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Agenda item 3 is the Protection of Children and Prevention of Sexual Offences (Scotland) Bill. I welcome to the committee Tam Baillie, who is the assistant director of policy at Barnardo's Scotland. Good morning, and thank you for the helpful paper that you supplied, which made useful reading. We will go straight to questions. Why do you think the bill is important?
The instruments that are available to protect children from sexual harm are rather blunt. The three main provisions in the bill—the offence of grooming, the risk of sexual harm order and the sexual offences prevention order—will add to the range of measures that can be taken to ensure that youngsters are properly protected. Although we generally welcome the bill, we have reservations that I hope will come out in questioning and be taken on board in shaping the future stages.
We have questions on your issues, so do not worry about it. If anything is not covered during questions, I will ensure that it is covered at the end.
Yes. I expect that somebody will ask me about prevalence and the increase in the behaviour that the bill covers, but that is not easy to quantify. We know that there has been an explosion of sexually abusive images of youngsters on the internet, and we know that increasing numbers of people are accessing those images. For example, operation ore threw up 7,200 names within the United Kingdom.
It is helpful to have that on the record. Does Barnardo's have any experience of working directly on any such cases?
Yes. We have four services around Scotland that work with young people who exhibit sexually problematic behaviour. In fact, many of the positions that we have adopted on the bill have come directly from the experience of those services. We support the measures generally, but that support is tempered by the professional experience of working with youngsters who exhibit worrying behaviour.
You have anticipated some of the questions that we wanted to ask. Your paper refers to the need
There are several elements to the detection or discovery of the fact that a child is subject to sexual abuse. The police need to have enough intelligence to know what part of the internet or what communications to target, which requires additional resources. The policy memorandum does not refer to any additional resources being allocated to the police on the basis that they are already carrying out investigations. However, we know that the police cannot keep up with the current amount of internet traffic and that their task is like looking for a needle in a haystack. The police need good intelligence and the ability to follow up that intelligence. We also need to consider the time periods for which internet service providers hold information, which would allow the police to interrogate their systems. Compared with the amount of money that is ploughed into the licensing of third-generation mobile phone technology and the companies that hold the licences, we spend only a pittance on the detection side.
You make reference to the importance of internet service providers maintaining records for a period of time to assist police investigations. Do you think that legislation might be needed—although I do not think that the Scottish Parliament would be competent to pass it—that would require people to access the internet via internet service provider data stores that are within the legal reach of the United Kingdom?
Yes. That has already been considered, but the Westminster Parliament decided not to press a requirement on internet service providers to hold information for a minimum period. There are considerations at a national level, and it is beyond the Scottish Parliament to pass legislation on that. However, if a spin-off of the bill was the creation of pressure at national level, that would be helpful.
By its nature, grooming takes place when children are using the internet, and different parents will have different rules about the use of computers in their homes. Is Barnardo's picking up any issues with regard to parents? For example, should there be rules or charters about the use of computer technology in the home?
The Scottish Executive has published useful educational information for parents and children on the use of the internet. However, in our experience, young people are much more internet-savvy than ourselves and their parents. There is a job for us to do, as parents, in catching up with how the systems operate and in educating ourselves because, to be honest, children are outstripping us in the use of the internet.
Do you mean that many parents do not understand the full extent of what the internet is capable of and therefore cannot monitor their children?
That is one aspect. We as adults must try harder than youngsters, who have a natural affinity with new technology.
That is not what I meant. Access to the internet for children of different ages must vary widely. Some children use their computer in a room on their own without the presence of parents. Is grooming more likely if children live in households in which they have complete and unrestricted access to the internet in their bedroom?
Parents have to exercise good judgment over what their children are up to.
You said that you had some experience. I am trying to get a handle on whether having unrestricted access makes a difference. If you do not know, that is fine.
The issue is not so much unrestricted access. It is important to have sensible conversations with children and to know what they are doing with the internet or in any activity.
You are right to say that such conversations are needed, but they are probably the hardest thing that we do as parents. Unfortunately, we cannot legislate for that, but I am sure that we will return to the matter.
Two other aspects need resources, one of which is child victims. A review of child protection arrangements in Scotland is under way. We need to ensure that child protection is properly resourced. We know that the children's hearings system is overburdened by care and protection cases and we must have a reasonable balance to what that system is expected to do. It must also be properly resourced when we are aware of children who are victims of abuse or sexual abuse.
We will discuss work with perpetrators later. Your first point was about the resources that are available for the police. I will play devil's advocate for a minute. If we gave the police more money to do the work now, could we not bother with the bill? Is that the problem?
The police need intelligence on which to base police work. Additional resources to the police are not the only measure that is needed. The way in which to give the police intelligence is to have good child protection procedures, so that when children are subject to sexual abuse or may be in danger, we have the right systems, networks and support to assist youngsters and to provide some of that intelligence, so that the police know who presents a danger to our children. We have to operate on a number of fronts. Additional resources for the police only would be of no help.
Section 1, which creates the offence of meeting a child following certain preliminary contact, refers to the age of the offender. Under the bill, the minimum age of the offender would be 18, but in your submission, you recommend that it should be reduced to 16, although there are some conditions on that recommendation. Will you explain more fully why you feel that the age should be reduced from 18 to 16? What evidence do you have that 16 or 17-year-olds groom younger children?
We thought a lot about that point, as we made clear in our written submission. The main evidence that encouraged us to opt for an age of 16 was our services' experience of working with young people who are exhibiting sexually problematic behaviour. The information that we got back from our services was that they were working with young people aged 16 and 17 who were capable of using, and at times had used, the internet. On that basis, we felt that it was reasonable to advocate that the offence should apply from the age of 16.
