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Lord Falconer of Thoroton: This probing amendment would remove the possibility of the courts making a SOPO against an offender convicted of an offence in Schedule 3 who also presents a risk of causing serious sexual harm. The offences in Schedule

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3 are ones against which a court may make a SOPO either when it deals with the defendant following a conviction for one of the offences or following an application from a chief officer of police. In both cases, the court will need to be convinced that an order is necessary to protect the public from serious sexual harm by the defendant. A conviction for the offence will not of itself be sufficient justification for making the order.

The offences listed in Schedule 3 are mainly violent offences, including murder and the offences listed in Schedule 11 to the Criminal Justice Bill, which relates to the provisions in that Bill dealing with dangerous offenders. However, also included are offences related to child prostitution, pornography and trafficking. We included those offences as offences against which a prevention order may be made because there are offenders who present a risk of causing serious sexual harm but do not have a conviction for a sexual offence. There could be a number of reasons for that; for example, an offender could rape and murder his victim. In such a case, it is possible that only the more serious offence of murder is charged. Alternatively, the offender could commit an offence—for example, kidnapping a child with the intention of sexually assaulting them—but be charged only for kidnapping. Or there might be a trafficker who sexually abuses the woman he is trafficking.

We believe that it is important that the public are protected from such people, and Schedule 3 enables the courts to make a sexual offences prevention order against them where it is appropriate to do so. Such an order will not only place prohibitions on the offenders' behaviour to stop them sexually offending in the future; it will also make them subject to the notification requirements for the duration of the order, thereby enabling the police to know where they are and to manage them in the community.

I acknowledge that there may be concerns about applying a measure that is designed to manage sex offenders to other offenders, who have not been convicted of a sex offence. However, if one considers that, for example, Roy Whiting, who murdered Sarah Payne, would not have been registered as a sex offender by virtue of that offence, nor made the subject of a sex offender order, it should be clear, I believe, that the provision is justified.

It will of course remain necessary for a court to be persuaded that it is proven beyond reasonable doubt that a person with a conviction for a violent offence or one of the other offences in Schedule 3 has demonstrated a risk of serious sexual harm. Our experience is, in any event, that the police do not apply for orders unless they are necessary—they are demanding both in terms of application and monitoring of prohibitions. I do not therefore believe that there will be many sexual offences prevention orders made against offenders with a conviction for violence or for the other offences in Schedule 3 but, where such orders are made, I believe that they will add greatly to the protection of the public.

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I was asked about the evidence that would be required. That depends on the facts in each case. Each case will depend on the evidence. The amendments, which I accept are probing, would take away the possibility that I have described. On this basis, the Government resist the amendment.

Lord Astor of Hever: I am grateful to the noble and learned Lord for his very full response, which clarifies the matter. This was a probing amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 446 not moved.]

Lord Falconer of Thoroton moved Amendment No. 446A:


    Page 51, line 26, leave out "he" and insert "resides in his police area or who the chief officer".

On Question, amendment agreed to.

Clause 103, as amended, agreed to.

Schedule 3 [Other offences for purposes of Part 2]:

Lord Falconer of Thoroton moved Amendments Nos. 447 and 448:


    Page 77, line 25, leave out "racially-" and insert "racially or religiously"


    Page 77, line 26, leave out "racially-" and insert "racially or religiously"

On Question, amendments agreed to.

Lord Astor of Hever moved Amendment No. 449:


    Page 77, line 39, at end insert—


"Murder.
Culpable homicide.
Assault.
Assault and robbery.
Plagium.
Wrongful imprisonment.
Threats of personal violence.
Breach of the peace involving personal violence.
Wilful fireraising.
Culpable and reckless fireraising.
Mobbing and rioting.
An offence under section 16 of the Firearms Act 1968 (c. 27) (possession of firearm with intent to endanger life).
An offence under section 16A of that Act (possession of firearm with intent to cause fear of violence).
An offence under section 17(1) of that Act (use of firearm to resist arrest).
An offence under section 17(2) of that Act (possession of firearm at time of committing or being arrested for offence specified in Schedule 1 to that Act).
An offence under section 18 of that Act (carrying a firearm with criminal intent).
An offence under section 1 of the Taking Hostages Act 1982 (c. 28) (hostage-taking).
An offence under section 1 of the Aviation Security Act 1982 (c. 36) (hijacking).
An offence under section 2 of that Act (destroying, damaging or endangering safety of aircraft).
An offence under section 3 of that Act (other acts endangering or likely to endanger safety of aircraft).

