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Lord Goodhart: My Lords, nothing that the Minister has said convinces me that there is any need for a sentence of as long as five years or that it is appropriate to retain that in the Bill as it stands. However, I am conscious that we have a lot of business to get through. The reason I do not take the matter further is my belief that a five-year sentence will in practice never be applied. Therefore, we are not talking about something which in practice is likely to be as serious an infringement of rights as some of the other provisions of the Bill may be. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 10 not moved.]

Clause 2 [Sex offender orders]:

[Amendments Nos. 11 to 14 not moved.]

Clause 3 [Sex offender orders: supplemental]:

Lord Goodhart moved Amendment No. 15:

Page 4, line 8, leave out from beginning to ("or") in line 10.

The noble Lord said: My Lords, a sex offender order is, as I described the antisocial behaviour order earlier, an extremely powerful sentence. Of the two it is clearly the more powerful. It lasts for a minimum period of five years and makes the defendant subject to notification regulations under the Sex Offenders Act 1997. A breach carries a five-year penalty. My noble friends and I believe that it is wholly inappropriate to make this order where the triggering offence is one that has been dealt

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with by a caution. A caution is given where an offence has been admitted but is not so serious as to justify prosecution.

When I raised this matter at Committee stage the noble Lord said that,

    "the reason [for the caution] may be that the complainant is simply not up to the trauma of giving evidence in court".--[Official Report, 3/2/98; col. 626.]

I suggest that that is very unlikely to be the reason because the defendant has to admit the offence before the decision can be taken to caution him. If the defendant has committed the offence, if he is not cautioned but taken to trial it must surely be that a guilty plea is virtually inevitable.

The sex offender order seems to be directed, mainly if not entirely, and rightly, at paedophiles. We want to stop the situation that we have seen reported in the newspapers recently of a paedophile, released from prison, who has been discovered hanging around a children's library. I do not believe that paedophile offences are ever likely to be the subject of a caution after there has been an admission of guilt.

Cautions are likely to be imposed for different kinds of offences, in particular, for the unwanted grope at the office party or the 16 year-old boy who is having sex with his 15 year-old girlfriend. Such a case does not lead to the circumstances where a sex offender order is necessary or appropriate. The sex offender order should be confined to cases where the defendant has been duly convicted in a court and not where he has merely been cautioned. I beg to move.

Lord Thomas of Gresford: My Lords, I support the amendment. The Government do not appear to have carried out any analysis of the sex offences for which cautions are administered. I accept entirely what my noble friend said a moment ago: where there is anything approaching a serious sexual offence, a caution would never be administered and the person would appear before the court to be convicted if he is guilty of the offence.

The type of circumstances to which my noble friend referred, where something is much less worthy of opprobrium, are circumstances where cautions would be administered. This is far too serious an order to be imposed in such circumstances.

Lord Falconer of Thoroton: My Lords, the amendment raises the issue of why a sex offender who has only merited a caution would still be caught by the Bill's provision in relation to sex offender orders.

There is a good reason for that, just as there is a good reason why such offenders are covered by the registration provisions in Part I of the Sex Offenders Act 1997. We all know that some sex offenders are likely to repeat their offences and that sex offenders may start with minor offences and progress to more major ones. That is sad but nevertheless true. We may not be able to judge conclusively if that will happen with any individual but we can reach a judgment on the basis of some kind of risk assessment. That is being seen as an ever more crucial part in dealing with sex offenders and in protecting the public from their abuse.

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But what matters in any such assessment is both the nature of the original offence and the up-to-date assessment of the offender. How the offender was dealt with at the time of the original offence is not a material factor in the subsequent assessment of risk. There may have been particular reasons for the original disposal--trauma of the complainant, the defendant's age, the promise of a supportive environment to help him overcome his problems or other reasons. Those may have since changed. But the offence was still committed--admission of the offence is a necessary element in a caution--and the risk of re-offending still remains.