You have raised a few issues that I will explore a little further. Would grooming by a 16 or 17-year-old of, for example, a 15-year-old necessarily be appropriate for criminal law intervention? Your submission suggests that we should aim to intervene in such behaviour rather than to criminalise the individual.
We were asked for our view on what the age threshold should be and we pitched it at 16. If it was decided that the threshold would remain at 18, that would still leave the committee and the rest of the legislature with the issue of what would happen with 16 and 17-year-olds. We are working with youngsters who would pose a threat to other young people, so that leaves us with the question of how we should deal with those youngsters. If there was a way of making referrals through the children's hearings system, which is our care and protection system, we would be satisfied with that, but we cannot just leave 16 or 17-year-olds in some kind of void. Under the bill as it is drafted, that is exactly the position that we would be in.
Do you have any indication what percentage of your case load those 16 and 17-year-olds would make up? How would you determine which cases were suitable for referral to the children's hearings system, or are you suggesting that all cases should go to that system?
There were two issues there. Could you repeat the first question?
Can you quantify the problem among 16 and 17-year-olds?
As I said, it is difficult to quantify that group. We are talking about a small number, but we deal with a number of youngsters who exhibit sexually problematic behaviour. It would not be right to extrapolate from that group of youngsters.
How would you determine which cases were appropriate for referral to the children's hearings system, or should all cases go through that system?
That raises the general issue of how sexual offences by young people are dealt with. Although we have the Lord Advocate's guidance to procurators fiscal and reporters, there is some inconsistency in deciding which offences go to the reporters and which offences go to the sheriff courts. More than likely, we will back up some of the evidence that we have given previously with a call to review the advice that comes from the Lord Advocate on that. My direct answer to your question is that all cases should go through the children's hearings system.
Last but not least, you recommend
Yes. That wording is clumsy. We had only so long to respond to the call for evidence.
Given the fact that it has probably been a while since most of us engaged in "normal adolescent ‘romantic exchanges'", can you expand on how that guidance might be constructed?
I think that I touched on it earlier. Sexually explicit communications are made frequently between youngsters, but some of those communications are about grooming behaviour, in which the youngsters are not communicating on an equal basis. I will not try to establish the wording of the guidance just now, but it would try to separate out those exchanges and would not be a catch-all rule if the age was set at 16. To be honest, even if the age was set at 18 there would be the same need to separate out the different exchanges between an 18-year-old and a 15-year-old, for example, although the difference in age would be slightly more significant in such exchanges.
If the exchanges were between a 15-year-old and a 16-year-old, it would be a grey area.
Yes. We acknowledged that in pitching the target age at 16.
I wonder whether we would introduce the potential to discredit the bill if we ended up, early on, in a quagmire of trying to differentiate between the two forms of behaviour. Are you suggesting that there has to be a position of inequality between the two parties? Is that the essential element in distinguishing between the two forms of behaviour?
I was interested to read the briefing that was produced by the Scottish Parliament information centre. It cited an example from Maine, where an age differential was set as one of the criteria that had to be met before charges could be brought. I regarded that as one of the justifications for having a bar at 18, which would automatically create a two-year gap. The example that is given in the SPICe briefing—of which I was not aware before I read about it—is of an age gap being necessary to trigger the offence.
In other words, 16 and 17-year-olds could be offenders if there was an age gap of two years or whatever?
Yes. That might be even more messy for the legislation; however, I thought that an interesting approach had been taken in Maine.
The age difference is an interesting point for debate, in terms of what the legislation should be driving at. What would happen if there was sexually explicit communication between two 16 or 17-year-olds? What would constitute grooming in a case in which there was no age difference?
The communication would have to be with someone who was under the age of 16. The closer that the young person's age gets to that bar, the more difficult it may be to interpret the communication as either grooming or just sexually explicit exchanges.
You have given a thoughtful analysis of why you feel that the age bar should change. However, you feel that more cases should go to the children's hearings system. How well equipped would that system be to deal with such offences? It does not do so currently and its members are not trained in dealing with that type of offence.
We are in the middle of a review of the children's hearings system. One of the considerations will be how well equipped the system is to deal with all cases but especially those involving the older age group. We have the facility to deal with youngsters up to the age of 18, but we have not considered how the system is resourced for that or how it responds to that.
That is a fair position and, as you said, the whole system is under review. However, do you accept that the current system is not equipped to deal with people from 16 to 18 who have committed such an offence?
It has the capacity to do so under the proposed legislation. There might be a question of resources when it comes to how we respond to referrals through the hearings system. We are about to commence the second phase of the review—
You have said several times that we need to treat the offending behaviour. Your point is well made, but is the current children's hearings system really equipped to deal with that matter? I do not think that it is.
If we had sufficient resources to provide more of the services that we currently provide to deal with sexually problematic behaviour, the answer to your question would be yes.
But if those resources were not available, the answer would be no.
That is not an issue for the bill.
But the bill would have to be amended to allow young people from the ages of 16 to 18 to be dealt with by the children's hearings system.
If the guidance was such—
No, the bill would have to be amended in that way. The committee discussed this matter when it considered the Criminal Justice (Scotland) Bill a couple of years ago.
I want to explore some of the issues surrounding the risk of sexual harm orders. On page 4 of your submission, you say that
I will probably repeat myself but, as I said earlier, restricting the behaviour of perpetrators of sexual abuse is necessary and the bill's provisions will assist in that respect. However, such an approach will have limited impact unless there is some kind of intervention or treatment that requires the perpetrator to look at and change their behaviour.
What form would such intervention or support take?
