Schedule 3 - Sexual offences for purposes of Part 2

Sexual Offences Bill [Lords] – in a Public Bill Committee at 11:00 am on 14th October 2003.

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Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office 11:00 am, 14th October 2003

I beg to move amendment No. 259, in

schedule 3, page 78, line 36, at end insert

'and—

(a) the conviction, finding or caution was before the commencement of this Part, or

(b) the offender—

(i) was 18 or over, or

(ii) is sentenced in respect of the offence to imprisonment for a term of at least 12 months.'

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following:

Government amendments Nos. 260 to 262.

Amendment No. 245, in

schedule 3, page 79, line 13, leave out subparagraph (i).

Amendment No. 246, in

schedule 3, page 79, line 28, leave out '12' and insert '6'.

Government amendment No. 263.

Amendment No. 247, in

schedule 3, page 79, line 39, leave out '12' and insert '6'.

Government amendments Nos. 264 to 271, 273, 275 to 277, 280 to 301, 303 and 305 to 307.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

That is a considerable amount to get through. I shall try to do so as thoroughly and speedily as possible.

The schedule lists the offences that trigger the notification requirements. Some of the offences cover a range of offending behaviour, so disposal thresholds are applied that must be met before the notification

requirements are triggered. That ensures that the requirements are restricted to more serious offenders.

The Government amendments in the group will extend the application of the threshold relating to young offenders to a wider range of offences. The amendments will ensure that only the most serious young offenders become subject to the notification requirements. We are also making changes to the schedule that will ensure consistency in the use of the community punishment threshold. There are other amendments, including minor drafting amendments and some that would change the list of offences in Northern Ireland. Amendments Nos. 245, 246 and 247 are intended to change the thresholds to notification. I shall speak to those in turn.

We believe that young offenders should continue to be subject to the registration requirements where they have committed the most serious sexual offences. We have already discussed that. However, we recognise that registration is not appropriate in less serious cases. The schedule already contains disposal thresholds for certain offences, which means that young offenders will go on the sex offenders register only when they receive a sentence of at least 12 months imprisonment. That excludes completely offenders under 12 and means that final warnings, reprimands, community sentences and periods of detention of less than 12 months do not trigger registration.

Amendments in the group will extend the threshold to cover a wider range of offences, which are as follows: those relating to indecent photographs of children; familial child sex offences; care worker offences; paying for the sexual services of a child where the victim or other party is under 16; committing an offence, or trespassing with intent to commit a sexual offence; sex with an adult relative; intercourse with an animal; and sexual penetration of a corpse.

A reprimand, final warning, conditional discharge, community sentence or term of imprisonment of less than one year will not lead to registration for the offences. Registration will remain automatic, however, where a young offender is convicted, cautioned, or subject to a finding for the most serious sexual offences: the rape of a child under 13, or any rape, assault by penetration and assault of a child under 13 by penetration, administering a substance with intent, offences against persons with a mental disorder, causing a person to engage in sexual activity without consent and causing or inciting a child under 13 to engage in sexual activity.

Amendment No. 246 would reduce from 12 to six months the imprisonment threshold for child sex offences committed by children or young persons. There is clearly a balance to be drawn. The 12-month imprisonment threshold for young offenders is set at the right level. Committee members have already said that there is a stigma attached to registration. As the hon. Member for Beaconsfield said, there is evidence that young sexual offenders have a much greater chance of changing their behaviour and leading law-abiding lives.

The second purpose of the Government amendments in the group is to ensure consistency in the use of the community punishment threshold. There are currently two thresholds. Under the first an adult offender must receive a 12-month community sentence before registration is triggered for the offences of abuse of trust and committing an offence, or trespassing with intent to commit a sexual offence.

Under the second threshold, an adult offender will only qualify for registration when he receives a community sentence of at least 18 months for the offences of sexual assault, exposure, or care worker offences. Having different community punishment thresholds for different offences makes schedule 3 unnecessarily complex, so the amendments will standardise the community punishment to a community sentence of at least 12 months. I also believe that the 12-month community sentence threshold should apply to the offence of voyeurism, and that will be done through amendments Nos. 275 and 276.

Amendment No. 247 would change the current threshold for registration of the abuse of trust offences in clauses 18 to 21. Clearly, there is a need for consistency. Only the most serious offenders should become subject to the notification requirements.

