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( ) who resides in his police area, or who the chief officer believes is in or is intending to come to his police area, and
( ) who the chief officer believes is under 18." Page 46, line 17, leave out from "constable" to end of line 19.



    Page 46, line 21, leave out "the" and insert "a relevant"


    Page 46, line 22, at end insert "—


( ) who resides in that area, or who the chief constable believes is in or is intending to come to that area, and
( ) who the chief constable believes is under 16."

On Question, amendments agreed to.

Clause 92 [Parental directions: variations, renewals and discharges]:

Lord Falconer of Thoroton moved Amendment No. 190:


    Page 46, line 33, after "Scotland" insert "—


( ) the chief constable of the police force within the area of which the young offender resides;
( )"

On Question, amendment agreed to.

Clause 98 [Sections 96 and 97: relevant offences]:

Lord Falconer of Thoroton moved Amendment No. 190A:


    Page 50, line 3, after "3" insert "(other than at paragraph 52C)".

The noble and learned Lord said: My Lords, this group of government amendments represents a commitment given by Scottish Ministers to implement the recommendations made by the Cosgrove committee.

9 Jun 2003 : Column 94

Amendment No. 190A is part of a package of interrelated amendments. It will implement the recommendation in the report which sought to broaden the scope of offences to which notification requirements apply. The amendment relates to what is to be considered a relevant offence when a court is considering the making of a notification order in terms of Clauses 96 and 97. Where a court is so doing, the court must be satisfied that the offence committed abroad constituted an offence under the law in force in the country concerned, and that it would have constituted an offence listed in Schedule 3 if it had been done in any part of the United Kingdom. In doing so for Scotland, the court is to disregard paragraph 52C of Schedule 3. As those facts will rarely if ever be so available, Scottish Ministers consider that this is a step too far, and that courts will not be able to form a proper view in this regard on the facts available to them.

Amendments Nos. 194, 195, and 196 will also fulfil the panels' recommendations, by removing the age and sentencing thresholds in Schedule 3 for three specific offences; namely, abduction of a woman or a girl with intent to rape, assault with intent to rape or ravish and indecent assault. Presently the notification requirements are limited to circumstances where any other person involved in the offence—for example, the victim—is under 18 or where the offender was sentenced to at least 30 months' imprisonment. This amendment will broaden the scope of these sexual offences to which the notification requirements apply in Scotland by requiring notification regardless of the age of the victim or the length of sentence imposed.

Amendments Nos. 198B and 201A fulfil a further Cosgrove recommendation—recommendation 42—which recommended that Sections 106 and 107 of the Mental Health (Scotland) Act 1984 be included in Schedule 1 to the Sex Offenders Act 1997. The 1984 Act will be repealed by the Mental Health (Care and Treatment) (Scotland) Act 2003, which replaces these provisions with two new offences concerning sexual acts involving a mentally disordered person who has not consented, and sexual relationships between persons providing care services and mentally disordered persons. These amendments add both provisions to the notification requirements of the Sexual Offences Bill, meaning that persons convicted of either offence will be liable to be included on the register of sex offenders.

Amendment No. 201A also adds a new paragraph to the list of automatic trigger offences in Schedule 3 allowing a court in Scotland, where an offender is convicted of any offence which does not carry automatic registration but where the judge considers that the offence discloses a significant sexual aspect in the offender's behaviour in committing the offence, to order registration, subject to a right of appeal against the order by the offender. The provision will sit with the list of offences in Scotland that attract automatic registration in Schedule 3 and will allow judges to determine from the facts of the case whether there was a significant sexual aspect to the case where it is not apparent from the charge.

9 Jun 2003 : Column 95

I am not sure whether it is appropriate for me now to deal with the other amendments. I may not get another chance to speak on them. I am resisting them. I beg to move.

Lord Astor of Hever: My Lords, I shall speak to Amendments Nos. 194 to 202. Amendments Nos. 194 to 201 deal with offences in Scotland that would trigger the requirement to notify on the sex offenders register. Amendment No. 202 would insert a detailed list of offences for Scotland into Schedule 4, which allows for sexual offences prevention orders to be made. Those points have been aired in Committee.