I can speak only from our experience. We have established projects in which a number of youngsters who exhibit sexually problematic behaviour and their families are given assistance; assessments of their risk to the community are carried out and long-term packages of support are provided. We must remember that these people are young and are at a stage in their development at which we can impact positively on their behaviour and the support that the family can provide.
Who would be responsible for providing those support packages?
I had better not say "What an invitation". We and other organisations would be more than capable of expanding the range of support for those young people.
Given that the targets of RSHOs have not been convicted of any offence, how would such interventions operate?
The RSHO is a civil order, so there is a lesser burden of proof—the balance of probability, rather than beyond all reasonable doubt—which can give cause for concern. However, there are some situations in which an RSHO could be of use. I am thinking of a situation in which young people have been exposed to pornographic videos or pornographic material, there has been a police investigation, and it has been decided not to proceed to prosecution. In such circumstances workers have said to me, "We are certain that something is happening, but there just isn't the evidence to prove it." RSHOs could be used when enough evidence is coming forward in terms of what young people say, but there is not enough evidence to go to court and prove the case beyond reasonable doubt.
That brings me to my next point. If the older sibling was the subject of an RSHO, how would it be enforced?
As I have said, one of the key issues is treatment intervention. That should be a condition of an RSHO. Are you asking how that would be policed?
Yes. What would actually happen if an RSHO was granted?
There would be restrictions on the behaviour that he would be able to exhibit. Importantly, he would be required to examine the behaviour that is causing concern. That is where the supportive treatment-oriented element of the RSHO would come in, which does not exist just now. As it stands, the RSHO would say only, "You're not allowed to conduct yourself in this manner." It would not add, "And here is something that you need to do about it."
Is there a timescale?
As it stands, I think the timescale is two years. We have not commented on the length of time, and we have not considered whether RSHOs should always apply for two years, or the point at which someone is deemed to have satisfied the terms of such an order.
And whether the orders would be extended?
We need more time to consider that. The main point is that there are examples that have been identified by our services. In addition, constructive input is required. Orders should not just be restrictive.
If an order were breached, should the case then become a criminal matter?
Yes. That is the case with most civil orders.
Do you have any problems with that? Could problems arise under the European convention on human rights, given that no offence has been committed and an order has been applied for because it is thought that the risk is sufficient?
The case still has to be made by presenting evidence to a sheriff. Evidence must satisfy people that making an order is appropriate. Concern is always felt about orders—including antisocial behaviour orders and parenting orders—that start as civil matters but whose breach is a criminal matter. However, recent legislation contains examples of such powers.
Do you accept that because the offence in relation to RSHOs is of a sexual nature, the connotations and the stigma that are attached to the orders are likely to be much more of a problem than they are with other civil orders that are granted on the balance of probabilities?
That could be the case. However, if we want to protect children and we think that it is better to have than not to have RSHOs, we must weigh up whether the objective is worth running the risk of some of the negative effects of having a civil order.
Does it have to be a question of priority? Do we not balance the rights of the child, which the bill is of course all about, against the rights of the adult? For example, it is not entirely unknown for an adult to be labelled by a malicious accusation.
Those are not insignificant points. People will have to decide where the balance lies. We adopt in our submission the position that the balance lies in trying to increase the protection of children.
So that would involve examining the circumstances.
The bill is in its early stages, so what is missing is guidance to back it and to contextualise the decisions that are being made. Some of those decisions might be fine—particularly those about civil orders and the acceptable threshold of probability. At times, I and many others who work with young people who are subject to sexual abuse know that something is happening but we cannot put our fingers on the evidence.
I will return in a way to the age differential.
I thought that I had got away from that.
I will also introduce the idea of vulnerability—a power difference, rather than just an age difference. Your submission says that young people with learning difficulties represent
I do not have more definition, other than saying that the number is significant. The figure is significant enough for us to include the matter in our written evidence. That raises the issue of vulnerable adults—it is not just under-16s who are subject to the offences that we are discussing.
Would the bill make any difference to vulnerable adults?
We were not alone in raising vulnerable adults. The bill would not make any difference to them, because the proposed thresholds are based on age, not vulnerability. We take issue with some of those ages. If the committee were to consider a vulnerability threshold, it would need a way of defining vulnerability. Age is easy to define—somebody is 16 or they are not—but there may be different interpretations of vulnerability. We know from experience that a number of young people have mild learning difficulties that have not been picked up at all. Those people do not carry any label, but they are vulnerable.
The issue is very important. You mentioned the criticism that the bill appears not to address grooming within the family or household. Will you comment further on that?
The examples that I gave of situations in which an RSHO could assist were family settings. I return to my opening comment that the vast majority of abuse of children takes place in family or familiar settings, not with people who are not familiar to the children. The bill might not cover family settings, but we know that grooming also happens within such settings. It is all the more difficult to define, because family relations naturally involve familiar contact with young people. We should not forget that most abusive situations occur in family settings.
I accept entirely what you say, but I will press you further on it. Is there a danger of the bill conjuring up an image that modern technology—to be specific, the internet—is the greatest threat? Is there a danger that lessons along the lines of "Don't speak to strange men" will draw attention away from the main source of abuse, which is the domestic setting?
As I said, the internet is basically a force for good for all of us—that is probably a controversial statement—and we should not lose sight of that. We need a heightened awareness of the internet's dangers, but paying undue attention to those dangers and to the danger of abuse happening or abusive situations developing through the internet must not make us lose track of the main danger areas for youngsters, which are in family settings. A review of child protection is taking place, which is also good. The bill is a useful addition to the range of interventions that we have, but I would definitely put the emphasis on what happens to children in family settings and with people whom they know.
