Protection of Children and Prevention of Sexual Offences (Scotland) Bill: Stage 2
Section 1—Meeting a child following certain preliminary contact
Item 3 is our first day of stage 2 consideration of the bill. Amendment 1, in my name, is grouped with amendments 12, 13, 14, 3, 15, 16, 18, 4, 19, 20, 5, 21, 22, 6, 23, 26, 8, 27, 9, 28, 29, 10, 30, 31, and 32. There are several pre-emptions. Amendment 14 pre-empts amendment 3; amendment 18 pre-empts amendment 4; amendment 20 pre-empts amendment 5; amendment 22 pre-empts amendment 6; amendment 26 pre-empts amendment 8; amendment 27 pre-empts amendment 9; and amendment 29 pre-empts amendment 10. I think that everyone knows what a pre-emption is, so I need not go through the procedure.
Amendment 1 relates to the age of the offender, which, under the bill, is 18 or over. I will speak to the committee position and say why I believe that it is necessary to remove that age limit. I am sure that other members will want to speak in the debate.
I understand why the Executive put the minimum age of the offender at 18 in trying to protect an age group where people tend to be vulnerable. Some people thought that we should bring the age down to 16, but there is a variety of opinions as to what we should do. For example, the national hi-tech crime unit told the committee that evidence shows that those who are likely to display unhealthy behaviour towards children would be doing so by the age of 18.
Barnardo's Scotland, a children's organisation, was also keen that we lowered the minimum age of the offender to 16. However, the Scottish Children's Reporter Administration pointed out that people of that age would be dealt with through the children's hearings system rather than through the criminal justice system.
We should maintain the existing arrangements relating to the age of the offender, so that those cases that would normally be dealt with through the children's hearings system would continue to be dealt with in that way, whereas people who had reached the appropriate age—those over the age of 16 where there is no supervision order—would be dealt with by the criminal justice system, albeit that the court would continue to have some discretion about whether to send the case back to the children's hearings system. In our report, the committee took the view that it would be best to remove the words "aged 18 or over" from the bill and mention no age limit, so that the normal rules could apply.
Several of the amendments in the group seek to do the same thing as amendment 1. I understand from our earlier discussions that the Executive is trying to do the same thing by replacing the words "adult" and "child" with the letters "A" and "B". Notwithstanding Margaret Mitchell's earlier comments, which are worthy of consideration, I believe that we should remove the words "aged 18 or over" from the bill—on balance, I think that that is the best way forward. However, I am open-minded about how to achieve our aim, so I will listen to what the Executive has to say.
I move amendment 1.
We have some sympathy with the committee's proposition and we agree that we require to consider removing the age qualification for the accused in connection with the grooming offence. Our original position was that creating the offence was about strengthening the law to deal with the perceived problem of adults seeking to win the confidence of children and to take advantage of them—the process that we describe as grooming.
However, we have taken note of the evidence that was presented to the committee at stage 1, when a number of organisations said that teenagers can and do manipulate younger children and that the risk of damage to those younger children is considerable. We have reflected on some of the concerns expressed by the committee and we agree that the grooming offence should catch such behaviour. We are confident that prosecutorial discretion will mean that normal teenage romantic pursuits will not fall foul of the legislation and that the offence will be used only where there is evidence of predatory behaviour and the intention of committing a sexual assault.
Where our amendment differs from yours, convener, is that we think that the use of letters—I will not go into whether they should be "A" and "B" or other letters—is helpful in differentiating and clarifying in the bill the position of the accused and the intended victim, particularly as there could be situations in which the accused is a child. There is no difference in policy or effect between our amendments, so I hope that you will agree that what we are doing is helping to remove any potential weakness or anomaly.
Removing the reference to "child" also allows us to cater for the situation where attempts to groom a child have come to the attention of the police. We understand that it is normal practice in those situations for an undercover police officer to continue communications with the suspect, in order to ensure that the child is not exposed to any further potentially abusive communications. The police officer would assume the role of the child, or a friend of the child, having first been authorised to do so. The problem is that that practical step could subsequently mean that the accused could argue in court that he was not in fact grooming a child but was communicating with an adult.
We therefore propose that the bill should be amended so that the requirement of the offence is that the accused should have communicated either with someone who is under 16 or with a constable. That has to be read alongside section 1(1)(c), which requires the Crown to establish that the accused person did not reasonably believe the other party to be 16 or over.
We are conscious of the dangers of legislation that might be seen to encourage entrapment, but we are confident that the highly specialised police officers who undertake such work are properly trained in what is permissible in the context of that undercover work. Furthermore, the courts will continue to be responsible for determining what evidence is admissible and what is not. We think that the balance is clearly in favour of recognising the realities of policing what is a complex area. We believe that our amendments are a necessary addition to the bill and reflect the concerns of many organisations that gave evidence. I think that they also reflect the concerns expressed by the committee and the legitimate demand that you have made, convener, on behalf of the committee.
