Police, Public Order and Criminal Justice (Scotland) Bill
We now turn to item 2. I welcome Hugh Henry, the Deputy Minister for Justice, and Ian Fleming from the Scottish Executive Justice Department. The minister will brief the committee on the Executive's proposed amendments to the Police, Public Order and Criminal Justice (Scotland) Bill, in relation to the control of sex offenders. The amendments have yet to be formally lodged.
Members should have copies of the draft amendments and the minister's letter of 3 March in response to the questions that were raised at our meeting of 21 February. I believe that the letter was circulated on Friday. Members should also have from the Scottish Parliament information centre a revised briefing paper on the sex offenders notification scheme.
I invite the minister to speak to the draft amendments. After he has done so, members will be able to ask questions. I thank him for coming along this afternoon. It is very helpful to committee members to receive such information in advance so that we can understand ministers' thinking.
As members know, following the murder of eight-year-old Mark Cummings by registered sex offender Stuart Leggate, Cathy Jamieson announced on 6 December 2004 that Professor George Irving would carry out an independent review of the operation of Scotland's sex offender registration system.
Professor Irving made 36 recommendations, which addressed various parts of the criminal justice system. Cathy Jamieson wrote to the convener on 24 October last year to set out how we would implement some of the recommendations through the Police, Public Order and Criminal Justice (Scotland) Bill. We plan to extend the range of information that convicted sex offenders are required to provide beyond the current requirements of name, date of birth, address and national insurance number.
First, we are minded to amend the Sexual Offences Act 2003 to require offenders to furnish the police with details of their passports.
Secondly, we are minded to amend the 2003 act to introduce a regulation-making power that will require a registered sex offender to notify further information to the police. That power will in the first instance be used to prescribe details of the financial affairs of the offender. I will say a bit more about that later.
Thirdly, we are minded to amend the Criminal Procedure (Scotland) Act 1995 to allow the police to take samples of DNA from registered sex offenders, if DNA has not already been taken at the time of charge or conviction.
Fourthly, we are minded to amend the 2003 act to enable the police to take a DNA sample from a registered sex offender when the offender attends a police station to notify. That will be done in order to identify the person.
Fifthly, we are minded to amend the 2003 act to give police the power to enter and search the accommodation of a registered sex offender in order to assess the risk of reoffending that the offender poses.
Sixthly, we are minded to amend the 2003 act to introduce in section 96 a new subsection that will expressly allow for regulations to specify the type of personal information that prisons and hospitals can pass on to the police when an individual is about to be released. The information will include details of the address at which the offender intends to stay. Respondents to a recent consultation highlighted the usefulness of such information to the police and to people who become responsible for offenders when they are transferred.
Professor Irving believes that the effectiveness of the sex offenders register would be improved if the police were able to see details of registered sex offenders' financial affairs. Given the complex and detailed way in which financial affairs are often managed today, we consider that it would be appropriate to set out such provision in regulations, as opposed to primary legislation. Accordingly, the provision will be dealt with by the regulation-making power that I mentioned earlier, which will enable Scottish ministers to extend the range of information that a sex offender is required to provide to the police as part of the notification regime. That will give us the flexibility to prescribe more detailed types of information about sex offenders and their personal affairs, which will be useful in enhancing the effectiveness of the register. We plan to draft a set of regulations to prescribe the additional financial information that we want sex offenders to provide to the police—for example, bank account and credit card details.
There are no plans at present to make additions to the notification requirements beyond the provisions of the 2003 act and Professor Irving's recommendation that passport details, DNA samples and, in the fullness of time, bank details be included.
I point out that, if it were fully implemented, recommendation 1 would require relevant offenders to notify information, whose disclosure would be difficult to justify. Almost all the other suggestions that Professor Irving made relate to information that will change or be difficult to define, such as leisure activities and main associates. In addition, it is not the case that offenders would simply have to notify the information—they would also have to notify a change within three days of that change taking place. The recommendation would also require the notification of personal information relating to other individuals, which would be a significant departure from what is currently required under the 2003 act and would be likely to raise European convention on human rights issues. However, it may in the future be helpful for the police to have other personal information that sex offenders hold, in the context of the general crime prevention purposes of the scheme. In that case, we could return to the issue by means of a regulation-making power.
I have provided the committee with further clarification of a number of points on the sex offender measures that emerged from last week's evidence taking. I refer in particular to the taking of DNA from people who are on the sex offenders register but do not have convictions. I hope that that clarification was helpful, but I am happy to respond to questions from the committee.