Do we have an accurate assessment of how much internet grooming is going on?
The example that I gave was from a recent conference that we held. Strathclyde's 2003 figure was 295 referrals for computer-based crime, five of which were related to grooming.
Those are the figures that have been picked up. Are they an accurate reflection of what is going on out there?
Personally, I do not think so. The figures represent an under-reporting, but I would be cautious about the extent of that under-reporting. Operation ore threw up 7,200 names and operation falcon has followed that up successfully. There is definitely increased activity through the internet, but it might be quite difficult to quantify that.
Have you looked at any studies abroad, such as in the United States?
Combating paedophile information networks in Europe—COPINE—is a very useful European study group. I can certainly get additional information to the committee if you think that it would be helpful.
I think that one in four children between certain ages had been approached, which seems a horrendous figure. I wondered whether you felt that the figure of 295 accurately reflected the potential scale.
The figure of 295 is for referrals for computer-based crime, not just grooming. Of that 295, only a small percentage concerned grooming. The information is difficult to get, but if the committee wants more information, we can try to provide it with further briefing.
It is slightly unfortunate, but I think that I might be going to ask you questions about things that you do not know anything about.
They will be very easy to answer in that case.
I will try to explain before I ask my question.
Funnily enough, I have some thoughts on that.
By anomalies, do you mean cases such as those in which one of the people aged between 16 and 18 was married?
Yes. We return to that 16 to 17 years age bracket. In essence, the age of sexual consent is 16, but some protection would be built into the legislation for 16 and 17 year olds under certain circumstances when offences could be done to them, if you like. In principle, we agree with that because the intention is to try to take youngsters who are subject to sexual exploitation out of the criminal justice system.
Your first caveat was about the anomaly that, in England and Wales, appears to have been covered by guidance and a phrase suggesting that the law does not apply to people who are in an enduring family relationship, which covers not only marriage, but co-habitation or same-sex relationships—I presume that such relationships could be covered by mention of the Civil Partnership Bill. That caveat can be dealt with.
There is also the issue of consent. The offence of soliciting is about a financial transaction that takes away consent. If we are considering the implications for 16 and 17-year-olds, it is worth worrying about how consensual the acts are in which people engage. Consideration of that will help to sort out the issues that we want to cover in guidance. We need to ensure that the provisions are not just a catch-all and that we do not get into situations that we really do not want to be in.
At present, Scots law has no specific offence of prostitution and it is not an offence to pay a person for sexual services. You have mentioned the issue already, but can you see other difficulties in making it an offence to pay or reward a person who is under 18 for sex or to offer to do so? Do you welcome the proposed amendment on child prostitution?
We welcome it, but with the rider that we must consider the care and protection issue and think about how we offer support to young people. We need to consider the interventions and resources that are at our disposal to assist young people. I am not saying that simply because I am expected to ask for more resources; I genuinely believe that if the proposed amendment is well intentioned, it must be followed up with consideration of how to support the young people. We want to remove them from the criminal justice system, but we must also ensure that we offer the right care and protection and the support that they require.
Barnardo's does a lot of work with 16 and 17-year-olds. We may not have any choice about the proposed amendments, because some of them will enforce our obligations under European law. Margaret Smith has raised some of the issues. I am certain that, in a well-known red-light area in my constituency, high numbers of younger women are involved. I may be wrong, but I suspect that women who are between 16 and 18 are prevalent there. Although we have not seen the details of the proposed amendment, it seems that it would make women in that age group guilty of an offence.
My understanding is that it would remove such women from the criminal justice system. My point is that, however well intentioned it is, it will leave the question of how we provide appropriate support. Having identified that age group as vulnerable, what will we do about it? We must consider how to provide adequate support for that group of women.
Are you confident about the positive effects of your treatment programmes? I know that it is difficult to measure that, but what are the success rates? If we are going to push that issue, we need information.
I am happy to provide additional information to the committee and I invite members to visit some of our services.
The information is important.
There are no further questions. Tam, do you want to add anything?
I have said just about everything that I need to—I have taken up enough time. I am satisfied that I have made the points that we feel we need to make.
On behalf of the committee, I thank you for your valuable evidence. You have put your points across well and we are grateful for your oral and written evidence.
Meeting suspended.
On resuming—
I welcome to the committee James Chalmers, who is a lecturer in criminal law in the University of Aberdeen's school of law and is a member of the Scottish Law Commission's advisory group on reform of the law of rape and other sexual offences.
Good morning, Mr Chalmers. I know that you listened to the first evidence-taking session, so it might seem a bit late to be asking you this question. However, do you think that there is a need to create the offence under section 1 of the bill? I ask that because I am aware that, at the moment, cases are reported to the police and are investigated and that the judicial process takes its course. If you believe that it is necessary to create the new offence, could you say what is unsatisfactory about the current situation that makes that the case?
The creation of the offence is necessary. Some of the activities that the offence strikes at would already be criminal in one of two ways. It might be that online grooming, for example, would amount to the offence of lewd and libidinous practices, which the High Court has previously suggested is the case. There are two problems with that, however. First, although that offence applies to girls under the age of 16, it does not apply to boys who are 14 and over. Secondly, online grooming might not be sexual in itself and the offence of lewd and libidinous practices applies only to conduct that is liable to deprave and corrupt the child. If the conduct is objectively innocent at that stage, that offence is not committed.
You will have heard Tam Baillie say that Barnardo's found it difficult to find information about the prevalence of grooming. Do you know of any research that has been done into the extent to which grooming takes place?
