Section 2 — Risk of sexual harm orders: applications, grounds and effect

Protection of Children and Prevention of Sexual Offences (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:00 pm on 2nd June 2005.

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Photo of Pauline McNeill Pauline McNeill Labour

I make clear from the outset that I lodged amendment 36 as a probing amendment, because without it there would have been no discussion of the implications of section 2 at stage 3. The Justice 1 Committee felt strongly that Parliament's attention should be drawn to section 2, because in order to protect children we are taking strong measures. We want to ensure that Parliament is absolutely satisfied that the right balance has been struck.

A chief constable will be able to apply to the sheriff court for a risk of sexual harm order if certain criteria are met, after which the sheriff will grant an order if he or she thinks that one is necessary. A sheriff can use the order to take any action that he or she thinks is necessary to protect a child. It is important to establish that, although the orders are a serious measure, they will be a civil measure and therefore the decision to grant one will be made on the balance of probabilities, not using the usual criminal test. Further, the conduct to which the chief constable may refer in the application for an order might be criminal behaviour, even though there might not be enough evidence to proceed with a criminal trial.

The key point of which I want members to be aware is that the RSHO is a far-reaching measure. We all know that we need our system to go further to protect children, but we must also do our best to satisfy the criterion of protecting the rights and interests of the accused, who in our system are innocent until proven guilty. The suggestion in amendment 36 is that not only the chief constable should be involved in assessing whether an application for an order should be made, but other people who may have important relevant information. In evidence to the Justice 1 Committee, social work organisations suggested that they have important information on, for example, those on their sex offenders list, whose previous convictions would not exclude them from a risk of sexual harm order. The organisations felt that they should have an input into the chief constables' decisions on applications.

I am satisfied that the Executive has got the measure right, but if I had not lodged amendment 36, many members would not be aware of the matter. The bottom line is that the provision puts a lot of faith in chief constables, given that they alone will decide whether applications should be made. I am sure that, like me, all members have a lot of faith in chief constables, but we must consider the possibility that they may make a wrong decision. If that happens, by the time that the application gets to the sheriff court, because the decision is to be made on the balance of probability, there might be a domino effect and an innocent person might be subject to an order.

I lodged amendment 36 to ensure that members have an opportunity to speak on section 2, although I know that we will talk about interim RSHOs later. Amendment 36 is simply a probing amendment, so I will seek agreement to withdraw it at the appropriate time.

I move amendment 36.

Photo of Margaret Mitchell Margaret Mitchell Conservative

I have a lot of sympathy with the intent behind amendment 36.

I lodged amendment 37, which is also a probing amendment, to gain further and more specific information about the circumstances in which evidence or other information that has been submitted during a trial that has resulted in a not guilty verdict could be used as the evidence of one of the two acts that are necessary to trigger an application for a risk of sexual harm order. I ask the minister to elaborate on the exact circumstances in which he envisages such evidence being used.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

Certain aspects of section 2 were discussed at stage 2, during which I lodged an amendment that sought to address issues relating to doctors, teachers and the publishing industry. I did not lodge a similar amendment for stage 3 because we agreed not to accept my amendment at stage 2, as the minister had suggested another way of dealing with the issue. In essence, the issue was that, under section 2(3)(c), one of the acts that can trigger an RSHO is

"giving a child anything that relates to sexual activity or contains a reference to such activity".

Of course, such references may be made as part of sex education or advice in a magazine or newspaper. I accept that section 2(4)(b) states that the sheriff must be satisfied that

"it is necessary to make such an order for the purpose of protecting children generally or any child".

However, it would be helpful if the minister were able to indicate firmly on the record that teachers who are discussing matters sexual with children for their protection and not for any other purpose, doctors who, in matters of sexual health, are talking to children or indeed giving them things that are sexual in nature, and responsible publications such as D C Thomson, which I know we can trust in that regard and which has expressed some concerns to me, have the kind of assurances that will enable them to feel in no way inhibited in continuing to do the beneficial things that they do, which, in a narrow sense, could be caught by the provisions in the bill.

