Protecting Children from Sexual Harm Consultation
1. This consultation document seeks your views on:
- proposed legislation which would make it an offence to meet or travel to meet children for purposes of committing a sexual offence, following grooming behaviour;
- a proposal for Risk of Sexual Harm Orders which are aimed at protecting children from those who display inappropriate sexual behaviour towards them; and
- the further use of Sexual Offence Prevention Orders, so that they can be applied to those convicted of sex offences by the court when they are sentenced.
2. "Grooming" in this context is contact with a child to facilitate the commission of a sexual offence against that child. Grooming children for sexual abuse is not new. It can take place on the internet and other modern forms of communication such as texting and exchanging pictures by mobile phone, as well as by more traditional forms of communication.
3. The proposed new offence in relation to grooming will be committed by an adult where all the following elements are present:
- an adult who is 18 or over, travels to meet, or actually meets, with a child who is under 16;
- the adult intends to commit a sexual offence against the child - evidence for this might be from materials brought by the adult such as condoms or the nature of previous communications on the part of the adult;
- the adult has communicated with the child on at least two occasions beforehand; and
- the adult does not reasonably believe that the child is 16 or older.
The proposed new offence can therefore be prosecuted before any actual physical contact or other offence takes place.
4. The proposed Risk of Sexual Harm Orders (RSHOs) are a further development of Sex Offender Orders which were relevant to convicted sex offenders and were applicable for a minimum of 5 years. RSHOs can be applied for by a Chief Constable in respect of an adult of 18 or more who has displayed sexual behaviour in relation to a child of under 16. The sexual behaviour would need to have taken place on at least two occasions and would need to fall within one of the following categories:
- engaging in sexual activity involving, or in the presence of, a child;
- causing a child to watch a person engaging in sexual activity - including still or moving images;
- giving a child anything that relates to a sexual activity; and
- communicating with a child where any part of the communication is sexual.
5. The criteria for making an order will be that the court must be satisfied that it is necessary to protect the child. The person in question does not need to have been convicted of any offence. The RSHO will apply for a minimum of two years. Unlike the previous Sex Offender Orders or SOPOs, which are described below, and have a five-year minimum period, RSHOs can be made in relation to someone not convicted of any offence. RSHOs will set out specific activities that the person in question must not do. This might include contacting a particular child or going to particular locations. Breach of the RSHO would be a criminal offence and carry a maximum penalty of five years' imprisonment.
6. We also propose the extension of the use of Sexual Offence Prevention Orders (SOPOs). At present the orders can be made on application by a Chief Constable in relation to a person convicted of specified offences. The orders apply for a minimum of five years and, like RSHOs, specify activities that the person concerned must not do. We propose that SOPOs should also be available for a court to impose when it sentences an offender for specified sex offences or any other offence that appears to the court to have a sexual element to it. For example a person might be charged with and convicted of a serious assault in circumstances where the court took the view that the motive for the assault was sexual. A breach of a SOPO would be a criminal offence and be punishable with up to five years' imprisonment.
Current Legal Position
7. At present there are a number of statutory and common law offences that might be committed during the course of grooming behaviour. Depending on the circumstances of each individual case, grooming may constitute:
- an offence under the Communications Act (2003)
- an 0ffence under the Civic Government (Scotland) Act
- lewd and libidinous practices
- breach of the peace.
8. Fraud is the bringing about of some practical result by means of a false pretence. Some form of deception is essential to every case of common law fraud. If the deception causes the victim to do something he or she otherwise would not have done, then the crime is complete. For example if a teenage girl had been persuaded to meet a 40-year-old man after he had pretended to be a teenage boy in an internet chatroom say, then the man could be guilty of fraud.
9. The Communications Act (2003) which repealed the Telecommunications Act 1984 creates a number of offences including sending, by means of a public electronic communications network, messages that are grossly offensive or of an indecent, obscene or menacing character.