Some research has been done. I am not aware of any being done specifically in Scotland or the UK, although Barnardo's has been able to report the number of people with whom it has come into contact who have either engaged in grooming or have been the recipients of online solicitations and similar activity.
You say that there is currently no research in Scotland or in the UK. Are you aware of anybody proposing any research?
I am aware that Barnardo's at one point called for a national audit to assess the scale of the problem. If research is on-going, I am not aware of it, I am afraid.
There was discussion in the previous evidence session of the apparent legal limbo that 16 and 17-year-olds would be in under the bill as it is currently cast. Do you have any views about the legal implications of the fact that the offence can by committed only by a person aged 18 and over rather than by a person aged 16 and over?
As Tam Baillie said, there is certainly evidence to suggest that sexual offences are committed by children under the age of 18. A Home Office study that was published in 1998 suggested that adolescents might be responsible for as many as a third of all sexual offences. I tend towards the view that the age that the bill currently specifies, which is 18, may need to be reduced. I agree that prosecution might not be the normal response, but at least the matter would clearly be covered by the criminal law.
Would there be any legal difficulties if the age were to come down to 16?
There is a general problem with regard to the extent to which the criminal law should cover consensual sexual activity between children and young adults of around the same age. I do not think that that is a problem in the bill as such; it is a problem that relates to the underlying law on sexual offences. I think that the Scottish Law Commission will examine the issue in its current review of sexual offences, although that is a matter for the commission. The bill applies only where the person concerned is acting with the intention of committing a sexual offence.
My next question is on the cross-jurisdictional issues that are associated with age, in particular when somebody is legitimately married to someone who is under the age of 16. What legal issues would be associated with, for example, a marriage exemption?
Some of the underlying offences already contain marriage exemptions. Most obviously, the offence of sexual intercourse with a girl under the age of 16 applies only to unlawful—that means extramarital—sexual intercourse. However, with other offences, there is either no explicit exemption or the issue is unclear. There would be no great difficulty with such an exemption.
In practice, would the situation be that the fiscal would decide that it would not be in the public interest to prosecute?
In practice, the issue could be—I am sure that it would be—dealt with as a matter of prosecutorial discretion. However, it could be also be explicitly dealt with in legislation if that were thought to be desirable.
A House of Commons research paper that was produced in 2000 suggests that the legal age of sexual consent in Spain is 12—a footnote makes the point that in Spain
If someone is travelling to commit an offence abroad, the bill does not require that what they propose to do be criminal under the law of that country, so there is an issue about whether it would be appropriate to prosecute somebody for intending to travel to commit an offence in, for example, Spain that would not be an offence in the UK or Scotland. Given the huge range of provisions in different jurisdictions, the matter might easily be dealt with only by way of prosecutorial discretion. The alternative would be to adopt a rule that the bill does not apply to actions that are not criminal in the country where they are to be carried out, but that would defeat some of the objectives of the bill.
The footnote that relates to Spain in the House of Commons library research paper states:
Yes. Because legal provisions in different countries are not consistent, a neat general rule cannot be adopted, other than one that would remove actions that are not criminal in overseas jurisdictions from the scope of the bill entirely, which would be undesirable.
The offence in the bill will apply if a person has had at least two prior communications or meetings with the child. Is that necessary? Could the offence be constituted with only one prior meeting or communication? Could an offence be committed if an adult simply arranged to meet a child with the purposes of engaging in sexual activity?
On your last point, I am not sure in what circumstances a person could arrange to meet a child without prior communication with them. Do you mean cases in which communication is made with a child through an intermediary?
That is a good point. I was thinking about that as I asked the question. How would a person arrange to meet somebody if they had not communicated with them? Perhaps modern technology has gone further than I know. I suppose that we are talking about opportunists.
One of the practical issues is proving exactly what the adult intends to do, which may be difficult in the absence of prior communication. However, I have doubts about the requirement for two previous meetings or communications. The bill does not require that those communications must have a grooming nature—they could be entirely innocent or inadvertent, but that would suffice to bring the further actions under the scope of the bill. I assume that the reason is that it is difficult to find a definition so that the provision would apply only to communications that have a grooming nature.
It has been whispered in my ear that a third party could be involved in the communication. Is that covered in the bill, particularly if the third party is furth of our shores?
That could be covered by treating the situation as a conspiracy of two people acting together to commit a criminal act. However, the bill is not absolutely clear on how that would be dealt with. An explicit provision might be needed if the issue was thought to be a problem.
You raise a couple of points that we should consider.
The bill is absolutely neutral on that. There may be good reasons for that. Although the bill is not limited to cases of internet grooming, I will use that as an example. A child might initiate contact with an adult but believe that the adult is another child because they portray themselves online in a certain way. An attempt to limit the offence to cases in which the adult initiates communication would give rise to serious problems, such as problems with proof. However, the wording of section 1 makes the issue irrelevant. Of course, the matter may be taken into account in the exercise of prosecutorial discretion.
We need to follow up the point about how third parties come under the bill and the point that one long communication might be more effective for grooming than a couple of shorter ones.
You raised the issue of whether it matters who initiates. The Executive's evidence is not clear on that point. It did not suggest that there was a particular reason or subtext for not including a specification in the bill, so we need to pursue the matter.
In that situation, there is still scope for intervention through a risk of sexual harm order. There is something to be said for the view that, where matters are only at a very preparatory stage, a criminal prosecution may not be the best way of dealing with the actions. An intervention such as a risk of sexual harm order would probably stand more chance of being effective.
In your view, would it be possible to make it an offence for someone to arrange by internet communication to meet a child who thinks that that person is their age? Is it necessary also to show that there has been more than an internet exchange and that the adult has acted on a communication by arranging to buy a ticket to travel to meet the child?
