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Lord Hardie moved Amendment No. 63:

Page 15, line 20, leave out subsection (2).

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, Amendment agreed to.

[Amendment No. 64 not moved.]

6 p.m.

Lord Mackay of Drumadoon moved Amendment No. 65:

Page 15, line 30, leave out ("serious harm from him") and insert ("the commission by him of a sexual offence within the meaning of section 210A(8) of the Criminal Procedure (Scotland) Act 1995.").

The noble and learned Lord said: This is a probing amendment to be taken with Amendment No. 72. Amendment No. 65 seeks to leave out the words "serious harm from him" in Clause 19, page 15 line 30, and insert the words "sexual offence", defined in greater detail in the amendment.

This amendment seeks to probe one issue: whether the activity which the order would seek to prohibit, if pronounced, would be the commission of further specific offences; or whether the activity which it seeks to prohibit is an activity which, so far as it concerns another member of the public, may be perceived on all sides to be an absolutely innocent activity.

When the clause comes to be construed by the courts, it would be helpful to have clarification from the Government as to what they have in mind. If my amendment, Amendment No. 65, were to be accepted, it would clearly be the first alternative. I seek to probe whether that is the Government's policy or the second of the two alternatives. I beg to move.

The Earl of Mar and Kellie: I fear that the amendment of the noble and learned Lord, Lord Mackay, may be too prescriptive. Particularly when considering paedophiles, I believe that most parents would not want such people to have a contact with children which comes before an offence is committed. We should bear in mind that these orders are to prevent the possibility of the commission of an offence as well as to prevent the offence.

Lord Hardie: I agree entirely with the noble Earl, Lord Mar and Kellie, that there is a danger in being too specific about the harm which sex offender orders are intended to prevent.

The term "serious harm" is not defined for this clause but has been used in previous legislation. It is, for example, used without definition in Section 209 of the

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Criminal Procedure (Scotland) Act 1995 which empowers the court to make a supervised release order if it considers it necessary to do so to protect the public,

    "from serious harm from the offender on his release".

It is also to be used without definition in the new provisions for extended sentences for sex offenders in Clause 70. It will be for the courts to interpret the term and decide whether the likely consequences of further behaviour of the kind prompting the application for the order fall within the term or not.

A more specific definition--as in the amendments--runs the risk of excluding something which the police and perhaps more importantly the court would like to have been able to include. It would also cover matters that are not necessarily serious. I invite the noble and learned Lord to withdraw his amendment.

Lord Mackay of Drumadoon: I am grateful for that answer. As the noble and learned Lord the Lord Advocate correctly indicates, it touches on an issue which arises later in the Bill. I shall reflect carefully on what he said. I beg leave to withdraw Amendment No. 65.

Amendment, by leave, withdrawn.

Lord Hardie moved Amendments Nos. 66 and 67:

Page 15, line 31, leave out ("or (2)").
Page 15, line 34, leave out ("or (2)").

The noble and learned Lord said: These amendments have already been spoken to. I beg to move them formally.

On Question, amendments agreed to.

Lord Mackay of Drumadoon moved Amendment No. 68:

Page 15, line 36, leave out ("appropriate") and insert ("necessary").

The noble and learned Lord said: This is a series of amendments which are grouped together and which deal with a number of discrete topics. The first is the use of the word "appropriate" in Clause 19(5)(a). That is the power that the sheriff will have to make an interim order, "as he considers appropriate". I contrast that with the use of the word "necessary" in Clause 18(1)(b) dealing with the granting of an antisocial behaviour order and, more important, the use of the word "necessary" in Clause 19(6) dealing with the granting of a sex offender order on a permanent basis or at least on a basis which is time-limited by the sheriff's order.

As I need not inform the Committee, normally when different words are used by Parliament in a statute, different meanings are intended. Amendment No. 68 seeks to probe the policy which lies behind the use of "appropriate" in Clause 19(5)(a) when it falls to be contrasted with "necessary" in Clause 19(6).

Amendment No. 71 is fairly self-explanatory in nature and the Law Society suggested to me that it might be desirable, while I agree that it is not necessary. Amendments Nos. 78 and 84 are consequential on other amendments with which we have already dealt, and I

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need not discuss them. Amendment No. 88 is fairly minor in nature, designed to ensure that chief constables are aware of all orders that have been granted. In the light of the Government's amendment to Clause 19, chief constables will automatically become aware of the granting of orders which they have sought. However, the same would not apply to antisocial behaviour orders. Therefore, I shall move the relevant amendment in due course. It is my understanding, from reading the consultation responses which I mentioned earlier, that the suggestion has the support of ACPOS (the Association of Chief Police Officers in Scotland).

Finally, perhaps I may deal with Amendment No. 90. It is in two parts and seeks to prevent a sheriff, or on appeal a sheriff principal or Court of Session, or, indeed, the Appellate Committee of your Lordships' House, pronouncing either an antisocial behaviour order or a sex offender order if the Crown has intervened in the proceedings by a minute of the procurator fiscal or the Lord Advocate indicating that it is believed that the granting of such an order would be in the public interest.

As some Members of the Committee may be aware, when breach of interdict proceedings are initiated in Scotland, that process, being brought by a member of the public as an individual and a private citizen, requires to be done with the concurrence of the Lord Advocate to protect the public interest. It is a practice which is well founded in reason because many of the disputes involve factual situations which may or may not have given rise in the past or may give rise to criminal proceedings. To avoid conflict between proceedings under Clauses 18 and 19, I suggest it would be sensible to put on the face of the Bill a provision which would entitle the Crown to intervene and say: "Go no further".

The amendment is not designed to bring the Crown in as a party to the proceedings; it is not designed to require the Crown to justify the decision which the Lord Advocate has taken in the public interest. It is designed to indicate that if, having regard to all the information he has, he determines that it would not be in the public interest for an order to be pronounced, he has the right to exercise such a veto.

I fully expect that the occasions when that may be necessary will be limited because of the consultations which will no doubt have taken place. But from time to time there may be a breakdown of communications, or a difference of view, or, particularly under Clause 18, a local authority may be under pressure to act but the Crown may not consider that appropriate. Therefore, I include Amendment No. 90 in the group and will seek to move it in due course. I beg to move.

The Earl of Mar and Kellie: Amendments Nos. 68A and 86A appear in this group and are in my name. Amendment No. 68A is designed to clarify Clause 19 which seems rather vague.

It is worth going back in this regard to the origins of the clause when it was originally to be called a "community protection order". The purpose of its being renamed a "sex offender order" is to prevent future misconduct which would lead to the possibility of a

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further offence being committed. The amendment is necessary for public safety and clearly maps out what the order is designed to do.

Not all sex offenders will meet the criteria for a sex offender order to be imposed upon them. A past conviction alone will not be sufficient. The sex offender order evolved to deal with those convicted sex offenders who have not given up their offending behaviour and who are not making the effort to control their interest in sexual offending. Those who reject or pay lip-service to treatment programmes and counselling will, deservedly, be in line for a sex offender order and the neighbourhood supervision that goes with it. Amendment No. 68A sharpens up the clause and gives it greater clarity.

Amendment No. 86A is a probing amendment aimed at clarifying how long should be the minimum period for such an order. The words on the face of the Bill, "at any time", would allow an order to be discharged after one day. That would be a breach of common sense. Can that be a sensible form of wording? I can see the merit of flexibility in being able to apply for the discharge of an order, but it must surely be after a minimum period which itself must be long enough to establish that a new pattern of non-offending behaviour is being pursued.

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