Photo of Hugh Henry Hugh Henry Labour 3:15 pm, 2nd June 2005

I understand what Pauline McNeill and Margaret Mitchell are attempting to achieve with the amendments in their names, but I cannot support those amendments. I turn first to amendment 36, in the name of Pauline McNeill. It would be wrong to be prescriptive about whom a chief constable should consult in considering an application for an RSHO. Every case will be different, and it will be necessary to consult different parties in each individual case. If the bill required some parties to be consulted but not others, it could be assumed that it is not necessary to consult the others, even though it most certainly could be necessary in some cases. I would prefer that we issue guidance on the act setting out for chief constables the criteria that they should take into account in considering an RSHO. The guidance will also list those whom they should consider consulting before making an application. That is a more appropriate way of dealing with that than setting it out in the bill.

What is made explicit in the bill, however, is that applications should be made only in cases where the chief constable considers that inappropriate behaviour has occurred on at least two occasions and that the person in question poses a risk of sexual harm to a child or to children generally. Pauline McNeill is right to point out the seriousness of the measure, to indicate that it could be far reaching, but she recognises that it is right for us to take action to protect children from serious harm.

Stewart Stevenson raises a point that was touched on earlier by Margaret Mitchell, to do with concerns expressed in relation to sex education, sexual health advice or indeed what may be included in some teenage magazines, and the fear that teachers, doctors and journalists or editors might be caught by the provisions in the bill. I want to put it on record and to give the assurance that groups or individuals communicating with a child about sexual matters for the purposes of sex education or health education will not result in an application for a risk of sexual harm order. However, I would not want that to be taken as carte blanche for irresponsible and inappropriate activity, either by any individual in those professions or by any groups. Responsible people behaving in a responsible manner and acting appropriately for the purposes of their profession would not be exposed to the risk of an application for a risk of sexual harm order. However, with that would go the warning that anyone who behaved inappropriately would leave themselves open to the risk of action, should that be appropriate.

Before applying for an order, the chief constable would have to believe that the person in question posed a risk of sexual harm. Before making an order, the sheriff would also have to be convinced that the person presented a risk of sexual harm to a child or to children. Those who are properly providing advice to young people should therefore continue to do so. They will not be caught by the provisions. I state in the clearest terms that it is not our intention to interfere with such advice or prevent it from being given. It is also worth noting that similar provisions were introduced for England, Wales and Northern Ireland in the Sexual Offences Act 2003 without any specific exceptions for those providing advice.

I understand the intention behind amendment 37, in the name of Margaret Mitchell, but it would not be wise to accept the amendment. Let us consider for example a person who is accused of committing a sexual offence against a child and is found not guilty of that offence. As members will be aware, such a verdict does not prove that the offence did not take place. It means rather that the case was not proved beyond reasonable doubt. However, it might still be possible to conclude on the balance of probability that the incident took place and we believe that if it was combined with a further such incident, it should be admissible for the purposes of making an RSHO, not ruled out by virtue of the previous criminal trial.

Photo of Phil Gallie Phil Gallie Conservative

The minister said that doubts still remain about someone who is found not guilty in a trial. My understanding, which perhaps stretches the point, was that that might be the case if a court returned a not proven verdict but, surely, someone who is found not guilty is not guilty.

Photo of Hugh Henry Hugh Henry Labour

I have tried to explain that point, but I will go back over it. Phil Gallie is right in that if someone is found not guilty, it means that the case was not proved beyond reasonable doubt. The point that I am trying to make is that it might be possible to conclude on the balance of probability that an incident took place. We are talking about two different tests—a criminal test and a civil test—and saying that it is right that we should be able to take into account something that, on the balance of probability, we believe to have happened. To repeat the point, it is only right that the police and the courts should be able to take into account all sexually inappropriate behaviour against children to protect a child from further risk and there might be circumstances in which an incident that resulted in a not guilty finding should be used as part of an application for an RSHO.

Photo of Margaret Mitchell Margaret Mitchell Conservative

Amendment 37 is a probing amendment to aid understanding of how that would work. What would happen if someone was found not guilty because the case was time barred, but sufficient evidence had been gathered to give cause for concern? Could that be a circumstance in which it would be legitimate to use the incident?

