Joint Committee on Human Rights Twelfth Report


Appendix 2: SEXUAL OFFENCES BILL

Memorandum from the Home Office

1.  This memorandum is submitted by the Home Office in response to the letter from the Chair of the Joint Committee on Human Rights to Lord Falconer dated 1 8th March 2003 requesting answers to a number of questions in relation to the Sexual Offences Bill.

Sexual touching and children under the age of 13

Does the Government consider that making children under 13 potentially criminally liable for consensual kissing, under clause 6 of the Bill, would serve a legitimate aim under ECHR Article 8.2? If so, what is the aim?

Does the Government consider that imposing criminal liability on children under 13 in such circumstances would address a pressing social need, and would be proportionate to the aim pursued? If so, what is the pressing social need, and why is criminalizing children thought to be a proportionate response to it?

Does the Government consider that imposing a potential criminal liability on children aged 13 for kissing children aged 12 or under with the consent of the latter would serve a legitimate aim, and be a proportionate response to a pressing social need? If so, why?

2.  We should like as a background to our response to draw the Committee's attention to the fact that the Government is not changing the law by including consensual sexual kissing between two 12 year olds within the scope of the criminal law. Both would currently commit an offence of indecent assault (sections 14 and 15 of the Sexual Offences Act 1956 (the 1956 Act)), since a child under 16 cannot consent to an indecent assault. The Government is not, however, aware of any prosecutions concerning consensual sexual kissing by 12 year olds.

3.  The legitimate aim under Article 8.2 served by clause 6 of the Bill is principally the protection of the rights and freedoms of others. The Government considers that children under 13 have the right to be protected from all forms of sexual activity. Arguably, clause 6 also serves the legitimate aim of protecting morality, but the Government's principal concern is child protection. It may be that some children close to the age of 13 have the maturity to understand the nature of sexual activity but there will be many other children who do not, and the Government considers that the balance is correctly struck by protecting the vulnerable. This applies irrespective of the age of the other participant — research indicates that adolescent sex offenders probably account for up to a third of all sex crime and many of these will offend against others of a similar age.

4.  In addition, by removing the need to prove lack of consent, clause 6 serves the purpose of protecting children under 13 from cross~-examination about sexual issues. Without clause 6, the prosecution would have to prove lack of consent in a case concerning the non-consensual sexual assault of a child under 13. The evidence is that children of this age who face cross-examination about consent inevitably involving cross-examination about their sexual knowledge and experience can be severely damaged as a result.

5.  Of course, any age limit is to some extent arbitrary, but the Government considers that the age of 13 is the right place to draw the line and notes that it is well-precedented as a threshold in sex offence legislation. The offence of sexual intercourse with a girl under 13 (section 5 of the 1956 Act) carries a maximum penalty of life imprisonment whereas the offence of sexual intercourse with a girl between 13 and 16 (section 6 of the 1956 Act) carries a maximum penalty of two years' imprisonment. Although the age of the onset of puberty is variable, Setting the Boundaries commented that the thirteenth birthday was recognised by society as the entry to teenage years and is therefore a key milestone in the child's passage towards adolescence and eventual adulthood.

6.  The Government considers the discretion of the prosecutor is key to ensuring that clause 6 is used proportionately and the Government intends to make this clear during the passage of the Bill in Parliament. In exercising his discretion as to whether or not to prosecute under clause 6, the prosecutor must always consider whether there is a public interest in prosecuting and must also, by virtue of the Human Rights Act 1998, consider whether a prosecution would be compatible with Article 8. Even where the sexual activity in question is abusive, the Government considers that a prosecution will in many cases fail these tests since providing the offender with support and care through social services may well be more appropriate. This was the line taken in Setting the Boundaries and it received wide agreement on all sides. Where the sexual activity is genuinely consensual, is low level sexual activity and involves two children close to the age of 13 and of a similar age to each other, the Government expects that, even where this comes to the attention of the authorities, it is almost inconceivable that it will be in the public interest to bring a prosecution.

7.  In looking at the proportionality of its proposals, the Government considered whether to try to make exceptions to the prohibitions, or to formulate the law in a more targeted way. It took the view that in dealing with an area of law concerning children as potential victims of abuse, their protection (including their rights under the ECHR) should be seen as paramount. Any approach to dividing the law in this area brought anomalies and could leave gaps, weakening the present protections afforded to children. It could also be over complex and lose the simplicity necessary for the law to be understood and workable. For example, if it is acceptable in law for two 12 year olds to kiss sexually, what about a 16 year old with a 12 year old? Where should the line be drawn in defining acceptable activities? If sexual kissing is acceptable, what about masturbation? Should there be a distinction according to whether the masturbation is or is not through clothing? All such activity could be potentially abusive even if ostensibly consensual and even if done between children of similar age. The Government therefore believes the right course is to maintain the existing prohibitions, offering maximum protection to children, but with prosecutorial discretion allowed and indeed expected.

8.  The Government considers that everything said above applies equally to the situation where a child of 13 engages in consensual sexual kissing with a child of 12.