Finally, amendment No. 245 would mean that an adult offender who committed a sexual assault against a child would only become subject to the notification requirement if he was sentenced to a term of imprisonment, detained in a hospital or had received a community sentence of at least 18 months—I intend to change that threshold to 12 months. I oppose the amendment; all adults who commit a sexual offence against a child should be placed on the register. As always—this strikes to the heart of the work of the Committee—the protection of children is fundamental.

Photo of Roger Gale Roger Gale Conservative, North Thanet 11:15 am, 14th October 2003

Hon. Members will appreciate that there are a series of complex and interlinked amendments in this group and the following two. Once again, I am perfectly happy to allow wide-ranging debate, but only on the understanding that there will be no schedule 3 stand part debate afterwards. I call Mr. Malins.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

Thank you, Mr. Gale. I shall speak only to amendments Nos. 246 and 247 to schedule 3. Amendment No. 246, in relation to young persons' offences under clause 14, would alter the trigger from 12 months imprisonment to six months imprisonment. These are essentially probing amendments, but I must tell the Minister why I tabled them.

It is important to say immediately that no court in this country sends anyone to prison unless it absolutely has to. Indeed, in passing a sentence, any judge must use a form of words that begins: ''The offence is so serious that only a custodial sentence can be justified.'' Very properly, judges are constantly being urged not to send someone to prison.

Let us move from that proposition to the next: generally, the younger the person before the court, the

shorter the sentence passed, whatever the gravity of the offence. When dealing with a young person who commits an offence so serious that only a custodial sentence can be justified, judges are correctly urged to pass the minimum possible sentence. Thus, an offence that would result in a sentence of 18 months if an adult committed it might, in the case of someone between 15 and 18—that is who we are dealing with in clause 14—attract half that sentence, namely nine months. The offences might be equally serious, but the sentence imposed would be very different because of the age of the person appearing before court. That is perfectly proper, but we must not take our eye off the point that the offences in question may be equally serious.

Therefore, taking an offence under clause 14 for which a young person is sentenced to a term of imprisonment of ''at least 12 months''—and my amendments would substitute six months—we would have a situation where even a sentence of six months would not be imposed unless the offence were terribly serious, because the courts would try hard, in the case of a young person, to bring the sentence down. The amendment makes the point that the requirements under the Bill should perhaps apply, in the case of a younger person, where a sentence of six months or more is passed, because no such sentence would be passed unless the matter were very grave indeed. I hope that the Under-Secretary understands the thrust of my argument and that he will look favourably, or at least constructively, on the point that I have made. A younger person, even when an offence is terribly serious, might, because of age, get a much lower sentence.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I shall try to give a short and precise response to the hon. Gentleman's point. Twelve months imprisonment for a young offender is pitched at the middle of the available detention period; a detention and training order can go up to 24 months detention. These things are a question of balance and we are attempting to draw that balance at a point that reflects the most serious offences. That is why we feel strongly that the balance should be put at 12 months rather than the six months that he suggests.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The hon. Gentleman rightly says that he is aiming at the most serious offences, but does he accept that two identical, terribly serious offences, one committed by someone of 23 or 24 and one committed by someone of 15 or 16, might result in different sentences: for example, six months for the younger person and 18 months for the older person?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

They might indeed result in different sentences; I would expect that in the circumstances that the hon. Gentleman has suggested. However, at all stages in the criminal justice system a young person's individual circumstances and their offence are taken into account. A 12-month sentence for a young person, whatever their age, would be a reflection of the seriousness of the offence. To send a child to prison for 12 months or more would reflect a very serious offence. I put it to the hon. Gentleman again: there is a balance. Perhaps there is no absolutely right or wrong answer, but we must achieve a balance. I think that six months would be too low and that 12 months is about right.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am conscious that, leaving aside the matters raised by my hon. Friend the Member for Woking (Mr. Malins), it appears likely that there will be a marked lack of debate on the Government's schedule 3 proposals. Having noted that, I did not want to let the matter pass without saying something. I thank the Under-Secretary for reviewing the subject. The provisions are all considerable improvements on the way the Bill was when it came into being. The various changes contemplated in relation to young offenders, the community punishment threshold and the removal of the notification requirements for offenders convicted for consensual homosexual activity are all to be welcomed. As there appears to be unanimity that those are improvements to the Bill, I do not intend to take up the Committee's time any further. Perhaps I pessimistically thought that more would be said about those issues. I am therefore delighted to tell the Under-Secretary that we welcome all the proposals.