I welcome the amendments in the names of Pauline McNeill and Cathy Jamieson. I shall listen to what is said and decide which set to support. I am not unduly concerned at stage 2 about the use of the alphabetic letters "A" and "B", because I am sure that, if we accept the minister's amendments but want to substitute other letters, we can do so at stage 3.
The introduction of the words "a constable" in amendment 21 is welcome. However, I would like the minister to use his summing-up remarks to address the issue of authorisation. I agree with him that any such investigation should be properly authorised, but the bill does not make any reference to the circumstances in which, or the source from which, such authority might be derived. It would be useful to put on record some further explanation in that regard, so that the provision does not become—as I am sure the minister would not wish it to—simply a licence for any constable to take action. Such work requires the training, skills and supervision that can be found, for example, in the national hi-tech crime unit.
I support the change in the definition of the age of the offender. In evidence, Barnardo's Scotland pointed out the importance of recognising inappropriate behaviour as early as possible in order to effect change. If we are to effect change, it is important that we do not simply criminalise behaviour, but ensure that appropriate treatments are available for young people who display such behaviour. That is the main reason for my support for the amendments. Behaviour can be changed, but it is essential to do that as early as possible, so appropriate treatments must be available.
The minister said at stage 1 that he would consider the issue. I welcome the amendments, which improve the bill and make it stronger.
At stage 1, the committee took the general view that it was incorrect to require the perpetrator to be over 18 and that it would be a worthwhile change to remove that measure and accept that children can be offended against by children, particularly those who have predatory behaviour as one of their traits. On the use of the terms "A" and "B" compared to the convener's recommendation, I would not say that the issue is neither here nor there, because there are differences.
Amendment 21 is extremely loose. I appreciate the idea behind it and I have no problems in this instance with legislation allowing the potential for entrapment, because the medium with which we are dealing is difficult to police and, at present, the predators whom we are seeking to stop have the advantage in that medium. However, the problem is that if the bill simply mentions "a constable", a police officer who engages in predatory behaviour would be exempt from the measures. It must be absolutely crystal clear in the bill, even if that means further amendments at stage 3, that the police officer must be authorised to carry out the task, otherwise the bill might have the unintentional consequence that a police officer who engages in such predatory behaviour would be outwith the scope of the bill. I want it to be absolutely crystal clear that the officer must be authorised to carry out such work.
Before I wind up, the minister is welcome to comment on any of those points.
In one sense, it is not helpful to have the stark juxtaposition of the Executive's amendments and the convener's amendments. We believe that our amendments meet the aspirations that the convener has articulated, but we have sought to build in further safeguards and to build on the existing measures. I have explained why we believe that it is right not to include the reference that the convener seeks to put in.
Stewart Stevenson and Bruce McFee raised the issue of authorisation, but it is clear that police constables would have to apply for authorisation to become a covert human intelligence source under the provisions of the Regulation of Investigatory Powers (Scotland) Act 2000. Furthermore, Bruce McFee's interpretation of amendment 21 is not correct. The word "constable" has a clear meaning in Scots law; it means a police constable under the Police (Scotland) Act 1967. We do not need to say anything further in the bill on the matter.
I disagree with Bruce McFee's suggestion that the police constable could be doing the grooming. In effect, it is the police constable who would be being groomed, as he or she would have substituted themselves for the child. The bill is perfectly clear and concise on the matter. The provision gives a degree of added protection; it allows perpetrators to be caught without the child having to be exposed to further danger.
Let me wind up. I endorse what other committee members have said. We are pleased that the Executive has responded to the views that we expressed in our stage 1 report and, given its response, I will seek the committee's agreement to withdraw amendment 1.
I am sure that the minister will accept in good faith that the committee did not want to get into a ridiculous argument about whether the letters "A" and "B" or "E" and "F" should be used. That said, it is worth considering how we can ensure that everyone is absolutely clear about who is subject to the provision. With that comment, I seek the committee's agreement to withdraw amendment 1.
Amendment 1, by agreement, withdrawn.
Amendments 12 and 13 moved—[Hugh Henry]—and agreed to.
Amendment 2, in my name, is grouped with amendments 7 and 24.
Again, I am speaking to the committee's position at stage 1. Amendment 2 relates to the number of communications that are required under the bill to demonstrate that a crime is complete. Under section 1(1)(a), communication on "two earlier occasions" is required. I have sympathy with the Executive's original position—I believe that it is important that, in attempting to prosecute criminal behaviour, we do not catch people in innocent situations. However, the bill would not allow us to prosecute someone where only one communication had taken place yet there was a clear intention to groom a child with the purpose of meeting them. That is the deciding factor for me. On balance, I take the view that we should reduce the number of communications to one.
I move amendment 2.
I agree with the convener. Concern was expressed that someone can build up the confidence of a child even in one communication. Unless we press amendment 2, we will be unable to move on the issue. It is important that the bill refers to one and not two communications.