Under the bill as drafted, it would be necessary to show that the adult had met the child or travelled with the intention of meeting them. An offence could be drafted that covered simply the communication, but that might pose evidential difficulties. It might not be possible to be certain from the communication that the adult seriously intended to meet the child. We may be confident that an adult is not just contemplating a sexual offence, but has the intention to commit it, only when they take action to travel to meet a child. That may be one reason for limiting the offence in that way.
Are there any evidential issues relating to the communication? Could someone argue that the fact that a message has come from their computer does not mean that they typed it? Are there difficulties in proving that the communication came from the alleged offender?
There is always a general problem with evidence that is obtained from computers in such a way. That problem is not peculiar to the bill. I am not sure that much can be done in the bill to deal with it. To a certain extent, it is a technological rather than a legal problem. At issue is the information that the police are able to derive from computer and other records.
Perhaps that is why the bill includes the provision that the accused must have made arrangements, which shows that they are acting on a communication and provides confirmation that the communication came from them. Without that confirmation, one would have to prove that the communication came from the accused.
I agree.
In your view, are risk of sexual harm orders compatible with the European convention on human rights?
In my view, they are compatible with the convention. They are very similar to antisocial behaviour orders in the way in which they are drafted. In the case of McCann v Manchester Crown Court in 2002, the House of Lords held that ASBOs were compatible with the convention, at least under English law. The same issues arise in relation to risk of sexual harm orders. The basis for any ECHR challenge would be the argument that the orders are criminal penalties and that it is inappropriate to apply the safeguards that apply in civil proceedings to criminal cases. However, the case law of the European Court of Human Rights makes it clear that court proceedings that cannot result in a penalty are not criminal proceedings for the purposes of the European convention on human rights. The proceedings that we are discussing can result only in an order being made. A penalty might be imposed later on if the order is breached, but that will require the criminal standard of proof to be met in criminal proceedings. The ECHR safeguards would be properly met in such proceedings.
That has taken us quite far down the proof slide, as it were, but perhaps we could go step by step. Are you confident that, in the event of such a challenge, no distinction could be made between the stigma that is attached to breaching, or even to being served with, a risk of sexual harm order and that which is associated with other kinds of orders for behaviour such as vandalism, which one would in no way condone but which nevertheless tends not to provoke the same kind of reaction that the behaviour that we are talking about does?
Civil proceedings may also involve significant stigma. For example, in an action for defamation that is based on an allegation that someone committed a sexual offence, the relevant standard of proof would be on the basis of the balance of probabilities. In such an action, the safeguards that are applicable in criminal proceedings would not apply.
Did the judgment consider only the proof, evidence and consequences of the issue? Did it take into consideration the balance between the obvious necessity to protect the rights of the child and the desire to protect the rights of the adult?
In the McCann case, which concerned an antisocial behaviour order, the House of Lords laid a great deal of stress on the rights of communities to be free from antisocial behaviour. The same sort of argument could apply to the rights of the child to be free from unwanted and illegal sexual activity. That would also be an important consideration.
In other high-profile cases in the past, evidence has been called into question and found in retrospect to have been unsubstantiated. Is there any danger of that kind of thing happening if a risk of sexual harm order was imposed on an adult after a malicious accusation, given that the standard of proof—a matter on which the bill is silent—is likely to be, as you have confirmed, on the balance of probabilities?
With stigma, there is always an issue that wrongful accusations might be made. A potential way of dealing with that problem is to consider whether it would be necessary for an application for a risk of sexual harm order to attract publicity and for the person against whom the order is sought to be publicly named. Depending on how the bill operates in practice, it might be felt that publicly naming the individual would be inappropriate and unnecessary, just as the names of those who are on the sex offenders registers are not released. That might be one way of dealing with the stigma issue.
We have covered most aspects apart from the sanction for a breach of an RSHO, which is a civil order. We may have gone over that issue, but I want to be absolutely sure that we have the matter on record.
Under section 7, the bill explicitly provides that the sanction for a breach of a risk of sexual harm order or interim RSHO would be a criminal prosecution. In that situation, the criminal standard of proof and all the safeguards that apply in criminal proceedings would apply.
Is that the usual sanction for a breach of a civil order?
No. The measure that is most analogous to a risk of sexual harm order is, I suppose, an interdict. The appropriate sanction that follows on from proceedings for breach of interdict is dealt with in the civil courts but the criminal standard of proof applies because of the nature of the allegations involved.
However, the proceedings under the bill would go a bit further in that they would be for a prosecution rather than for an interdict.
That is correct, but an action for breach of interdict can result in criminal penalties. Although the action takes place in the civil courts, the proceedings are, in effect, criminal in nature.
The types of conduct that section 2(3) identifies include
No. A doctor or someone else in that situation would commit an act that fell within the scope of the section, but that would be insufficient for a chief constable to bring an action before a court to make an order, because it is also necessary to show that an order is required to protect
That covers the doctor. What about the teacher?
The same applies to the teacher. It would not be necessary to make an order to protect any child from harm from the teacher. If that is a concern, a model is available in the English Sexual Offences Act 2003, which contains the offence of facilitating commission of a child sex offence and an exception for teachers who provide sexual health advice and doctors who provide contraception—for anything that is done for a child's welfare. Those provisions would provide an appropriate model if it were felt necessary for the bill to say that such actions do not fall within the scope of section 2. Even if they did fall within the list of acts in the section, the necessity test would not be met.
The bill defines a child as a person who is under 16. What is the situation when the target of an application for an RSHO reasonably believes that the younger person is over 16?
