

I, too, have considered the responses of the police organisations in Scotland to the consultation paper. As the noble and learned Lord the Lord Advocate fairly pointed out, it would be unprecedented in Scotland for the police to apply for a civil order. Therefore the Government sought views on whether that should be done by the police on the one hand or local authorities on the other. As I read the responses received from the Association of Chief Police Officers in Scotland, they do not express a view on that issue although I fully accept that privately they may have communicated what the noble and learned Lord the Lord Advocate has reported. However, their initial response at least did not appear to embrace this new power with enthusiasm. I could not find in the file that I consulted any response from the police superintendents, and the Police Federation, which represents the police constables, favoured the power lying with the local authority and not with the chief constable.

I believe that not only is there a constitutional issue here, of the nature mentioned by the noble Earl, but also a practical issue of good policing, and that of a good relationship between the procurator fiscal on the one hand and the police on the other. Time and time again disputes arise involving neighbours and some of them take on a nasty aspect and result in the commission of

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criminal offences. It is possible to imagine situations where rather than resorting to criminal proceedings it is decided that when dealing with an offender who has a sex offender's background and is liable to upset a neighbouring family, the Section 19 route should be followed. In such a situation the police are in a difficult position. On the one hand, they wish to prevent the sex offender from committing further sex offences, but on the other they wish to protect members of the public who are outraged--whether from their own feelings or because they are whipped up by others--at the presence in their community of a sex offender.

In such situations it is extremely important that the police forces exercise impartiality because they are the people who will have to enter a housing scheme to deal with any problems that may arise, whether they be a breach of the peace or problems of a violent nature. If they have taken the initiative--as the Government proposal would empower them to do--it may be difficult to preserve that impartiality.

I mentioned also the relationship with the procurator fiscal. If the police report the sex offender to the procurator fiscal and say that on the basis of the evidence available to them it appears that the sex offender has been guilty of a breach of a stalking nature, such as watching a school playground, a community centre or a public park, and the procurator fiscal for good reason decides that criminal proceedings are not appropriate, at present the police have to accept the decision of the Crown without question; and they do so, having explained what evidence they have been able to collect.

This provision affords the police an option of to some extent second guessing the procurator fiscal and instituting proceedings of their own. I venture to suggest that in an isolated incident it might lead to breakdown of the important relationship between the Crown and police. It is not essential that the police be given this power. By framing Clause 19 in its present form, the Government acknowledge that it would be possible to leave the matter with the local authority. That is the course I invite them to reconsider.

Amendment No. 77 is included in this group of amendments. As a result of a fault entirely on my part it is wrongly included because it raises a somewhat distinct issue; namely, the limitations on the disclosure of information by a chief constable to others of information which might be available to him. In the context of Clause 19, if the government amendment prevails the practical implications for Clause 19 will fly off. But the amendment has implications for Clause 18, and that is why I raise it.

As anyone interested in the criminal justice system will know, chief constables are privy to a great deal of information about people in the community. Some of that information is in the public domain; some of it has not yet entered the public domain but will do so; and some of it will never enter the public domain. As regards a neighbours' dispute it can include information about both sides--convictions, police warnings, warnings by the procurator fiscal and other matters. My concern is that that information, plus any information

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the police may have communicated to the procurator fiscal in relation to previous incidents, may seep out during the consultation process unless clear guidance is given as to what a chief constable can or cannot do.

Good policing depends on collecting evidence and information in confidence. It depends upon obtaining that information by surveillance. Good policing and sensible prosecuting depends upon the police forming views as to the rights and wrongs of certain situations and communicating that to the procurator fiscal who takes the ultimate decision as to whether or not to initiate prosecutions.

As I understand the law, at present the police have certain limits on them as to what they can disclose to outside agencies. I fully accept the value of case conferences when dealing with young offenders. I fully accept that information may have to be disseminated further than to the procurator fiscal. However, I put down the amendment to seek from the Government a clear indication of what they believe the correct policy to be and, it is to be hoped, some assurance that it is an issue which will be dealt with in the guidance to which the noble and learned Lord the Lord Advocate has helpfully referred.

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