People with mental disorders or learning disabilities

Does the Government consider that clause 33 of the Bill engages the right to respect for private life?

If you consider that it does, why does the Government consider that criminalising the behaviour, in the circumstances outlined above, would advance a legitimate aim under Article 8.2 and would be a proportionate way of responding to a pressing social need so as to be justifiable under Article 8.2?

9.  The Government considers that clause 33 of the Bill engages the right to respect for private life (see X and Y v the Netherlands (judgment of European Court of Human Rights of 27th February 1985)). The legitimate aim pursued is that of the protection of the rights and freedoms of others. Where a person does not have the capacity to choose whether or not to engage m sexual activity or is unable to communicate his choice, the Government believes that protection from abuse becomes the overriding issue and that involving that person in sexual activity can never be defended. The Sex Offences Review which led to Setting the Boundaries heard extensive evidence to the effect that vulnerable people are targeted for sexual abuse and that such individuals are far more likely to become the victims of abuse than those without such a disability. As a result, Setting the Boundaries recommended an offence along the lines of clause 33.

10.  Where the perpetrator of a clause 33 offence is himself a person who has a mental disorder or learning disability, then it seems unlikely he would have the mens rea required by clause 33(1)(d). But if he did so, the prosecutor would still have to decide whether a prosecution would be in the public interest. In the unlikely event that a prosecution went ahead, the court could find the defendant unfit to plead, in which case he would not be convicted of the offence, although he could be ordered to be detained in hospital under the Criminal Procedure (Insanity) Act 1964 and the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 if the jury found he did the act in question. Alternatively, if found guilty of the offence, he could be convicted but ordered to be detained in hospital under the Mental Health Act 1983 if such treatment was considered necessary. In the light of these procedures, the Government considers the fact that clause 33 applies to perpetrators with a mental disorder or learning disability to be proportionate to the legitimate aim of protecting those who are unable to refuse sexual activity.

Mandatory period of notification to the police of young sex offenders

Does the Government consider that clause 84(2) of the Bill would be compatible with CRC Article 40.1 and 40.4?

11.  The Government considers that clause 84(2) is compatible with CRC Article 40.1 and 40.4. Although clause 84(2) does not directly differentiate between children of different ages, the age of the child would have been considered at all stages in the criminal justice process from the initial decision to charge to the imposition of the sentence.

12.  The police refer all cases involving children and sexual offending to a Youth Offending Team prior to a decision being taken on whether to charge the child with an offence. The Youth Offending Team will undertake an assessment of the child which will take into account his age, the likelihood of his re-offending, the impact on the victim and the suitability of alternatives to the criminal justice system. The Youth Offending Team will recommend the most appropriate, and proportionate, intervention for the child but are only likely to suggest proceeding with a prosecution in the more serious cases. Alternative means of addressing the offending behaviour will always be the preferred option, particularly where younger children are concerned. On the basis of the advice from the Youth Offending Team, the police may pass the case to the Crown Prosecution Service who will decide whether it is in the public interest to proceed with a prosecution. Guidance covering the interaction between the police and the Youth Offending Teams is covered in the Framework Document for the Crime and Disorder Act 1998 published by the Home Office in September 1998. In 2002, the Youth Justice Board also published Effective Practice Guidance on dealing with young people who sexually abuse which was drawn up in conjunction with the NSPCC. The guidance stresses the need for child protection agencies to be involved in the assessment.

13.  The courts will then also take account of the child's age following conviction when considering the appropriate disposal (Part 4 of the Youth Court Bench Book specifically mentions the need to take into account the offender's age and maturity when sentencing). This is important, because, unless the offence is a serious offence (for example, rape or assault by penetration), the notification requirements are only triggered for offenders under the age of 18 where the offender is sentenced to a term of imprisonment of at least 12 months (see Schedule 2 to the Bill). The sentencing process therefore determines in many cases whether or not the child is to be subject to the notification requirements at all. The term "imprisonment" is short hand because offenders under the age of 21 are not sentenced to imprisonment (section 89 of the Powers of Criminal Courts (Sentencing) Act 2000). When dealing with young persons, the courts have available a number of sentencing options, including Referral Orders, discharges, fines, Supervision Orders, community orders, Action Plan Orders and Attendance Centre Orders. Imprisonment, in the form of the custodial element of a Detention and Training Order, would only be used where the offence was serious enough to warrant a period of custody and the court was satisfied that such a sentence was necessary for the protection of the public. Such orders can vary in length from four months to a maximum of 24 months, so an order involving 12 months' detention would only be used in the more serious cases. It should also be noted that Detention and Training Orders can only be used for those under 15 (at the date of conviction) in the case of a persistent offender, and they are also not available at all for children under 12. This means that where an offence is subject to a sentence threshold, no child under 12 will be made subject to the notification requirements.

