Section 5 — Interim RSHOs

Protection of Children and Prevention of Sexual Offences (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:45 pm on 2nd June 2005.

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Photo of Trish Godman Trish Godman Labour 3:45 pm, 2nd June 2005

Group 5 is on interim RSHOs. Amendment 42, in the name of Kenny MacAskill, is grouped with amendments 43, 44 and 46.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

Amendments 42 and 46 originated from the Law Society of Scotland—[ Interruption. ]

Photo of Trish Godman Trish Godman Labour

Members will need to be just a little bit quieter. That would be helpful to the speaker and to us up here.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

It is a good thing that we are talking about RSHOs rather then ASBOs.

The amendments in Kenny MacAskill's name are intended to bring the wording in the bill more closely into line with the way in which other legislation is worded. The effect of amendment 42, therefore, is technical.

Amendment 46, however, relates to an important policy issue. If an interim RSHO is taken as the precursor to a full hearing of the case for the granting of an RSHO but it is not followed up by such a hearing, the person who was subject to the RSHO is entitled to have their character returned to the state that it was in at the outset. We know perfectly well that, in this delicate and difficult area of public policy, malicious accusations are made from time to time. It is right that those accusations be tested, because we cannot tell at the outset whether they are malicious. If an interim RSHO is granted and it transpires that the basis on which it was granted was false and, therefore, no full order will be granted, the person concerned is entitled to have their character returned to a lily-white state.

The SNP will support Margaret Mitchell's amendments, which relate to the setting of periods.

I move amendment 42.

Photo of Margaret Mitchell Margaret Mitchell Conservative

It is nice to start on a note of unity. The Conservatives will be supporting the amendments in Kenny MacAskill's name, which were inspired by the Law Society of Scotland, on the basis that the addition by amendment 42 of the term

"in the interests of justice" would make the process more transparent and that amendment 46 is fair and reasonable.

Amendment 43 stipulates that the interim order should be in place for a maximum of three months, rather than the unspecified fixed period in the bill, and amendment 44 would ensure that, where an application has been made for extending the period of the order's effect, that period should be limited to a maximum of an additional three months.

Photo of Hugh Henry Hugh Henry Labour

I have listened to Stewart Stevenson, who spoke to Kenny MacAskill's amendments, and to Margaret Mitchell, but I am unconvinced that their amendments are necessary. Despite Stewart Stevenson's comments on amendment 42, I cannot for the life of me see the difference between saying it is "just" to do something and saying that it is

"in the interests of justice" to do something.

However, not being a lawyer, I thought that I should have the matter checked out. After all, Kenny MacAskill, who comes from that noble profession, might well have some insight into it that I did not have. When I asked our lawyers to double and triple-check that I was not missing anything, they said that they could not see any significant difference between the two terms. Indeed, they believe that our formulation is more appropriate.

The effect of both formulations is the same. The sheriff cannot make an interim RSHO unless he is satisfied that it is just to do so. As a result, he would have to be satisfied that it is

"in the interests of justice" to make the order. I hope that that is clear; indeed, I think that users of the legislation will certainly consider the matter to be clear. Perhaps members of the Law Society of Scotland will argue over the matter on cold, dark, wet nights when they have nothing better to do, but I do not think that amendment 42 is necessary.

I am also not convinced that amendment 46 is necessary. When the committee and I discussed the matter at stage 2, the committee agreed that an amendment was unnecessary. I believe that, even in cases in which an RSHO is not granted, the type of behaviour that leads to the application is sufficiently serious for the information to be kept. The police hold what might be regarded as soft information about people for a variety of reasons.

Indeed, it is vital that they do so; after all, if they have suspicions about someone, we rely on them to retain intelligence about that person to assist them in preventing potential crimes.

Moreover, there are various reasons why an RSHO might not be made. For example, it might not be possible to prove that the alleged behaviour took place. The sheriff might not be convinced by the evidence before the court that the person is a risk to children. I am sure that we would agree that, if a sheriff is not convinced of such things, he should not make an RSHO. However, that does not mean that the police should not be able to retain information about the person's behaviour if they still suspect that the person might be a risk. If they retain information on such behaviour, it is surely ludicrous not to retain the fact that an interim RSHO had once been made. What happens if the person in question engages again in sexually inappropriate behaviour with the child? If information about previous behaviour is not retained, it will appear as though that is the first incident of such behaviour.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

Although one might argue that that is the effect of amendment 46, the intention behind it is certainly not to expunge from the record the information that leads the police to apply for an interim RSHO. After all, if, because of repeated malicious accusations from the same source, such information had turned out to be false, one would wish to retain that fact.