I appreciate that the Executive is trying not to catch in the bill communications that are made accidentally or as a result of a misunderstanding. However, the bill includes enough protection to ensure that that will not happen. As the minister said earlier, people will act sensibly in their interpretation of the legislation. Amendment 2 is a sensible amendment to the bill.
I, too, agree that amendment 2 is a sensible amendment. The evidence that we took from Rachel O'Connell in particular was conclusive on the matter. She showed—as did the practical demonstration that the committee witnessed—how quickly a situation can develop in an internet chat room. In some instances, we are talking about a matter of minutes.
We wrestled with the problem of whether, under the bill as drafted, one prolonged communication in a chat room would count as being two communications if the person signed off mid-way through the conversation and logged back on again. I think that courts and the Procurator Fiscal Service would have the common sense to be able to consider cases that might be borderline—cases in which the content is not particularly explicit. However, the stuff that we saw was explicit in the extreme and we should not say that there has to be a second deluge of explicit material before judging that the offence has been committed. Therefore, I agree with the convener's amendment.
In my member's bill, I suggested that there should have to be two communications, as the Scottish Executive has done. However, having listened to the evidence—particularly that of Rachel O'Connell, who made us realise that an internet communication could go pretty far down the line and that we would want to curb it quickly—I and, I think, the rest of the committee have been persuaded that the bill should require there to have been only one communication. That would make the legislation as strong and effective as possible.
As has been suggested, our original intention was to ensure that we did not catch innocent or unwitting behaviour. The requirement for two communications was included to ensure that we targeted deliberate and considered actions. However, we recognise that it is possible that a calculating sex offender might tailor their actions to ensure that there was only one communication. The convener and others have referred to the evidence that the committee has heard about the possibility of the sex offender extending the first communication until they had persuaded the child to meet them. It is right that we properly consider the significance of that.
We also note that the offence would still require other deliberate steps to have been taken by the accused that would clearly indicate criminal intent. Having said that and having listened to the arguments, we are content with the changes that the convener is suggesting and think that they will strengthen the bill.
We welcome the Executive's position.
Amendment 2 agreed to.
Amendments 14 to 16 moved—[Hugh Henry]—and agreed to.
Amendment 3 is therefore pre-empted.
Amendment 17, in the name of Mary Mulligan, is grouped with amendments 25 and 33.
Section 1 of the bill refers to the adult intentionally meeting the child or travelling to meet the child, but it does not mention the issue of communication. Amendment 17 would ensure that all aspects were covered. Initially, it might have seemed unlikely that people would either travel worldwide or communicate worldwide for the purposes that we are discussing. However, as we heard more and more evidence, we realised that that was possible. That is why I hope that the committee will accept the amendment.
I move amendment 17.
Mary Mulligan neglected to mention what, for me, was the most important part of the issue—luckily, however, amendment 17 deals with it. The glaring hole in the bill is that, although the offence is completed if the adult travels to meet the child, it is not completed if the adult gets the child to travel to meet him or facilitates some sort of travel arrangements for the child. Amendment 17 will rectify that situation, which is why it is worthy of support. If that glaring hole in the bill is not closed, paedophiles will be presented with the opportunity of escaping possible conviction simply by arranging for the child to travel to meet them. I welcome the closing of that loophole.
The Law Society of Scotland pointed out the loophole. It had not occurred to us before then that the bill should refer to the child travelling to meet the adult. Amendment 17 would close that loophole.
As members have suggested, it is clear that there is a potential loophole that could allow a sex offender to seek to evade the requirements of the grooming offence by having a child travel to meet them. If a meeting had taken place, it would not matter who had travelled, although, in cases where the police were running an undercover operation, it would be unlikely that they would allow a child to meet a potential abuser.
Mary Mulligan's amendments are helpful and would allow a prosecution to proceed where the accused had clearly arranged for the intended victim to travel to meet him without the requirement for the accused to travel or for that meeting to have taken place. It is important that the accused has to take active and deliberate steps—in this case, arranging for an intended victim to travel to a meeting at which the accused intends to commit a sexual offence. It is clear that it would not be sufficient if the child decided of their own volition to travel to meet that person. However, the situation is properly catered for in Mary Mulligan's amendments 17, 25 and 33 and we are happy to support them.
I am pleased that members recognise the loophole that my amendments attempt to close.
Amendment 17 agreed to.
Amendments 18 to 23 moved—[Hugh Henry]—and agreed to.
Amendments 4 to 6 are therefore pre-empted.
Amendments 7 and 24 moved—[Pauline McNeill]—and agreed to.
Amendment 25 moved—[Mrs Mary Mulligan]—and agreed to.
Amendments 26 to 32 moved—[Hugh Henry]—and agreed to.
Amendments 8 to 10 are therefore pre-empted.
Amendment 33 moved—[Mrs Mary Mulligan]—and agreed to.
Section 1, as amended, agreed to.
Schedule agreed to.
That ends the consideration of amendments at stage 2 for today. I thank the minister and his team for attending.