10. Sections 52(1) and 52A of the Civic Government (Scotland) Act 1982 make it an offence, without legitimate reason, to take, make, distribute, or possess an indecent photograph or pseudo-photograph, film or video recording of a child.
11. Any person who engages in any indecent practice with a girl under the age of puberty (12) or a boy under 14 commits a common law offence of lewd indecent and libidinous practices. In respect of a girl who has reached the age of 12 but who is not yet 16, it is a statutory offence under the Criminal Law (Consolidation) (Scotland) Act 1995. The consent of the child to such practices is irrelevant. The essence of the offence is
"the tendency of the conduct to corrupt the innocence of the complainer". Examples of such behaviour are indecent physical contact with the victim, the taking of indecent photos of the victim, the showing of indecent photos or videos to the victim, or indecent exposure to the victim or by other forms of indecent conduct carried out in the presence of the victim. It may be committed by means of a lewd conversation with the victim, whether face to face or by a telephone call or through an internet chatroom.
12. A phase of grooming which does not contain any lewd communications may not be open to prosecution under the offence of lewd, indecent or libidinous conduct. The preparatory communications and steps involved in grooming may not always fall within the definition of lewd and libidinous behaviour depending on the circumstances of each case.
13. If the communications are not lewd or indecent then this type of behaviour is not at present a criminal offence. The behaviour may be suspicious especially if it is, for example, an adult man conversing with a teenage girl in an internet chatroom, but this behaviour can not always be prosecuted under the criminal law unless there is other evidence, in the form of lewd or indecent communication for example from which an inference can be drawn that there may be an intention to engage in a sexual relationship with the child, perhaps through a meeting.
14. Breach of the peace is conduct which may reasonably be expected to cause any person to be alarmed, upset or annoyed or to provoke a disturbance of the peace. This could arise for example where the behaviour of a paedophile alarmed, upset or annoyed the parents of a potential victim. It may however, be difficult to demonstrate this where previous convictions involving sex offences cannot be revealed during the course of a trial and the behaviour may in the absence of evidence to the contrary appear to be innocent.
15. The Executive is clear that the law needs to be strengthened in this area with the aim of protecting children from sexual harm.
We therefore attach a draft Bill and, in the paragraphs below, an explanation of the purpose of the sections of the draft Bill.
The provisions in this draft Bill are intentionally similar to those adopted in England and Wales by the Sexual Offences Act 2003. This has the advantage that the law is clear throughout the United Kingdom and is evidence of our determination to work together to protect our children. We are however, aware that our different legal tradition in Scotland may prompt a different approach in some areas, and identifying the need for any variations in approach is one of the key purposes of this consultation.
16. To tackle predatory sexual behaviour of grooming both on- and off-line, we propose to introduce a new offence of Sexual Grooming with a maximum penalty of 10 years' imprisonment. It will be designed to catch those aged 18 or over who undertake a course of conduct with a child under 16 leading to a meeting where the adult intends to engage in sexual activity with a child. It will enable action to be taken before any sexual activity takes place where it is clear that this is what the offender intends. The offence aims to strike a balance in criminalising activity where it has become clear that there is an intention to commit a sexual offence without at the same time criminalising those who might engage in fantasy and use of false identity on the internet without seeking to gain any criminal or other advantage from doing so. It is for this reason that the offence becomes complete when an adult meets or travels to meet a child following grooming activity, and that what might be perceived as grooming activity is not sufficient itself for the offence to have been committed.
Section 1 - Meeting a child following sexual grooming, etc.
17. Section 1 makes it an offence for an adult aged 18 or over to meet intentionally, or to travel with the intention of meeting, a child aged under 16 in any part of the world, if the adult has met or communicated with that child on at least two earlier occasions, and intends to commit a "relevant offence" against that child either at the time of the meeting or on a subsequent occasion. An offence is not committed if the adult reasonably believes the child to be 16 or over. Relevant offences are set out in schedule 1 of the draft Bill. This schedule lists offences of a sexual nature that could be committed against children.
