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Clause 121 - Risk of sexual harm orders: applications, grounds and effect

Sexual Offences Bill [Lords] – in a Public Bill Committee at 4:45 pm on 14th October 2003.

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Photo of Humfrey Malins Humfrey Malins Conservative, Woking 4:45 pm, 14th October 2003

I beg to move amendment No. 219, in

clause 121, page 63, line 27, leave out

'it appears to the chief officer'

and insert 'he reasonably believes'.

We are dealing with risk of sexual harm orders. Amendment No. 219 probes the Solicitor-General on whether the chief officer of police can act on a whim or fancy. The clause has the phrase:

''it appears to the chief officer''.

Normally, before someone goes to court with an application, they must have evidence of a problem that lies ahead. I would not want it to be thought that police officers would apply for an order under the clause as a matter of course simply because a person who had attended once or twice before was moving into the area. I hope that there would have to be just a little extra information in front of the chief officer before he made such an application—for example, some evidence that the proposed defendant had suggested that he was going to commit such an offence.

The amendment merely puts an extra burden on the chief officer of police to ensure that he does not act on a whim, but waits for slightly stronger evidence before he makes an application.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee 5:00 pm, 14th October 2003

First, I apologise to you, Mr. Gale, for distracting the Committee this morning by talking to officials during the debate. I am sorry about that.

The amendment is one of five groups that, as the hon. Member for Woking said, probe the issues raised by clause 121 and subsequent clauses. Without trespassing on clause stand part issues, I thought it might be helpful if I explained the nature of the beast. The amendment would raise the threshold before a chief officer of police can apply for a risk of sexual harm order. The most appropriate analogy is with an antisocial behaviour order, in that an RSHO is a civil order, but breach of it is a criminal offence. I suppose it is a bit like an injunction—it is that sort of creature. It is a civil preventive order.

An application is made, in this case by the chief officer of police, and the court hears it. The person in respect of whom the order will be made then has their chance to say why they do not think that it should be made, to agree to it, or to say that they think that it should be made in different terms. The court would make the order if it thought it appropriate to do so, and breach of the order would be a criminal offence.

It would have helped to have discussed this first—I know I am not supposed to suggests amendments on my feet while doing my ministerial work—but it might have been better to call the person in question the respondent rather than the defendant, because the order is not a criminal measure. Those subject to it are not offenders who have been found guilty; they are respondents in respect of whom an order has been made.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I am finding the Solicitor-General's comments very helpful. A little later, the clause states that the court can make an order ''if it is satisfied''. I imagine that that means satisfied on the balance of probabilities, as in a civil case, rather than satisfied such that the court is sure. It is more likely that a civil approach to the burden would be taken.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

Yes, I imagine that the burden would start there, although the hon. Gentleman knows better than I that the boundaries between the civil and criminal standards of proof are more flexible now than in the olden days.

The point is that the order is a civil order, and is more like an injunction, although a breach of it is a criminal offence. The amendment would ensure that a chief officer of police has a reasonable belief that the criteria in clause 121(1)(a) and (b) have been met before he applies for a risk of sexual harm order to be made against the defendant. Basically, hon. Gentleman seeks to raise the threshold before the chief officer can apply. We do not believe that that is necessary. It would not be a good idea, which is why we are resisting the amendment. There are enough safeguards for the respondent. Furthermore, it would not be necessary in practical terms.

Clause 121(1) provides that a chief officer of police may apply by complaint to a magistrates court for a risk of sexual harm order to be made against a person aged 18 or over if it seems to him that the defendant has on at least two previous occasions engaged in sexual activity communication with a child in a way specified under the clause and there is reasonable cause to believe that, as a result of those acts, an order is necessary. The wording of the clause mirrors that of the existing provisions for sex offender orders under section 2 of the Crime and Disorder Act 1998. There is no evidence that unjustifiable applications are being made because the test is too low. In any event, as will be seen under subsequent clauses, the magistrates court may not make a risk of sexual harm order unless it is satisfied in respect of the matters that are brought before it. I am advised that, since the case of McCann relating to ASBOs, the criminal standard of proof applies even though the order is a civil order. Is the hon. Gentleman willing to withdraw the amendment?