Photo of Hugh Henry Hugh Henry Labour

There could be a range of reasons why someone was found not guilty or action was not proceeded with. I emphasise that we would not be taking criminal proceedings against such a person for the incident, as we would not be saying that they had committed a criminal offence—that brings us back to Phil Gallie's question—but saying that there was reason to believe that they posed a risk of sexual harm to children. In those circumstances, it is our duty to protect the children who are involved, which is why we are proceeding as we are.

Photo of Pauline McNeill Pauline McNeill Labour

I accept that we could be too prescriptive about who is to be consulted and I withdraw amendment 36 on the understanding that, as the bill stands, the only person who has the right to gather information is the chief constable—no one else is mentioned in the bill—and on the understanding that the minister will produce guidance, which is the most sensible way to proceed. I hope that, in due course, the relevant committee will get to see the guidance that is issued.

Amendment 36, by agreement, withdrawn.

Amendment 37 not moved.

Photo of Trish Godman Trish Godman Labour

Group 3 is on RSHOs and referral to Scottish ministers. Amendment 38, in the name of Stewart Stevenson, is in a group on its own.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

The minister will know of the concerns that voluntary and other bodies that work with children have about the bill, as those concerns form a theme that has run through discussion of the bill. Under previous legislation, those bodies are required to obtain from Disclosure Scotland information that tells them whether people are fit and proper to work with children. The difficulty is that when an RSHO is granted there is no process whereby that information is provided to Disclosure Scotland and is therefore available to anyone who performs checks on people. My amendment 38 seeks to provide sheriffs with the power to refer cases to the Scottish ministers and to ask them to consider whether someone against whom an RSHO has been granted should be added to Disclosure Scotland's list of people who are unsuitable to work with children. The amendment would leave open the process of referring back to the sheriff any appeal of the decision that is made.

I will describe a scenario that illustrates the concerns that YouthLink Scotland and the organisations that it represents have about the administrative procedure by which it will be possible, under the provisions of the bill, eventually to get someone with an RSHO on the list at Disclosure Scotland. Of course, the minister may well disagree with aspects of the scenario, in which case I will be happy to hear from him. It is a complicated issue.

When the court grants an RSHO, the person's employer—that includes a person who is responsible for a volunteer—will be notified, if that is appropriate. It is then up to the employer to consider what action is appropriate. If the RSHO requires that the person must not work with children, the onus is on the employer to take the necessary action. In the case of small employers or bodies, the person might have to be fired because there are no positions that do not involve working with children. The bill gives no statutory right for the employer to fire the person. Under employment legislation, the option is open for them to dismiss the person. That would be subject to review in the normal way and people could challenge it. Only after the person has been fired would they end up on Disclosure Scotland's list.

I describe the situation as I understand it. There may be other views, but it appears that there is a huge onus on organisations, and particularly on small ones. Such organisations were alarmed about the burden that was placed on them by the need for them to check with Disclosure Scotland when they employ people who will work with children, although they are now reassured. However, the core of the concern is that unless the matter is put on a statutory basis, failings in the system will put children at risk. It will certainly make things more complicated for voluntary bodies and there is concern that they might withdraw or reduce their commitment.

Unless we put the matter on a statutory basis that enables us, in the quickest and most effective way, to put people against whom RSHOs have been granted on to Disclosure Scotland's list of people who are unsuitable to work with children, we will have a problem. I hope that the minister will reassure us that we will not put children at risk by leaving the gap and that there is another way forward, or that he will accept the amendment. I will be interested to hear what he has to say. We have not resolved the matter yet and this is the last chance saloon for us to do so.

I move amendment 38.

Photo of Hugh Henry Hugh Henry Labour 3:30 pm, 2nd June 2005

I agree with Stewart Stevenson that we should do nothing that puts children at risk. I wholeheartedly agree that if RSHOs are sought against people who work in child care positions, their employers should be told about it. We are working on the implementation of the Bichard recommendations, and when they are fully implemented, employers will be notified as a matter of course where appropriate. However, that new system is still a couple of years down the line. I acknowledge that in the meantime we need an interim system that will work effectively to ensure that in appropriate circumstances employers are told if an RSHO is sought against one of their employees. That would allow the employer to consider whether they need to take action. There is therefore no real difference between small and large organisations or what currently pertains to legislation.