18. The offence is intended to cover situations where an adult establishes contact with a child through, for example meetings, telephone conversations or communications on the internet, and gains the child's trust and confidence so that they can arrange to meet the child for the purpose of committing a "relevant offence" against the child. The course of conduct prior to the meeting that triggers the offence may, but need not necessarily, have an explicitly sexual content.
19. The offence would be complete when, following the earlier contacts, the adult meets the child or travels to meet the child with the intent to commit a relevant offence against the child. The intended offence does not have to take place.
20. The evidence of the adult's intention to commit an offence may be drawn from the communications between the adult and the child before the meeting or may be drawn from other circumstances, for example if the adult travels to the meeting with condoms and lubricants.
21. Subsection (2)(a) provides that the adults' previous meetings or communications with the child can have taken place in or across any part of the world.
22. Subsection (3) provides that the offence can be prosecuted summarily or on indictment. Anyone found guilty of the offence is liable to punishment of six months' imprisonment and/or the statutory maximum fine under summary procedure or to an unlimited fine and/or 10 years' imprisonment on indictment.
Risk of Sexual Harm Orders (RSHOs)
23. To strengthen the protection for children in this area further, we propose the introduction of a new civil order, Risk of Sexual Harm Order, intended to protect children under 16 from inappropriate sexual behaviour by adults aged 18 or over. This would assist the police to impose early restrictions on those persons believed to be a risk to the safety of our children. This order would be made by the courts, on application of the police, in respect of an adult who is deemed to be acting in such a way as to present a risk of sexual harm to children, irrespective of whether such a person has previously been convicted of a sex offence or not.
24. The order will contain such conditions as are necessary to protect a particular child or children in general from the person concerned. It is intended to complement the new criminal offence of grooming but will cover a much wider spectrum of behaviour, for example explicit communication with children via email or in chatrooms or simply loitering around schools or playgrounds. The penalty for breach of the order will be a maximum of five years' imprisonment, a fine, or both.
Section 2 - Risk Of Sexual Harm Order: Applications, Grounds and Effects
25. These provisions relate to a civil, preventative order for which the police can apply to a sheriff court in respect of a person over the age of 18, if that person has, on at least two occasions, engaged in sexually explicit conduct or communication with a child or children, and as a result there is reasonable cause to believe that the order is necessary to protect a child or children from harm arising out of future such acts by that person.
The defender may or may not have a conviction for a sexual (or any other) offence. The child or children to be protected must be under 16.
26. Subsection (1) explains the circumstances in which a risk of sexual harm order may be made. The acts in subsection (3) which constitute the trigger behaviour for an order all involve explicitly sexual communication or conduct with or towards a child. The terms "image" and "sexual activity" are defined.
The types of behaviour at (3) (a) and (b) and (d) may already amount to a criminal offence. However, the trigger behaviour need not amount to criminal conduct. Subsection (3) (c) would cover a person giving condoms or a sex toy to a child. Subsection (3) (d) would cover a person sending pornographic images to a child over the internet or describing the sexual acts they would like to carry out on the child. An order would not be made unless the court is satisfied (under subsection (4) (b)) that further such acts would cause a child or children physical or psychological harm.
27. For the purpose of the Bill, "image" includes photographs, cartoon strips, email attachments and drawings. The use of the words "but regardless of any person's purpose" in sections (3) (f) (ii) means that an activity, or communication, or image, would only be "sexual" for the purposes of this Bill if a reasonable person, purely from the nature and circumstances of the activity, communication or image, would consider it to be sexual, without having to enquire into the motive behind it.
28. The order entitles the court to prohibit the defender from doing anything described in it. The minimum duration of an order is two years. The order is intended as a preventative measure to deter unlawful or harmful sexual activity with, or conduct towards, a child. Breach of an order, without reasonable excuse, is a criminal offence that may be prosecuted either summarily or on indictment, with a maximum penalty on indictment of five years' imprisonment.
