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Lord Lucas: My Lords, I am grateful to the noble and learned Lord for his explanation and I shall consider what he has said. However, I believe that there is a fundamental difference and a problem to which the noble Lord, Lord Northbourne, and I will want to return at Third Reading. It seems that if an act is of itself sexual because of its nature—for instance, touching someone on the bottom in order to shove a child out of the way of something—it is potentially caught under the Bill. I believe that the jury should not have to consider whether touching a bottom can be sexual, which clearly it can, and then a reasonable person would consider whether it was sexual because of its nature. That would seem to catch touching someone on the bottom.

There is then no need for the purpose or any other circumstance to be discussed in order to satisfy paragraph (b). I would like to see something stronger so that in order to satisfy paragraph (b) there had to be an element of purpose or in another way making it clear that the clause and all those that it serves does not catch anything which an ordinary person would say was innocent because there was no sexual intent. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 182 and 182ZA not moved.]

Clause 83 [Persons formerly subject to Part 1 of the Sex Offenders Act 1997]:

Lord Falconer of Thoroton moved Amendment No. 182A:



"( ) section 20 of the Crime and Disorder Act 1998 (c. 37) (sex offender orders and interim orders made in Scotland);"

The noble and learned Lord said: My Lords, as presently drafted, the Bill preserves only the existing sex offender order-making powers (and interim sex offender order-making powers) in England and Wales and Northern Ireland as provided for in the Crime and Disorder Act 1998; namely, Sections 2 and 2A and Article 6 of the Criminal Justice (Northern Ireland) Order 1998. It does not currently maintain the equivalent sex offender order-making powers and interim sex offender order-making powers that courts in Scotland make under Section 20 of the 1998 Act.

Amendment No. 182A will ensure that on commencement of Part 2 of the Bill, offenders previously subject to the notification requirements of the 1997 Act by virtue of being subject to a Scottish sex offender order or an interim sex offender order will continue to be subject to notification but will now be subject to the provisions of this Bill.

As drafted, the Bill excludes a person who is subject to a sexual offences prevention order or interim sexual offences prevention order—as those orders will apply in Scotland—from being the subject of a parental direction.

9 Jun 2003 : Column 91

Amendment No. 182B seeks to extend the power of courts in Scotland to make parental directions where sexual offences prevention orders or interim sexual offences prevention orders are being considered by a court. Amendment No. 190E provides a new clause that makes specific provision for the application of sexual offences prevention orders as they will apply in Scotland.

While the process mirrors that in England and Wales, the clause makes clear that unlike the position in England and Wales only the police in Scotland will be able to apply for such an order where they take the view that an offender has committed an offence listed in Schedule 3. It also provides that SOPOs can be granted against an extended category of offender in Scotland pursuant to recommendations 40 and 41 of the expert panel on sex offending—that is, the Cosgrove report—whereby a person is convicted of an offence with a significant sexual aspect. As in England and Wales, the court must be satisfied that the order is necessary for the purposes of protecting the public from serious sexual harm from that person. Otherwise the new clause seeks to make specific reference to Scottish terms such as "chief constable", "sheriff" and "sheriffdom".

Amendment No. 190F ensures that in considering what is a sexual offences prevention order in respect of Scotland, the provisions of the new Clause 103A are to be read along with the principal provisions of Clause 103. Amendments Nos. 190G and 190H remove the Cosgrove type of offender from consideration by a court in England and Wales where a SOPO is being sought. Cosgrove type offenders, as introduced by paragraph 52C of Schedule 3, are dealt with in respect of Scottish applications at Clause 103A. In applications in England and Wales, only offenders listed in that schedule and Schedule 4 are to be considered. That mirrors the different approach in each jurisdiction. Courts here will use paragraph 64 of Schedule 4 when considering an offence in Scotland.

Amendment No. 190J introduces an appeal mechanism for offenders in respect of sexual offences prevention orders as they will apply in Scotland in accordance with normal civil procedure in Scotland. It also makes clear that where an appeal has been taken in Scotland a sexual offences prevention order can continue to have effect pending the outcome of the appeal.

The amendment ensures that the procedure works for Scotland and mirrors as far as possible the sexual offences prevention order appeals provisions that will apply in the rest of the UK as well as following the approach that we have put in place in relation to appeals against notification orders in Scotland.

Amendment No. 190K sets out the modifications required for sexual offences prevention orders as they are to apply to Scotland as set out in Clause 103A. I beg to move.

On Question, amendment agreed to.

9 Jun 2003 : Column 92

Clause 91 [Young offenders: parental directions]:

Lord Falconer of Thoroton moved Amendment No. 182B:


    Page 45, line 33, leave out "(except in Scotland)"

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 183:


    Page 46, line 11, leave out from "police" to end of line 13.

The noble and learned Lord said: My Lords, the purpose of the amendments in this group is to ensure consistency across the clauses in Part 2. Amendments Nos. 183 to 189 add the chief officer of police for the area where the defendant resides to those who can apply for a parental direction under Clause 91 and make the same amendment for the chief constable in Scotland. The amendments bring the police officers who can apply for a parental direction into line with those who can apply for a notification order, a sexual offences prevention order, a foreign travel order and a risk of sexual harm order.

Amendment No. 190 adds the chief constable for the area in which a young offender resides to the police officers who can apply for a parental direction to be varied, renewed or discharged in Scotland. That ensures that the provisions are consistent with those that apply to England, Wales and Northern Ireland. I beg to move.

Lord Lucas: My Lords, perhaps I am being entirely dim, but I do not see how Amendment No. 183 achieves that. It removes the requirement that the relevant offender is under 18, which does not appear to have anything to do with the area that a policeman is in or what grade the policeman holds. It removes the requirement that he is in or intends to come into a police area that gives him the extra territoriality so that presumably a police officer in Greater London could take out such an order against someone who was happily living in Glasgow. I cannot match what the noble and learned Lord has said to what Amendment No. 183 says.

Lord Falconer of Thoroton: My Lords, I was speaking to Amendments Nos. 183 to 189; the whole group of amendments achieves that. Amendment No. 185 is the relevant one.

Lord Lucas: My Lords, what is the relevance of leaving out the words "is under 18" in line 12 on page 46 as accomplished by Amendment No. 183?

Lord Falconer of Thoroton: My Lords, I am saying that Amendments Nos. 183 to 189 add the chief officer of police for the area where the defendant resides to those who can apply for parental direction under Clause 91 and makes the same amendment in relation to the chief constable in Scotland. The amendments bring the police officers who can apply for a parental direction—the age aspect—into line with those who can apply for a notification order and so on.

9 Jun 2003 : Column 93

7.45 p.m.

Lord Lucas: My Lords, I thought that the noble and learned Lord said that, but I cannot square that with the amendment. The amendment takes out the words "is under 18" in line 12 on page 46. Amendment No. 183 states:


    "leave out from 'police' to end of line 13".

Line 12, containing the words "is under 18", goes. I do not see how that action relates to what the Minister has said in describing the amendments.

Lord Falconer of Thoroton: My Lords, I can confirm the situation in writing. We are talking about a parental direction where there is an age limit and it is extending the numbers of chief police officers who make the applications. That is what Amendment No. 185 achieves.

Lord Lucas: My Lords, he can seek that direction for an offender who is 95. Why take out the age limit? I will be happy for the noble and learned Lord to write to me.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 184 to 189:


    Page 46, line 16, leave out first "the" and insert "a relevant".


    Page 46, line 16, at end insert "—


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