Thank you. My first question relates to the reduction in the time within which people must register. Did you consider at any time whether advance notice should, where possible, be given to relevant authorities?
Secondly, am I right that you would have no objection to putting regulations before the committee before they were debated in the chamber?
The regulations will be subject to the affirmative procedure, so the committee will have an opportunity to consider them. Ian Fleming will answer the first question.
Ian Fleming (Scottish Executive Justice Department):
Did your question relate to the transfer of sex offenders from prison and hospital?
The question was about any advance notice system. There may be advance notice if someone is transferred from hospital, but it may not be given if someone simply changes address.
The regulations that we will put in place will require that information be made available to the police as soon as it is certain that a person is moving or transferring. Provisions in the regulations will allow that to happen at least 14 days before a change takes place.
Thank you for that clarification.
You talked about retention of DNA samples from registered sex offenders. Will the Executive's proposed amendments mean that the DNA of people who are subject to risk of sexual harm orders—a civil measure that does not involve conviction—will be retained? If not, should not consideration be given to that?
The people to whom Bill Butler refers are not covered by the amendments as they are currently drafted. He has raised an interesting issue.
I presume that the people in question will have been considered to pose a sexual risk, although they are not on the sex offenders register. The proposals will cover people who are on the sex offenders register—we focused purely on the sex offenders register and on people who had convictions. There will be a group of people about whom there is concern and action might be taken because of a perceived potential risk of their sexually offending. I will need to go away and think about that. Bill Butler is absolutely right that such people would not be covered, so we might need to reflect on that.
It is certainly the case that someone who breaches a risk of sexual harm order would go on to the sex offenders register; therefore, a DNA sample could be taken from that person. It is not about waiting for people to breach an order and then taking action; if someone has a risk of sexual harm order imposed on them, there is clearly concern about them in the first place. I will have to reflect on that issue now that Bill Butler has raised it.
I am grateful that the minister will reflect on the matter. I know that there will be ECHR issues to consider. As the minister indicated, the main consideration—or certainly a central consideration—is how to prevent a breach of the order.
I turn to the power to enter and search, which is an extension of Professor Irving's recommendation that there should be a power merely to enter premises. What is the rationale behind the Executive lodging an amendment that seeks to provide a power to enter and search? Are you convinced that there are enough checks and balances to ensure that civil liberties are considered?
Bill Butler is right to say that there could be ECHR issues. We will have to check that, because everything we do needs to be ECHR compliant.
We believe that it is necessary to grant the power to enter and search because we believe that it is necessary to assess the risk of a person's posing a threat to children, to women or to anyone else who is vulnerable to being sexually exploited, attacked or abused. If we were to identify a person as being a potential risk and thereafter grant the power to enter their premises, it would cause unnecessary complications if we did not have the power to search those premises at the same time. It might be that, having entered premises, it is decided that something should be checked as a result of a reference that is made or because there are children's toys or something else that could be an inducement or attraction to children that is inappropriate for the adult to have. It would cause unnecessary complications if we were worried that a person was grooming, but nothing could be done. It might be suspected that there is equipment or toys in another room that could be used to attract or induce children or there could be magazines or other things in the house.
If there is a need to assess the risk, what would be the purpose of the police entering the house, not fully believing what was said to them there and then having to go away and apply for a separate warrant to conduct a search? I agree that the measures could have civil liberty implications, but much of our work to tackle sex offending has civil liberty implications. We have always had to balance the rights of individuals with the need to protect the public, especially children, from the activities of some individuals. We believe that if the right to enter a house has been conferred because of worry about somebody and we want to assess the risk from that person, it makes sense to have the further power to search at that point.
We should remember that the power will not be used on a whim or by the police acting on a phone call from the social work department; instead, the police will have to persuade the court to grant the power. The court will test the issue and will have to be satisfied that there is a need to search. The police will have to show that, before going to court, they had attempted to carry out a risk assessment. In other words, the police will have to satisfy the court that the power is not just more convenient for them because they cannot be bothered doing the work any other way; they will have to show that they attempted to carry out a proper risk assessment, but that that was not possible and so the extra step is needed.
A further safeguard is that it will be possible to exercise the warrant only at a reasonable hour. The aim is not to encourage potential harassment—the police will not turn up in the middle of the night and drag a person out of bed simply because they feel that the person should be kept on their toes or for whatever other reason might spring to mind. A series of checks and balances will be built into the process and the court must be satisfied that the power is appropriate.