I was heartened that the Minister added his name to Amendments Nos. 194 to 196. In Committee, the noble Lord, Lord Bassam, said that he would look at our amendments. It appears that the Government have accepted some—Amendments Nos. 194 to 196—but not the rest. That seems a curious approach since the same principle underlies Amendments Nos. 194 to 196 as Amendments Nos. 197, 199 and 200. All those amendments probe the need to have regard to factors other than the conviction itself—for example, the age of the offender and the victim—before the notification requirement will apply.

The Government have supported that approach in our first three amendments on the offences of abduction of a woman or girl with intent to rape, assault with intent to rape and indecent assault. But they have not supported it with regard to the three further offences that Amendments Nos. 197, 199 and 200 address; namely, shameless indecency, incest as set out in Section 1 of the Criminal Law (Consolidation)(Scotland) Act 1995 and intercourse with a stepchild under Section 2 of the same Act. Can the Minister explain on what basis the Government have adopted some but not all the amendments on that point? Incest, shameless indecency and intercourse with a stepchild are very serious offences, yet notification in each case is triggered only if the victim was under 18 at the time of the offence.

Amendments Nos. 198 and 201 focus on a slightly different point. They would amend the drafting of paragraphs 40 and 51 of Schedule 3 so that sub-paragraphs (a) and (b) of each paragraph are read cumulatively, not alternatively. As drafted, if the offender is under 20, irrespective of the age of the victim, notification will not be triggered. We want both sub-paragraphs (a) and (b) to apply so that an offender under 20 is exempt only if the other party was a willing participant aged over 18. Essentially, our amendments limit those who can be exempt under paragraphs 40 and 51. The Government did not, we feel, give a satisfactory response to those amendments in Committee.

Amendment No. 202 would amend Schedule 4 by including a list of relevant Scottish offences in the Bill. The offences in Schedule 4 are relevant to the powers conferred on the court to make sexual offences

9 Jun 2003 : Column 96

prevention orders. At present, as drafted, the Bill contains merely one line to cover Scottish offences that infer personal violence. We tabled the same amendment in Committee, when the Minister replied that, because most of the offences involving personal violence in Scotland were common law offences, it was preferable not to include on the face of the Bill a definitive list of Scottish offences. I do not understand why England, Wales and Northern Ireland have a list of relevant offences for triggering sexual offences prevention orders but Scotland has only the vague, one-line description of,


    "an offence inferring personal violence".

That seems to lack clarity and definition.

The Scottish Law Society has told me that,


    "the Scottish courts have construed the phrase 'an offence inferring personal violence' by reference to the circumstances of the offence and not the name given to the offence. In one case (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 the phrase 'an offence inferring personal violence' in Scotland. This could mean that there would be a discrepancy in the offences covered by Schedule 3 in England, Wales, Northern Ireland and those in Scotland".

In the interests of clarity and consistency, we think that that is not satisfactory. Will the Government think again about putting a list on the face of the Bill?

Lord Falconer of Thoroton: My Lords, on Amendment No. 202, with which the noble Lord dealt last, as I indicated in Committee, most offences involving personal violence in Scotland are common law offences. If you set out a definitive list, you might miss something, because there is the whole of the common law to deal with. To provide the appropriate protection, therefore, it is best to take our approach. However, Clause 214—I am pausing, as there is no such clause. A particular clause—I will identify it when a note arrives in the box—allows the Secretary of State to amend the description of offences in Schedule 4 if necessary. That provides the better course.

The noble Lord, Lord Astor of Hever, said that some of his party's amendments appeared to be supported by Cosgrove yet the Government were not implementing them. He asked what our reasons are for choosing some but not others. The position on that is essentially a matter for Scottish Ministers, but I need to consider each amendment. I shall respond to the matter in correspondence, and then the noble Lord can consider whether it is worth raising it at Third Reading.

I shall try to deal with the matter before the noble Lord tables amendments for Third Reading. I have wonderful news: the clause that I meant to refer to earlier is Clause 124. I apologise for referring to it as Clause 214. I beg to move.

On Question, amendment agreed to.

9 Jun 2003 : Column 97

Clause 102 [Sections 96 to 99: Scotland]:


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