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I shall indeed do that. It is most helpful to know that the standard of proof will be the same as in a criminal trial. I should have known that. It just shows that even the most absurd amendment—I am not thinking of my own—can sometimes tease out interesting material. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I beg to move amendment No. 220, in

clause 121, page 63, line 29, leave out 'two occasions' and insert 'one occasion'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss amendment No. 221, in

clause 121, page 64, line 5, leave out 'two occasions' and insert 'one occasion'.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I tabled the amendment as means of asking the Solicitor-General a question. I am slightly intrigued about why the defendant must be thought to have acted in a certain way on two previous occasions before such an application can be made. Could not a person who has carried out an act on one previous occasion give rise to a real need for the chief officer of police to make an application, if he is satisfied with other evidence? Would not one act be quite important on occasion?

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

With the previous amendment, the hon. Gentleman sought to make the set of clauses less draconian in relation to the orders. However, the amendment now under discussion would make the clause more draconian. If the amendment were made, instead of a course of conduct, conduct of the sort specified occurring on only one occasion could be enough to entitle the chief constable to apply to the court and for the court to make the order.

The system should step in only if it is thought that a problem will repeat itself. If there had been just one incident that someone thought better of afterwards, or if it had been an out-of-the-blue incident that was not repeated, it would not be right to bring in the machinery of the order. A course of conduct, which needs only to be conduct carried out on two occasions, will be required to form the basis for the granting of the order. The order is not a criminal sanction, but it is important and we would not want it to be granted without a genuine need for it in order to stop ongoing behaviour.

Members of the Committee might know that the measure emerged from the Government's internet taskforce. I see the hon. Member for Mole Valley (Sir Paul Beresford), who knows a great deal more about such matters than I do, looking over. Anyway, the idea is that the clause should refer to a course of conduct. We are reluctant to reduce it to one incident and make that sufficient to justify an order.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I heard what the Solicitor-General had to say. However, I can envisage a situation in which an order is applied for because there is cause to believe that it should be made, and although the magistrates are satisfied that there is merit in the application, the order cannot be made unless there have been at least two incidents of the conduct complained of. On Report, it might be worth considering whether the

clause should be amended, so that the number of occasions is omitted and the court can go ahead if it and the chief officer of police thinks that the order is necessary. It has been said that there is a similarity with antisocial behaviour order applications, but I do not think that the legislation for them requires that the conduct complained of must happen on more than one or two occasions.

I am content that I have aired the issue, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I beg to move amendment No. 255, in

clause 121, page 64, line 11, leave out paragraph (b).

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following:

Government amendment No. 125.

Government amendment No. 126.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

It will become apparent that I have read the Home Affairs Committee report. Amendment No. 255 picks up on the fact that the Committee stated that it was puzzled by why it was felt to be necessary to require these orders to be made for a fixed period of at least five years. Its final recommendation was that that requirement should be deleted from the Bill. It argued:

''The courts should be given discretion to make whatever length of order is needed to protect a child''.

The Government amendments respond to the debate in the Home Affairs Committee. The key issue now is whether the Solicitor-General can convince hon. Members that there are good reasons for having a period of two years, rather than for deleting that entirely.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

The Bill currently states that risk of sexual harm orders will run for five years. The hon. Lady's amendment follows the line that was suggested by the Home Affairs Committee—that these orders should have no minimum time period. The Government amendment that I am speaking to replaces five years with two years.

An order can prohibit a defendant from doing anything if that is necessary to protect a particular child or group of children or children in general from harmful sexually explicit communication or conduct. Thus, a person might be prohibited from going to a particular area or swimming pool at a time when it is in use by schoolchildren; and if he had been using the internet to communicate with the child, he might be prohibited from using a computer.