We are close to getting to specifics. No doubt when we consider the proposed amendments at stage 2, we will have the opportunity to consider the detail. Under proposed new section 96A(2)(d) of the 2003 act, if a warrant is to be granted, a police officer will have to have sought access to the premises to search and examine them on more than one occasion. Currently, unless there are specific grounds for a search warrant to be applied, it is illegal for the police to do that. It seems rather bizarre to say that a warrant can be issued only if the police have already tried to do something that they do not have a right to do without a warrant.
We will consider the details and have another discussion when we finalise the amendments. However, I am satisfied that the authority that will be granted is proportionate and that it involves checks and balances. Jeremy Purvis has raised an issue that warrants further consideration. We will think about the issue before we come back with the amendments.
I am grateful for that. I will make one more point. Proposed new section 96A(2)(a)(ii) of the 2003 act states that the police will have to show that they have
"reasonable grounds for believing that a relevant offender resides there, or"—
obviously in circumstances in which the address is not the offender's home address—
"may regularly be found there".
That will give considerable scope for search warrants to be granted for someone else's property, on the ground that the police seek to assess
"the risks posed by the offender."
However, the existing ground on which a warrant is granted to search someone else's home is that an offence is likely to be committed.
Two separate issues are involved. We are trying to address the potential risks that can be identified in relation to sex offenders—people who have a track record of sex offending. The point that Jeremy Purvis raises about the police having the right of entry to a person's home to check up on someone who is residing there—as a lodger, sharing the accommodation or whatever—is valid. Clearly, the police would need to ensure that they did not identify to the person whose home they were entering that the other person is a sex offender.
Discretion and a strong element of consideration will certainly need to be shown by the police. The person who is being investigated or spoken to also has the right to know that, in conducting their inquiries, the police will not leave that individual open to the risk of, for example, being made homeless or attacked. The other person may be unaware of their previous record or might feel strongly about sex offenders. There are checks and balances in the system that the police also need to consider in terms of how they behave and operate. The police need to employ the highest standards of professionalism in their operations.
There is also a clear obligation on the sex offender to comply and co-operate, which might obviate some of the difficulties that may be involved in the point that Jeremy Purvis raised. Again, I return to the point that I made earlier about the need for the situation to be put in context; we are not talking about action that will be taken on a whim. If the information is available to the police—either it has been obtained or given—there will be no need for the police to go through that process. The procedure would happen only when the police were worried about a potential risk that needs to be addressed.
Given some of the cases that have happened to date—indeed, given the case that prompted Professor Irving's investigation—there is a need for us to consider what more we can do to provide the safeguards that people want. I am thinking in particular of the safeguards that parents want for their children and the safeguards that we all want for anyone who is vulnerable to sexual attack.
I will have to re-read Professor Irving's report. I may have misread it, but my understanding was that the police power of entry forms part of the monitoring process and that it will allow the police to check against the sex offenders register whether the offender is abiding by the criteria that have been set down.
What the minister has said puts a different slant on the power with regard to the risk assessment process. If a person on the register who is classified as being a low risk—which takes in a fair number of people—and is abiding, either regularly or occasionally, in someone else's property or someone else's home, surely that person will not necessarily know that the person on the register is a sex offender—
That is correct.
—nor should they necessarily know that, as long as the monitoring is carried out appropriately.
However if, through a process of reassessing everyone on the register, the police use proposed new section 96A(3) of the 2003 act, they will be able to search someone's property, although that person may not know that the person who is living there is a sex offender. The power is a dubious one. If the police have reasons to believe that the person whom they are investigating is avoiding them or not fulfilling the criteria, why cannot they use a normal search warrant? Surely that would be sufficient and appropriate? The new power will mean that the police will have to go to a sheriff and say that they have cause to believe that a crime has been committed.
Jeremy Purvis is confusing two separate issues, although he was right to explain the context. If a person has been assessed as posing a low level of risk, there will be no need for the power to be used—we are not talking about using the power to reassess everybody. However, the power would kick in if there was a need to reassess someone through the enabling of monitoring that had not previously been done sufficiently.
Jeremy Purvis made a point that I made. There could be concerns about a person's not knowing that a person who resides with them is a sex offender. Of course, at the moment, the police have powers to enter and search premises where they believe an offence is being, or is likely to be, committed. We will not use the power as part of the process of investigating a crime or a potential crime; that is something completely different. We will use the power as part of the process of monitoring sex offenders and assessing the risk that some sex offenders might pose.