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An offence under section 4 of that Act (offences in relation to certain dangerous articles).
An offence under section 1 of the Prohibition of Female Circumcision Act 1985 (c. 38) (prohibition of female circumcision).
An offence under section 134 of the Criminal Justice Act 1988 (c. 33) (torture).
An offence under section 1 of the Road Traffic Act 1988 (c. 52) (causing death by dangerous driving).
An offence under section 3A of that Act (causing death by careless driving when under influence of drink or drugs).
An offence under section 1 of the Aviation and Maritime Security Act 1990 (c. 31) (endangering safety at aerodromes).
An offence under section 9 of that Act (hijacking of ships).
An offence under section 10 of that Act (seizing or exercising control of fixed platforms).
An offence under section 11 of that Act (destroying fixed platforms or endangering their safety).
An offence under section 12 of that Act (other acts endangering or likely to endanger safe navigation).
An offence under section 13 of that Act (offences involving threats).
An offence under section 51 or 52 of the International Criminal Court Act 2001 (c. 17) (genocide, crimes against humanity, war crimes and related offences), other than one involving murder.
An offence under section 1 of the International Criminal Court (Scotland) Act 2001 (ASP 13) (genocide, crimes against humanity, war crimes and related offences as specified in Schedule 1 to that Act),"

The noble Lord said: The amendment seeks to clarify the relevant offences if they are committed in Scotland, which will enable the specified courts to make "sexual offences prevention orders". The amendment seeks to ensure consistency of approach in the drafting of the Bill for Scotland as well as England, Wales and Northern Ireland; to provide certainty as to the offences covered by the schedule, thereby complying with Article 5 of the European Convention on Human Rights; and to point out that, as currently drafted, there may be discrepancies between the offences covered by Schedule 3 in England, Wales and Northern Ireland and those in Scotland.

The offences in Schedule 3 are relevant to the powers conferred on the court to make sexual offences prevention orders. Under Clause 103, the court may make such an order where any of the provisions in Clause 103(2) to (4) apply and the court is satisfied that certain other conditions are present. Clause 103(2) to (4) refer to a range of offences that are listed in Schedules 2 and 3. Schedule 2 sets out a list of identified offences for Scotland and other parts of the United Kingdom. Schedule 3 departs from that model. It lists by name the relevant offences for England, Wales and Northern Ireland. In the case of Scotland it simply refers to:


    "An offence inferring personal violence, other than an offence listed in Schedule 2".

It is unclear why it has been thought appropriate to list the offences which will trigger such orders if committed in England, Wales and Northern Ireland but not in Scotland.

It could be argued that reference to the phrase,


    "an offence inferring personal violence",

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may not offer the necessary clarity and certainty to ensure that these provisions are compliant with Article 5 of the ECHR. That article provides that the deprivation of liberty is permissible only when it is done,


    "in accordance with a procedure prescribed by law".

That has been taken to mean that the procedure should be foreseeable and predictable so that a person will know in advance whether conduct is likely to be caught by the provision in question. There is an argument that current drafting does not offer that clarity.

To ensure certainty as to the type of offence which might be caught by these provisions, it may be better to list the offences specifically rather than referring to offences "inferring personal violence".

The Scottish courts have construed,


    "an offence inferring personal violence",

by reference to the circumstances of the offence and not the name given to the offence. In the case of Hemphill v Donnelly (1992) SCCR 770, it was held that to threaten violence is not in itself an offence inferring personal violence. Accordingly, offences such as that under Section 16 of the Offences Against the Person Act 1861—threats to kill, paragraph 6—which would be relevant in England and Wales may not be covered under an offence inferring personal violence in Scotland. That could mean that there would be a discrepancy between the offences covered by Schedule 3 in England, Wales and Northern Ireland and those in Scotland.

The amendment would rectify that and ensure a greater clarity in relation to which offences are relevant in Scotland. I beg to move.


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