I will be quite clear about this: I do not believe that an automatic referral to the list of people who are disqualified from working with children is an option. Amendment 38 is defective in a number of ways. It does not link in with the legislative scheme for including people on the list of those disqualified from working with children that was established under the Protection of Children (Scotland) Act 2003. That means that the procedure for putting someone on the list, such as giving the person an opportunity to make representation, giving notice of inclusion, rights of appeal and so on would not apply. The Protection of Children (Scotland) Act 2003 sets out the criteria that the courts must take into account before referring a person for automatic inclusion on the list, but amendment 38 sets out no such criteria.

Photo of Margaret Mitchell Margaret Mitchell Conservative

The minister said that the Bichard recommendations will not be implemented for some time, so there will be interim guidance. Is that not justification for supporting Stewart Stevenson's amendment, because it would provide that added protection now?

Photo of Hugh Henry Hugh Henry Labour

To repeat two points, I said that we need an interim system that will work effectively and that will allow employers to consider whether they need to take action, and I believe that there is a fundamental defect in the amendment. Not only are we taking steps to put in interim measures, but it would be wrong to introduce a measure that we believe to be defective.

It is true that the current legislation allows for referral from the courts as a result of criminal conviction and anyone referred in that way is automatically placed on the list. However, to give the sheriff the power to refer for automatic inclusion on the list, with all the consequences for an individual's livelihood, on the basis of a civil order that can be time bound and quite specific, would raise important issues under the European convention on human rights. An administrative procedure that works within the current Protection of Children (Scotland) Act 2003 is the most effective way to achieve the outcome that we seek, which is getting the information to the employer and putting the person on the list in cases where that is appropriate.

We will develop guidance, along with the police, to ensure systematic consideration of the need to disclose information in respect of an individual being considered for or issued with an RSHO. In building the case to apply for an RSHO, the police will be expected to ascertain the individual's access to and dealings with children, including employment or other voluntary activities. Where an RSHO is made, the police will consider whether it would be appropriate for the existence of the RSHO to be disclosed to the employer or to a voluntary organisation. If the subject of the RSHO is employed in a child care position or works with children in a voluntary capacity, that would certainly be grounds for the information to be disclosed.

To ensure that organisations are not left wondering what to do when they are told about an RSHO, we will issue guidance explaining RSHOs and encouraging organisations to assess whether it would be appropriate to move the person from working with children or to dismiss them as a result of the information. The guidance will remind organisations of their duty, if they take action, to refer the person to Scottish ministers for consideration for inclusion on the list. Even if the person is not placed on the list, if a subsequent disclosure check is made, the fact that an RSHO demonstrates concern about a risk to a child or children would be grounds for information about its existence to be released. So whether a person is currently working with children in a paid or unpaid capacity, or applies to work with children, I am confident that information about the existence of the RSHO will be and can be released to their employer, prospective employer or voluntary organisation.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

Is the minister saying that, under all circumstances, all RSHOs pertaining to children will prohibit or inhibit someone from working, or from doing things that would end up known to Disclosure Scotland?

Photo of Hugh Henry Hugh Henry Labour

I think that that would be a logical conclusion. There might be circumstances that do not come to mind at the moment where that might not happen. That would be the logical conclusion, however.

I am confident that the employer or voluntary organisation will have sufficient guidance to know how to deal with the information. Some might view the requirements as an additional burden on organisations. In reality, however, employers and voluntary groups must assess the risk to children from their workers when they recruit or when any concern comes to light. I hope that child care organisations will be reassured, and that Stewart Stevenson, given those assurances, will accept that his amendment should be withdrawn.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

I am slightly worried about a lack of clarity on the question whether the RSHO would, where appropriate to children, always end up on the register.