That person would still have committed one of the acts that is referred to. It is not necessary to show a relevant criminal state of mind; it must simply be shown that they committed the act. If the trigger condition was satisfied, an order could be made. However, if the person concerned reasonably believed that the child was over 16, it is difficult to see how the test that an order must be necessary to protect children from harm could be passed.
I will return to Margaret Mitchell's questions on risk of sexual harm orders, which you said are compatible with the ECHR. I am a bit uneasy about how wide the scope is. The bill gives no clues to the evidence that must be led, other than what is necessary to protect a child. Does the bill need more detail about what the court will look for? In the absence of that detail, I presume that, as a chief constable can request an order, they must lead evidence that a child has perhaps been sexually abused or has had sexually explicit material put in front of them. In some cases, a chief constable may lead evidence that would be insufficient to be led in a court of law. In leading evidence, will such issues have to be raised to obtain a sheriff's agreement to a risk of sexual harm order?
Evidence might be led that would be inadmissible in a criminal court, but it would still have to be admissible in a civil court, because civil proceedings will be used. The standard of proof that will apply in such cases may raise an issue. I understand that the Executive's view is that, because the bill is silent on the subject, the civil standard of proof applies and only proof on the balance of probabilities is required. I am not as confident about that, because it has been said of antisocial behaviour orders in England, which are made on a similar basis, that the criminal standard of proof must apply and that proof must be beyond reasonable doubt.
Do you agree that evidence could be presented to a civil court that might refer to a crime that cannot be proved in a criminal court?
Yes.
Would that be compatible with the European convention on human rights?
Yes, because the only situation in which the matter could be resolved by a criminal penalty's being imposed would be if, in a subsequent prosecution, a breach of the order were proved beyond reasonable doubt.
Is not it a fundamental human right that if someone has committed a crime for which there is evidence they should be tried in front of their peers in a criminal court?
On the basis of the law as it stands, I am comfortable that what is proposed appears to be compliant with the ECHR. That may not mean that it would, as a matter of policy, always be advisable to seek RSHOs. A decision's simply being compatible with the ECHR does not mean that it is a wise decision. Orders such as the RSHO—for which we could certainly go beyond what is required for the ECHR—are designed to deal with situations in which it is not possible to bring a criminal prosecution but there is thought to be risk. Therefore, in a sense, the RSHO represents a deliberate policy decision to relax the standard of proof to allow preventive measures to be taken. The Executive might give you the answer that the order would not in itself require that the person in question was guilty of a crime. To obtain an RSHO would certainly require proof that a person had committed an act. If it could be proved that such an act also involved an appropriate criminal state of mind, that would amount to a crime. However, there is no need to prove such a state of mind in order to obtain an RHSO.
That is my point.
I am not entirely sure how it would be possible to frame a provision along such lines. The provision is designed to allow an order to be made if it is shown that a child is, or children are, at risk. I am not sure why, provided that that were shown, it would be desirable to limit how it might be shown. I have great difficulty in envisioning what any such restriction would look like, or how it could be usefully drafted.
Section 5 makes provision for an interim RSHO but, unlike the full order, there is no test for the making of such an order other than a sheriff thinking that it is just to do so. Should we have a clearer test for the interim RSHO?
I think that that provision is rather surprising, which I touched on in my written submission. I think that the test for the interim RSHO is modelled on the English legislation on antisocial behaviour orders in the Crime and Disorder Act 1998, in which an interim ASBO may be made if a court considers that it is just to do so. It seems that that test was not considered appropriate for the Scottish antisocial behaviour legislation—the Antisocial Behaviour etc (Scotland) Act 2004—in which all the conditions that are required for a full ASBO must also be met for an interim ASBO. However, it is necessary only to show prima facie evidence that the acts that would justify making an order had been committed. In a sense, the test for a full order is relaxed to the extent that only prima facie proof of the act is required. However, it must still be shown that the order is necessary to protect a person from antisocial behaviour. As I said, that is a clear and somewhat stricter test than that which is proposed in the bill. The Antisocial Behaviour etc (Scotland) Act 2004 provides a clear model that could be followed.
I have some difficulty with this issue and have asked the Executive about it. If we are treating the protection of children as the priority for the system and we get to the point at which it is necessary to apply for an order to protect the child, the system should give priority to that, rather than be modelled on antisocial behaviour orders, the nature of which is completely different.
An interim order is designed to be used pending a hearing on a full sexual harm order. If there is a problem, it is a problem with orders in general rather than specifically with the interim order provisions.
Would you take the view that, if there were to be an offence in the future, after an order had been applied, the criminal court that was dealing with the case should have that information before it? In other words, should the order be treated the same as previous convictions?
If the offence for which the person was being prosecuted was a breach of the order, the court would necessarily have the details of the order in front of it. If the person was being prosecuted for a full criminal offence, I expect that they would, as a matter of practice, be prosecuted at the same time for a breach of the order. Again, in that case, the court would have before it the fact that the order had been imposed when it was imposing the sentence.
The court would not have that information before the sentence was imposed.
That is correct.
So, in your view, a breach would be treated like a previous conviction.
No—it would not be treated like a previous conviction. If an accused were being prosecuted for breach of an RSHO, the fact that they were being prosecuted for that offence would demonstrate that they had been subject to an order in the same way that somebody who was prosecuted for—
If an unrelated offence—that is, one other than a breach of the order—were committed, would the order be treated in the same way as a previous conviction would be?
If the offence were unrelated, my view is that the order would not be treated as a previous conviction. Such evidence would not normally be relevant evidence in such a case, which would mean that it might not be possible to lead it. I do not want to state categorically that such evidence could never be led, but it would not normally be evidence that would be relevant in relation to proving a charge against the accused in a case such as the one that you outlined.