There will be no need for the power to be used against every sex offender, but there may be some sex offenders who will not co-operate or provide the information that is required. If there was a suspicion that further information might be available and helpful, use of the power would have to be considered. However, the case for that would need to be made to the courts; the power will not be the first resort. The police will need to show the court what else they have done in order to justify the court's taking this extra or exceptional step.
I believe that the new power would be tightly drawn. It would be restricted to enabling the police to enter and search premises for the purpose of carrying out adequate risk assessments of individual offenders. I repeat what I said earlier: the power would be made available only when other means were shown to be insufficient. If everything else has been tried and we still need to do something extra to prevent a person from reoffending or returning to old ways, the power will give some extra reassurance.
I wonder whether, for clarity, you could consider the Official Report of this meeting and pick up on some of the points that have been made about processes, guidance and so on in the application of the power, should it become law. It might be helpful for us to have your comments in hand when we come to debate your final amendments—I appreciate that these are draft amendments.
I have two points to make, the first of which is on the area that we have just been discussing. I ask for clarification on section 96A(2)(d). When reading draft amendment 4, I assumed that the expectation would be that the police would get voluntary access—that people would co-operate. I think that you are saying that the power would be used only when a risk had been identified and there was a lack of co-operation—which, in a sense, would reinforce the possibility of risk.
Yes.
Can you clarify the meaning of the last line of paragraph (d), which refers to the circumstance that a constable
"has been unable to obtain entry for that purpose"?
Do you mean that there has just been no answer, or do you mean that the person was in and answered the door but refused entry? If a risk has been identified and the police are unable to obtain access—particularly if access has been refused by the offender—why must that happen on more than one occasion before the power can be used? Surely, giving the offender that warning gives them the opportunity to remove from the premises whatever evidence the police think may be there.
Yes. Potentially, that would be a worry. However, we should remember that searching for inappropriate materials would be part of the process of monitoring that individual and assessing the risk that they posed, but the police might well want to sit down and talk to the individual about a range of things.
A court would not grant a warrant if the police were unable to satisfy it that a number of attempts had been made to gain access, perhaps by trying to contact the person in question, by turning up at their door, by phoning them or by writing letters. We are trying to be proportionate. We are not trying to catch people out as such; instead, this is part of a process of encouraging people to co-operate with the relevant authorities to allow us to build up a profile of a sex offender and enough information on them to assure the courts, social work and the wider public that we are adequately assessing how that person might behave. We do not want to use this as a pretext for carrying out dawn raids on every sex offender, or to make them feel that they do not know when a police officer might knock on their door.
Most people will co-operate and provide the required information, and the proper risk assessment will be carried out. However, if there is a concern that the risk assessment of any individual is incomplete and that they are not being adequately monitored because we do not know the risk that they pose to the wider public, we need to take those extra steps and make it known to the individual in question that we expect them to co-operate. If they then refuse to co-operate, we should be able to go back to court and make it clear that, although we tried to get the person to co-operate and give us adequate access, they still refused. At that point, we should be able to secure a warrant to get that access. The police should be responsible for demonstrating that to the courts to ensure that the provision is not used trivially as part of everyday operations.
That clarifies the point. The sheriff would in effect be the ultimate judge of whether a reasonable approach had been taken.
That is correct.
I want to follow up some issues that Bill Butler raised. I see that, according to one of the draft amendments, sex offenders will have to provide details about their passports. You have also said that regulations will set out provisions on the notification of financial details. Again, we will have to wait and see what the regulations say, but I am sure that most, if not all, members support such a move. However, when Executive officials gave evidence to the committee a few weeks ago, there seemed to be some confusion about DNA samples. I did not attend last week's meeting, so I apologise if the matter was cleared up then. Is it the Executive's position that DNA samples will be retained only if people have been found guilty of an offence? In that respect, I accept Bill Butler's point about those who pose a risk, which might be a separate issue for discussion, but is the intention to go further than that?
I hope that the letter to the convener dated 3 March has clarified some of the DNA issues. However, as far as the proposed new section is concerned, we are talking not only about people who are convicted of a crime but about those who are on the sex offenders register. People in the latter group might not have been convicted, for a number of reasons, including technical reasons such as insanity.
I accept that. I have no argument with retaining DNA samples from those who have been convicted and those who are on the sex offenders register. However, is the intention to apply these provisions to people beyond those who are on the register?
The draft amendment before the committee goes no further in that respect. However, Bill Butler has identified a group of people who are not covered by its provisions and I will need to reflect on that matter.
That is fine.
As there are no further questions, I thank the minister and Mr Fleming for their evidence on this item.