14.  Where the offence is by definition always a serious one and therefore no sentence threshold applies, the Government considers that the offending behaviour by that child, whether aged 10 or 18, is sufficiently serious to justify applying the notification requirements to that offender. This view is reached taking into account the fact that the CPS will have taken the decision to proceed with the charge in the public interest, which will have included a consideration of the child's age. In such cases, the requirement to notify will also bring with it access to treatment programmes and the management of the offending behaviour by the relevant agencies.

15.  The sentencing process also determines the length of time for which the young offender will be subject to the notification requirements. As explained above, when sentencing the offender, the courts will take into consideration the age of the child. So although the period for which the notification requirements will apply to the young offender is the same under clause 84(2) whether that offender is 10 or 18, the court will have taken into account the particular age of the child and the circumstances of the offence in passing the sentence that determines that period.

16.  When considering this question it is also important to bear in mind that the notification requirements under the Bill are an administrative requirement and not a penalty. They are aimed at ensuring that the police are able to know the whereabouts of convicted sex offenders who have committed sexual offences at the more serious level of offending. Their status as an administrative measure and not a penalty was confirmed in Ibbotson v UK [19991 Crim. L.R 153, which was heard by the European Commission of Human Rights, and A damson v UK (1999), an admissibility decision heard by the European Court of Human Rights. Being subject to the requirements means that the child must report to the police station to notify his details, any changes to these and on an annual basis to reconfirm those details. The information given to the police is not disclosed to members of the public. The Government therefore considers that this is a proportionate means of dealing with young offenders who have committed sexual offences of the level of seriousness set in the Bill to trigger the requirements.

17.  Moreover, the Bill makes available to the court (at clause 91) the option of making a parental direction when the offender subject to the requirements is under 18 (or in Scotland, under 16). The effect of such a direction is to make a person with parental responsibility for (or in Scotland, parental responsibilities in relation to) the young offender, responsible for complying with the notification obligations on behalf of the child and ensuring that the child attends with him in doing so. The court will again take into account the age of the young offender when considering whether or not to make such a direction.

18.  Finally, UK compliance with the CRC has been subject of scrutiny by the UN Committee on the Rights of the Child on two occasions, most recently in September 2002, and the issue of a notification period that applies to all young offenders has not been raised as an issue of concern.

Risk of Sexual Harm Orders

Does the Government consider that an application for the making of a Risk of Sexual Harm Order or interim order would involve the determination of a criminal charge for the purposes of ECHR Article 6?

If not, what does the Government consider would be the applicable standard of proof in the light of the decision of the House of Lords in R (McCann) v Crown Court at Manchester [2002] UKHL 39, [2002] 3 WLR 1313 HL?

Does the Government intend that an order could be made in the absence of the person against whom it is sought? If so, what procedural protection would be put in place to ensure compliance with Article 6 requirements, bearing in mind that the making of an order may do harm which could not be remedied by a fair appeal or review hearing?

Would it be possible to specify on the face of the Bill the applicable standard of proof and the need for the hearing of an application to be inter partes?

19.  The Government does not consider that an application for the making of a Risk of Sexual Harm Order (RSHO) or interim order would involve the determination of a criminal charge for the purposes of Article 6, but rather that such proceedings will be civil for those purposes. The RSHO will share many characteristics in common with other civil orders which have been upheld as civil for Article 6 purposes by the courts. These include antisocial behaviour orders and football banning orders, which similarly do not require any previous criminal convictions and breach of which constitute a criminal offence. As with these other orders, the purpose of the risk of sexual harm order is prevention of harm and public protection, as opposed to punishment. The Government is confident that the reasoning behind the decision on civil classification in the case of McCann referred to in the question applies equally to the RSHO and interim order and that they will be classified as civil.

20.  Also in line with McCann, the Government considers the standard of proof to be applied by the magistrates court when hearing an application for a RSHO will be the criminal one. It is not considered necessary to specify this on the face of the Bill and indeed it would be unusual to do so. The Government will however make it clear in the guidance accompanying the RSHO that the criminal standard of proof will apply. This guidance, in draft, will be available for consideration alongside the RSHO clauses during the passage of the Bill through Parliament.

21.  It is not intended that an application for a RSHO or an interim order may be made ex parte. The application procedure for both orders is by complaint to the magistrates court. This procedure is set out at sections 51 to 57 of the Magistrates' Courts Act 1980 (the 1980 Act). Once an application is made to the court, a summons will be sent to the defendant requiring him to attend the hearing. Although the court has the discretion to proceed in the absence of the defendant under section 55 of the 1980 Act, the discretion may only be exercised if the defendant has been given sufficient opportunity to attend. Of course, any decision to proceed in the absence of the defendant will be amenable to judicial review.

22.  The Government does not intend to specify on the face of the Bill that the application for a RSHO or interim order must be inter partes as we consider that this is already apparent from the provision in clause 110(1) that the application is by complaint — and the relevant sections in the 1980 Act providing that this is an inter partes procedure. The fact that the procedure is inter partes will however also be made clear in the guidance accompanying the RSHO, which, as mentioned above, will be available in draft during the passage of the RSHO clauses through Parliament.

March 2003


 
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