With all due respect, however, I should say that that issue is quite different from that of deleting from available records the fact that an interim RSHO had been granted. I would be interested to hear the minister confirm whether he has been advised that the effect of amendment 46 would be that the police were required to delete that information. That is neither the intention behind the amendment nor the understanding that I or the Law Society have.

Photo of Hugh Henry Hugh Henry Labour

I accept Stewart Stevenson's comments about the intention behind amendment 46. However, we are worried that it could have the undesired effect that I have set out. I will come later to his point about malicious and vexatious allegations.

Because it would not be possible to make another application for an RSHO until the person behaved in such a way again, a child could be put at more risk. Even worse, if a person were to move to another police force area and behave in such a way, the police in that area would be entirely unaware that that person had already come to the police's attention for those reasons. Indeed, we have had some cases in which people have moved between police force areas but information has not been properly transferred and the people have gone on to commit serious offences.

The Justice 1 Committee expressed concerns at stage 2 about cases in which full orders are not made because it had become apparent that an allegation had been malicious or vexatious. I explained in a letter to the committee that information about the complainant and the interim order would not be retained in such cases. A robust reviewing and weeding policy underpins the retention of police intelligence, and information found to be based on malicious or vexatious allegations would be deleted. The only circumstances in which information might be kept would be if it allowed the police to put together a case against the person making vexatious allegations. Stewart Stevenson has correctly drawn attention to the fact that we might need to be able to act on behalf of the person who is the victim of such vexatious or malicious allegations. However, I assure members that, in such cases, the information would be retained purely on the basis that the subject of the allegation was a witness to the case.

Moving on to amendments 43 and 44, in the name of Margaret Mitchell, I make it quite clear that an interim RSHO cannot be sought unless it is accompanied by the main application or unless the main application has already been made. An interim RSHO has effect only for the fixed period specified in the order and will cease to have effect, if it has not already done so, on the determination of the main application. The normal sheriff court summary time limits will apply to the determination of the main application, so it would not be possible for interim RSHOs to apply for long periods without the sheriff court considering whether a full application should be made. I hope, therefore, that Margaret Mitchell will agree that her amendments are unnecessary, that she is reassured by what I have said and that she will not move amendments 43 and 44.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

I shall seek leave to withdraw amendment 42, on the basis that we can let the lawyers fight it out and see whether the minister gets any invitations to Drumsheugh Gardens.

I shall press amendment 46, however, because I am not satisfied with what I have heard. It seems that I am being told that, if interim RSHO information is retained, that information will be available to chief constables other than the one who applied for the interim order, yet the intelligence that led to the granting of the interim order would not be available. I am not at all convinced that that is a reasonable line of argument and that it is not possible to share intelligence across Scottish police forces without the fact being recorded that an interim RSHO has been made. I shall certainly protect our position by moving amendment 46 when the time comes.

Amendment 42, by agreement, withdrawn.

Amendment 43 moved—[Margaret Mitchell].

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 43 be agreed to. Are we agreed?

Members:

No.

Division number 3

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

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 45, Against 65, Abstentions 0.

Amendment 43 disagreed to.

Amendment 44 moved—[Margaret Mitchell].

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 44 be agreed to. Are we agreed?

Members:

No.

Division number 4

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

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 44, Against 66, Abstentions 0.

Amendment 44 disagreed to.

Amendment 45 moved—[Margaret Mitchell].

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 45 be agreed to. Are we agreed?

Members:

No.

Division number 5

For: Aitken, Bill, Baird, Shiona, Ballance, Chris, Ballard, Mark, Brocklebank, Mr Ted, Davidson, Mr David, Douglas-Hamilton, Lord James, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, Harvie, Patrick, Johnstone, Alex, Milne, Mrs Nanette, Mitchell, Margaret, Ruskell, Mr Mark, Scanlon, Mary, Scott, Eleanor, Scott, John, Tosh, Murray
Against: 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, Leckie, Carolyn, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Mather, Jim, 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, Munro, John Farquhar, 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, Sturgeon, Nicola, Swinburne, John, Turner, Dr Jean, Wallace, Mr Jim, Watson, Mike, White, Ms Sandra, Whitefield, Karen, Wilson, Allan
Abstentions: Byrne, Ms Rosemary, Fox, Colin

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 20, Against 87, Abstentions 2.

Amendment 45 disagreed to.

Amendment 46 moved—[Stewart Stevenson].

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 46 be agreed to. Are we agreed?

Members:

No.

Division number 6

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

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 44, Against 64, Abstentions 0.

Amendment 46 disagreed to.