Photo of Cathy Jamieson Cathy Jamieson Labour

Fro the avoidance of doubt, if someone is working in a child care position and an RSHO is sought against them, that information will immediately be notified to the scheme. It will then be available for the organisations concerned. That person's suitability to work with children would then require to be reassessed. Their employer would be notified of any change in status.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

That is crystal clear. I make the general observation that, in seeking to introduce risk of sexual harm orders, we are acknowledging the fact that the criminal justice system cannot completely cover the risks in the ways that we would wish. That is why we agree with the Executive as a matter of policy in supporting the introduction of RSHOs.

I am delighted that the minister has assured us that, in all instances, the RSHO, where it concerns children, will end up being noted on the list. People making inquiries of Disclosure Scotland will therefore not fail to see that a relevant RSHO is in place. That is at the core of what we are trying to achieve. On that basis, and with that assurance, I seek to withdraw the amendment.

Amendment 38, by agreement, withdrawn.

Photo of Trish Godman Trish Godman Labour

Group 4 is on the serving of RSHOs and interim RSHOs. Amendment 39, in the name of Margaret Mitchell, is grouped with amendment 45.

Photo of Margaret Mitchell Margaret Mitchell Conservative

Amendments 39 and 45 seek to ensure that there can be absolutely no doubt that the subject of an interim or full RSHO realises and is aware that the order has been served on them. That is necessary, given the sensitive nature of such orders and in recognition of the fact that, if an order is breached, the subject of that order is automatically guilty of a criminal sexual offence. That in turn can have far-reaching consequences regarding disclosure, employment and public hostility. It is important to make the crucial distinction in how the orders are served and to ensure that they are served by sheriff officers.

I move amendment 39.

Photo of Hugh Henry Hugh Henry Labour

The bill was amended at stage 2 so that it now specifies that an application for an RSHO

"shall be made by summary application."

As such, the normal sheriff court summary rules will apply. Those rules already contain provisions on the service of court orders. We expect specific summary application rules to be made in due course to provide further detail about how persons will be notified of the existence of RSHOs.

Such court rules have recently been made in connection with antisocial behaviour orders. The rules require that an ASBO must either be given to a person who is in court when the order is made or be sent to the person by recorded delivery or registered post. I am of the view that a similar provision would be suitable for RSHOs. Requiring a sheriff officer to serve the order on the person in all circumstances is both costly and unnecessary. In any event, the appropriate place for rules about the service of court orders is the summary application rules. Margaret Mitchell's amendment 39 is therefore unnecessary.

Photo of Trish Godman Trish Godman Labour

Before I call Margaret Mitchell I ask members to be just a little bit quieter. Miss Mitchell, please wind up and indicate whether you intend to press or withdraw your amendment.

Photo of Margaret Mitchell Margaret Mitchell Conservative

I will press amendment 39, because I think there has been a failure on the part of the minister to recognise that there is a difference between breaching an antisocial behaviour order for something such as vandalism and breaching an RSHO with the sexual connotations that it has. For that reason I remain convinced that RSHOs should be served by sheriff officers.

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 39, in the name of Margaret Mitchell, be agreed to. Are we agreed?

Members:

No.

Division number 1

For: Aitken, Bill, Ballance, Chris, Ballard, Mark, Brocklebank, Mr Ted, Byrne, Ms Rosemary, Curran, Frances, Davidson, Mr David, Douglas-Hamilton, Lord James, Fergusson, Alex, Fox, Colin, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, Harvie, Patrick, Johnstone, Alex, Milne, Mrs Nanette, Mitchell, Margaret, Ruskell, Mr Mark, Scanlon, Mary, Scott, John, Tosh, Murray
Against: Adam, Brian, Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baker, Richard, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Gibson, Rob, Gillon, Karen, Glen, Marlyn, Gorrie, Donald, Grahame, Christine, Henry, Hugh, Home Robertson, John, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McFee, Mr Bruce, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robison, Shona, Robson, Euan, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stevenson, Stewart, Stone, Mr Jamie, Sturgeon, Nicola, Swinburne, John, Turner, Dr Jean, Wallace, Mr Jim, Watson, Mike, White, Ms Sandra, Whitefield, Karen, Wilson, Allan

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 21, Against 88, Abstentions 0.

Amendment 39 disagreed to.