Amendment agreed to.

Amendments made: No. 263, in

schedule 3, page 79, line 30, leave out

', where the offender is under 18, he'

and insert 'the offender—

(a) was 18 or over, or

(b) '.

No. 264, in

schedule 3, page 79, line 39, at end insert—

'23A An offence under section 27 or 28 of this Act (familial child sex offences) if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.'

No. 265, in

schedule 3, page 79, line 40, leave out '27, 28 or'.

No. 266, in

schedule 3, page 79, line 40, leave out 'familial child sex offences,'.

No. 104, in

schedule 3, page 79, line 41, leave out 'or learning disability'.

No. 105, in

schedule 3, page 79, line 42, leave out 'or learning disability'.

No. 106, in

schedule 3, page 79, line 45, leave out 'or learning disability'.

No. 267, in

schedule 3, page 79, line 45, after 'if' insert '—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case,'.

No. 268, in

schedule 3, page 80, line 3, leave out from 'least' to end of line 7 and insert '12 months.'.

No. 269, in

schedule 3, page 80, line 9, at end insert

', and the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.'.

No. 270, in

schedule 3, page 80, line 13, at end insert—

'(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case—'.

No. 271, in

schedule 3, page 80, line 20, at end insert

'—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case,'.—[Paul Goggins.]

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I beg to move amendment No. 272, in

schedule 3, page 80, line 25, after 'sentenced' insert

'in respect of the offence'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following:

Government amendment No. 274.

Government amendment No. 302.

Government amendment No. 304.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

This could be the shortest speech that I make today. This group of amendments improves the consistency of the wording in schedule 3 by adding the words ''in respect of the offence'' when referring to the thresholds for exposure and voyeurism. I am sure that this will command the support of the Committee.

Amendment agreed to.

Amendments made: No. 273, in

schedule 3, page 80, leave out lines 34 to 38 and insert '12 months.'.

No. 274, in

schedule 3, page 80, line 40, after 'sentenced' insert

'in respect of the offence'.

No. 275, in

schedule 3, page 80, line 46, leave out 'or'.

No. 276, in

schedule 3, page 81, line 1, at end insert

', or

(c) made the subject of a community sentence of at least 12 months.'.

No. 277, in

schedule 3, page 81, line 3, after 'if' insert '—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case,'.—[Paul Goggins.]

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I beg to move amendment No. 278, in

schedule 3, page 81, leave out lines 17 to 19 and insert

'every person involved in the offence was 16'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following:

Government amendment No. 279.

Government amendments Nos. 308 to 310.

Government amendments Nos. 315 to 319.

Government amendment No. 321.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

Amendments Nos. 278 and 279 provide that persons who commit the common law offence of sodomy or an offence under section 13(5) of the Criminal Law (Consolidation) (Scotland) Act 1995 will be subject to automatic registration unless the homosexual acts were consensual and all parties were over the age of 16.

Amendments Nos. 308, 309 and 310 are technical amendments that draw an explicit distinction between parental directions imposed by criminal courts and those imposed by civil courts in Scotland in terms of the procedures and circumstances where such directions can be varied, renewed and discharged in Scotland. A parental direction is one imposed in relation to certain young offenders who are subject to the notification requirements, and it has the effect of making the person with parental responsibilities to the young offender subject to the obligations of the Act.

Amendments Nos. 308 to 310 clarify that it will the chief constable who can apply for variations of the direction when original direction was made by the civil court. The amendments also ensure that where the direction was imposed by a criminal court it is the public prosecutor in Scotland who can make an application to vary, renew and discharge parental directions, and that any such application must be in accordance with rules of court made by the High Court of Justiciary by Act of adjournal.

Clauses 106 and 107 make provision for the variation, renewal and discharge of sexual offences prevention orders and interim sexual offences prevention orders. Existing sex offender orders made under the 1998 regime will be subject to those provisions. Amendments Nos. 315, 316, 318 and 319 to subsections (8) in both clauses align the existing sex offender and interim sex offender regime operating in Scotland with the procedural provisions being put in place for the sexual offences prevention orders. The reason why those clauses do not include the references to Scottish sex offender orders at present is that at introduction the Bill did not seek to replace these orders. The Scottish position is now set out in the Bill and the amendments are consequential in light of that.