I doubt very much whether there will be many, if any, orders made in those circumstances, but we cannot afford to rule out the possibility, just as we could not afford to rule it out from registration under the Sex Offenders Act. To do so would jeopardise our aim of protecting the public in a way which we feel is unnecessary and unjustified. We have thought carefully about it. We feel that it is justified. In those circumstances, the Government cannot accept the amendment.

5.15 p.m.

Lord Goodhart: My Lords, the noble and learned Lord said that the Government could reach a judgment on the basis of some kind of risk assessment. It does not appear that any such risk assessment has yet been carried out. I regret that this penalty is being introduced before a risk assessment is looked at. The whole point of a caution is that it is not a penalty, although it may be taken into account if there is a subsequent offence within a certain period of time.

The effect of the legislation is that the person who is cautioned will indeed be exposed to a penalty. The penalty is the possibility that he will be put into the class of people against which a sex offender order can be made. That is a matter which causes me serious concern, but due to the pressure of time I do not propose to press this amendment to a vote this evening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 16 and 17 not moved.]

Clause 6 [Formulation and implementation of strategies]:

Lord Falconer of Thoroton moved Amendment No. 18:

Page 5, line 42, at end insert ("(taking due account of the knowledge and experience of persons in the area)").

The noble and learned Lord said: My Lords, the government amendment changes the basis by which reviews of the levels and patterns of crime and disorder are carried out. That is in relation to the Bill's provisions with regard to the developing of a strategy in relation to crime and disorder. Before the proposed amendment, the onus was on the police and local authorities to review these and carry out some analysis of the review before consulting the public. That approach ran the risk of the results of the review being published before they were verified against public perceptions. The amendment we are proposing will involve the local community from the

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start of the process. It will be able to express its concerns about both the actuality of crime and disorder and, as importantly, the fear of crime. The crime and disorder strategies will then address both those concerns and will gain credulity in the eyes of the community. The post-legislative guidance we shall be issuing will stress the need to establish the levels of fear of crime and to act to reduce them if necessary.

Amendment No. 18 is grouped with Amendment No. 19. That is an amendment proposed by the noble Lord, Lord Henley, and others, which includes a provision that in preparing a strategy the relevant body should carry out a review of the fear created by crime and disorder in the area. It is inevitable that the levels of the fear of crime would be determined during the consultation with the local community. The practical effect of this second amendment is, to all intents and purposes, the same as the amendment that the Government propose. In view of that, I hope that noble Lords supporting the amendment will be satisfied and will, accordingly, withdraw their amendment.

Lord Henley: My Lords, I shall do even better than that and not bother to move my amendment. It gives me the opportunity to discuss this issue and to raise the question of the fear of crime so that the Government can make their position clear.

It was brought to my attention by bodies representing a number of pensioners and pensioner organisations that fear of crime was as serious a problem as crime itself. That was a matter addressed in Committee by the noble Earl, Lord Mar and Kellie, when he gave the example of his brother, who is a minister in a fairly law-abiding part of west Scotland, who was unable to hold meetings in the evenings because, even though there was relatively little justification for it, many of the elderly residents were frightened of going out due to a fear of crime.

I therefore tabled the amendment merely to rehearse some of those views and seek the Government's response. I am grateful that the Government have taken that point on board and have come forward with Amendment No. 18 which, as the noble and learned Lord put it, addresses our concerns.

I have one other related question which goes back to Clause 5 rather than Clause 6. Clause 5(2) provides for responsible authorities acting in co-operation with the listed persons and bodies. Subsection (2)(c) refers to:

    "every person or body of a description which is for the time being prescribed by order of the Secretary of State under this subsection".

I presume that in due course the Secretary of State will issue a circular to the responsible authorities setting out who those persons are. Will the regulations which come before the House be under the affirmative or negative procedure? Will the noble and learned Lord elaborate on that issue and make it clear to the House that among those consulted will be bodies representing the elderly and pensioners as well as many others? Will the noble and learned Lord explain whom he believes the Secretary of State will suggest and what guidance will be given?

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I am grateful to the noble and learned Lord for bringing forward Amendment No. 18. I give an assurance that once the House has accepted that I shall not move my Amendment No. 19.

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