As our amendment makes clear, we agree with the Home Affairs Committee that a minimum period of five years is excessive, given that these orders can be applied to someone with no criminal convictions. However, we prefer the proposal of the Association of Chief Police Officers of England, Wales and Northern Ireland that there should be a shorter minimum duration to the Home Affairs Committee's recommendation to drop the minimum duration entirely—

Sitting suspended for a Division in the House.

On resuming—

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee 5:28 pm, 14th October 2003

We were discussing whether there should be a minimum length of time for risk of sexual harm orders and, if so, what the minimum length of time should be. I remind the Committee that the conduct must have happened on two occasions, so we need the order to last long enough for people to be satisfied that at least they have had a chance to see whether the behaviour has ended. Therefore, to have no minimum period is not acceptable. We accept that five years is too long and have suggested two years, which would bring the order into line with the minimum length of time for ASBOs. The term will be fixed, but not as long as five years. We ask the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) to withdraw her amendment and the Committee to support the Government's amendment to change the minimum time limit on the orders.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I thank the Solicitor-General for her reply. I thought that it was worth pursuing the matter, but I shall withdraw the amendment and support the Government.

Amendment, by leave, withdrawn.

Amendment made: No. 125, in

clause 121, page 64, line 11, leave out '5' and insert '2'.—[The Solicitor-General.]

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs) 5:30 pm, 14th October 2003

I beg to move amendment No. 257, in

clause 121, page 64, line 17, at end add—

'(8) The use of Risk of Sexual Harm Orders (RHSOs) will be carefully monitored by the Home Office and the numbers of orders made will be reported annually to Parliament.'.

The amendment reflects a further recommendation from the Select Committee on Home Affairs. We have already discussed some of the issues by drawing a comparison with ASBOs. I was not going to make such a comparison, but it has been made now. Because of the way in which the orders operate, with the proof having to be of criminal standard, and because there has been a lot of debate about ASBOs being difficult, there is a strong case for ensuring careful monitoring. There was an excellent monitoring and evaluation report on ASBOs, which was helpful for the future.

I also included in the amendment the idea that the numbers should be reported to Parliament annually. I am the first to say that numbers are not everything, but they nevertheless form a basis for debate. These orders are new, so there is a strong argument for having them monitored carefully by parliamentarians. I am not necessarily waiting for two-year evaluations of the whole picture, so an annual report would be useful. The question is whether that needs to be in the Bill or just a commitment.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

The hon. Lady anticipates my response. The amendment does not need to be included in the Bill. I absolutely agree that what matters is putting legislation into practice. We cannot simply legislate and assume that everything will happen in the way we intend. We must consider

everything closely. I therefore fully support the spirit of monitoring contained in this amendment and others. We all recognise that we focused too much on our own words, and insufficiently on what was happening out there.

With that in mind, my hon. Friend the Under-Secretary of State will lead a ministerial committee to consider the ongoing implementation of all the measures in the Bill. We shall not simply legislate and then move on to another piece of Home Office legislation, although I am sure that there will be more legislation. We will stick with this issue. That ministerial group will undoubtedly give out information on how things are working and receive suggestions from hon. Members about what is going on in their area and reflecting how things are working in practice. The Select Committee on Home Affairs will be able to call on my hon. Friends to report on what is going on, and my hon. Friend the Under Secretary will be prepared to appear before it to give information. Hon. Members can ask parliamentary questions, and they will be told numbers straight off because they will have been collected.

We therefore agree with the spirit of the amendment. Any new creature such as this needs to be looked at in practice, but we do not need the requirement of the amendment in the Bill.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I thank the Solicitor-General for her commitment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 121, as amended, ordered to stand part of the Bill.

Clause 122 ordered to stand part of the Bill.