Amendment No. 317 ensures that chief constables in Scotland can apply for interim sexual offences prevention orders for orders provided in clause 103. The order set out in clause 103 is specific to Scotland, can be granted against an extended category of offender in Scotland and is pursuant to recommendations 40 and 41 of the expert panel on sex offending, whereby a person who is convicted of an offence with a significant sexual aspect can be caught by the notification order provisions of the Bill.

Amendment No. 317 makes explicit in the clause dealing with interim SOPOs that an application for such interim orders can also be made in conjunction with or pursuant to an application for an order under the Cosgrove processes in clause 103.

On amendment No. 321, clause 111 provides that the courts in England, Wales and Northern Ireland

will not be able to make an order for conditional discharge in imposing sentence for breach of a sexual offences prevention order. Probation orders are the equivalent Scottish sentence and amendment No. 321 will prevent the Scottish courts from making probation orders for breach of a SOPO or an interim SOPO.

Amendment agreed to.

Amendments made: No. 279, in

schedule 3, page 82, leave out lines 12 to 18 and insert

'every person involved (whether in the offence or in the homosexual act) was 16 or over and was a willing participant'.

No. 280, in

schedule 3, page 82, line 31, leave out paragraph 59.

No. 281, in

schedule 3, page 83, line 11, leave out '18' and insert '12'.

No. 282, in

schedule 3, page 83, line 13, at end insert

'if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.'.

No. 283, in

schedule 3, page 83, line 19, leave out '17' and insert

'18, and the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months'.

No. 284, in

schedule 3, page 83, line 32, leave out '18' and insert '12'.

No. 285, in

schedule 3, page 83, line 34, at end insert

'if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.'.

No. 286, in

schedule 3, page 83, line 36, at end insert

'if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.'.

No. 287, in

schedule 3, page 83, line 38, at end insert

'if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.'.

No. 288, in

schedule 3, page 83, line 41, at end insert

'if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.'.

No. 289, in

schedule 3, page 84, line 2, leave out from 'if' to end of line 3 and insert '—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the victim or (as the case may be) other party was under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment, or

(b) detained in a hospital.'.

No. 290, in

schedule 3, page 84, line 4, leave out from 'if' to end of line 5 and insert '—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the victim or (as the case may be) other party was under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment, or

(b) detained in a hospital.'.

No. 291, in

schedule 3, page 84, line 8, at end insert

'if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.'.

No. 292, in

schedule 3, page 84, line 9, at end insert

'if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.'.

No. 293, in

schedule 3, page 84, line 11, at end insert

'if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.'.

No. 294, in

schedule 3, page 84, line 16, at end insert

', and the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.'.

No. 295, in

schedule 3, page 84, line 19, at end insert

'if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.'.

No. 296, in

schedule 3, page 84, line 23, at end insert

'if—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case, the offender, in respect of the offence or finding, is or has been—

(i) sentenced to a term of imprisonment,

(ii) detained in a hospital, or

(iii) made the subject of a community sentence of at least 12 months.'.

No. 297, in

schedule 3, page 84, line 26, at end insert

'if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.'.

No. 298, in

schedule 3, page 84, line 28, leave out 'was 20 or over' and insert

', in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment,

(b) detained in a hospital, or

(c) made the subject of a community sentence of at least 12 months.'.

No. 299, in

schedule 3, page 84, line 34, at end insert

'and the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.'.

No. 300, in

schedule 3, page 85, line 2, leave out '18' and insert '12'.

No. 301, in

schedule 3, page 85, line 11, at end insert

'and the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to a term of imprisonment of at least 12 months'.

No. 302, in

schedule 3, page 85, line 13, after 'sentenced' insert

'in respect of the offence'.

No. 303, in

schedule 3, page 85, line 22, leave out '18' and insert '12'.

No. 304, in

schedule 3, page 85, line 24, after 'sentenced' insert

'in respect of the offence'.

No. 305, in

'schedule 3, page 85, line 30, leave out 'or'.

No. 306, in

schedule 3, page 85, line 31, at end insert

', or

(c) made the subject of a community sentence of at least 12 months.'.

No. 307, in

schedule 3, page 85, line 33, after 'if' insert '—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case,'.—[Paul Goggins.]

Schedule 3, as amended, agreed to.

Clause 82 ordered to stand part of the Bill.