Will you confirm that, for an interim antisocial behaviour order, there has to be a demonstrated urgency and—this is my recollection, which you might confirm or otherwise—it is not necessary that the person on whom the order might be served has been found?
I will consult my copy of the relevant legislation, which I have with me.
I must confess that although I remember the discussion on that subject, I do not remember the outcome. One of the arguments that was made on interim ASBOs was that the supposed perpetrator of antisocial behaviour should not be able to escape having an order placed on them by removing themselves and not turning up. Are you suggesting that we did not win that argument?
I will just check the statute. It states that the application must be intimated.
Is that on a best-effort basis?
Yes—the intimation need not necessarily be successful.
Therefore, under the Scottish legislation on antisocial behaviour, it is possible that a person on whom an interim antisocial behaviour order—not a full order—has been served could be unaware of that.
Yes.
Is that mirrored in the bill's provisions for interim RSHOs?
The bill requires only that the application must be intimated.
Again, such an application might or might not have been successfully communicated. Therefore, there are some distinct differences in the proposals for the interim RSHO that would cover particular circumstances that might apply in a small percentage of cases.
Yes.
So the existence of an interim RSHO could have a value in preventing the person on whom it might be served from thwarting the protection of the child in question simply by removing themselves for a period.
Yes, although it would still be necessary to make that person aware in some way of the order's existence for it to have any value. The matter is not clear from section 7, which would create the offence of breach of an RSHO or interim RSHO, but it is probable—if not certain—that the courts would require that the accused was aware of the order's existence before they could be found guilty of a breach.
Are you suggesting that, if a person against whom an interim order has been sought and granted has commenced a journey and left the jurisdiction of the UK, they could not necessarily commit a breach of the interim RSHO if they were unaware of the granting of that interim order?
Yes. The offence of breach of an RSHO, which is the same whether the order is a full or interim RSHO, requires that the offender has breached the terms of the order "without reasonable excuse". Not being aware of the order would generally be a reasonable excuse. However, if the person knew that an RSHO was about to be made and deliberately absented himself or herself from the jurisdiction in order to avoid finding out about the order, that might not be treated as a reasonable excuse. That would have to be determined case by case. The courts would probably require knowledge of the order or the risk of the order. It is difficult to see how, if an order of which the accused was entirely unaware had been made, the accused could not be said to have a reasonable excuse for not knowing that they were prohibited from doing certain things.
So, after all that, under what circumstances will interim orders be of value?
Interim orders will be of value simply because it will take time, in many cases, to schedule a full court hearing at which all the evidence can be led. Under the terms of the bill, interim orders are designed to cover the gap between proceedings being initiated and a full hearing before the sheriff.
On the point that Stewart Stevenson was making, would the RSHO always be about preventing an act that was, in itself, an offence?
No. The terms of the RSHO are not limited in that way. All that it has to do is prohibit the person against whom the order is taken out from doing anything that is described in the order. The fact that breach of an order is an offence demonstrates that the order is not designed to be limited to preventing things that would constitute offences. If that were the case, there would be no need for breach of an order to be an offence. There is a necessary implication that the order may go much further than simply prohibiting criminal offences.
You may have heard me ask this question of Barnardo's earlier. The Executive has proposed a series of amendments for which we do not yet have the text, so we are slightly in the dark, although we know that it is trying to bring Scots law into line with the UN Convention on the Rights of the Child and the EU framework regarding the sexual exploitation of children and child pornography. The present law makes it an offence to create, possess or distribute indecent photographs of children under 16. The bill proposes to raise that age limit to 18, as has been done in England and Wales. We would be interested to hear your views on that and on the need for exceptions and exemptions to that to cover circumstances in which the person involved is married or, as in England and Wales, is in an enduring family relationship; that is, cohabiting or in a same-sex relationship.
I was aware of the Executive's proposals, and I am grateful to the clerks for making me aware that that issue was going to be raised today.
At present, it is not an offence to pay a person for sexual services, irrespective of the age of the provider of those services, unless the child is under 16, in which case the age of consent is a consideration. Can you foresee any difficulty with making it an offence to pay or reward a person under 18 for sex or to offer to do so? What implications does that have for our view of the law on prostitution, which is currently under review in Scotland?
The practical implications of such a change would be relatively minor, especially concerning a girl under the age of 16, because the examples that you cite would already be criminal. The implications would obviously be more significant if the girl was aged between 16 and 18. I cannot foresee any specific difficulties in making that change. It might be desirable to make it clear that the child is not guilty of the offence as an accessory. That problem arises generally in the law on sexual offences in Scotland, and has never been resolved by the courts for the simple reason that people in that situation are not prosecuted.
Would it be necessary to prove that the person who procured the prostitute was aware of the prostitute's age? I offer a practical example. Someone who is driving around the middle of Glasgow or Edinburgh might choose—possibly in great haste—a young woman from the street who turns out to be 17 and a half years old, rather than 19 years old. I presume that for that person to be guilty of an offence, it would have to be proved that they knew that the young woman was under 18.
It is difficult to answer that question because the matter depends in part on how the Executive chooses to draft the amendment. The law could be drafted as you suggest, but it is more likely that the Executive will propose a defence of reasonable belief, instead of placing a positive obligation on the prosecution to show that someone had knowledge of the individual's age. There might be a defence of reasonable belief that that person was over the age of 18, which might be sufficient to deal with concerns.
As there are no further questions, I thank you for your evidence. You have made some valuable points that we need to consider. Would you like to make some concluding remarks?
No. All the points that I wanted to make have been covered in questioning.