29. Given that a person subject to a RSHO, need not have been convicted of any sexual offence, they would not be subject to the notification requirements in Part 2 of the Sexual Offences Act. However, a breach of a RSHO would be a criminal offence for which a conviction would entail compliance with the notification requirements.
30. The RSHO should not be used as a substitute for the criminal offence, but applies in circumstances where the behaviour of the adult gives reason to believe that the child is at risk from an individual's conduct or communication and intervention at this earlier stage is necessary to protect the child.
31. Only the police would be able to make an application for a RSHO. An assessment process would need to be undertaken by the police who would need to consider the degree of risk that the individual poses at that time. It is suggested that, where appropriate, the assessment should be carried out in consultation with other relevant agencies, such as social work services and other child protection agencies. However, because a RSHO may be applied for against someone without a previous criminal conviction (unlike the other preventative orders) consideration may need to be given to using an external independent risk assessor.
32. The fact that it is the police who apply for the order would prevent them being used by parents trying to prevent their child having contact with, for example, an 18 year old boyfriend whom they consider unsuitable for their child.
Section 4 - Risk of Sexual Harm Order: Variations, Renewals and Discharges
33. Section 4 provides for variations, renewals and discharges of risk of sexual harm orders. Variations, renewals and discharges can be made on application to the sheriff court by the person to whom the order applies or a Chief Constable of the area in which the person resides or intends to move to. It would be open to a person to apply for a RSHO to be varied or discharged if the child concerned reached the age of 16.
Section 5 - Interim Risk of Sexual Harm Orders
34. This section allows the police to apply for an interim risk of sexual harm order where an application has been made for a full order in respect of an individual, but has not yet been determined. The interim order would be for a fixed period and would cease to have effect at the end of that period or, if earlier, when a decision is made on the full order.
Section 6 - Offence: Breach of Risk of Sexual Harm Order or Interim Risk of Sexual Harm Order
35. It would be a criminal offence to breach a risk of sexual harm order or interim risk of sexual harm order unless the accused has a reasonable excuse for doing so.
36. As a civil order, a RSHO may be disclosed under enhanced disclosure arrangements if a Chief Constable took the view that it was relevant to the post being applied for by an individual. We will consider further what other steps might need to be taken to ensure appropriate recording and disclosure in all relevant cases.
Sexual Offences Prevention Orders (SOPOs)
37. Sexual offences prevention orders (SOPOs) are civil preventative orders designed to protect the public from serious sexual harm. They were introduced in the Sexual Offences Act (2003).
38. SOPOs and interim SOPOs are intended to protect the public from the risks posed by sex offenders by placing restrictions on their behaviour. The SOPO and interim SOPO also require the offender to register their details to the police as set out in Part 2 of the Sexual Offences Act 2003. The SOPO updated, replaced and combined the sex offender order (introduced in the Crime and Disorder Act 1998).
39. In Scotland, a SOPO can at present only be made on application to a sheriff court by a Chief Constable in respect of a defender with a previous conviction for an offence listed in Schedule 3 or 5 of the Sexual Offences Act 2003. The court must be satisfied that an order is necessary to protect the public or an individual from serious sexual harm from the defender.
40. There may however, be occasions when it would be useful for a court to impose a SOPO when disposing of an offender, rather than requiring a Chief Constable to make an application for an order. The provisions contained in this Bill therefore will extend the power to impose a SOPO to a court when it deals with an accused following a conviction for an offence listed in Schedule 1 or a finding that he or she is not guilty of such an offence by reason of insanity or that he or she is under a disability but has done the act charged.
We plan to include within Schedule 1, as a trigger offence for consideration of a SOPO, any offence where the court determines that there is a significant sexual element in the offender's behaviour in committing the offence, as recommended in the report of the Expert Panel on Sex Offending "Reducing the Risk - Improving the Response to Sex Offending".
41. It is not necessary to apply to the court to make a SOPO at the point of sentence although the prosecutor may ask the court to consider making an order in appropriate cases.
42 In order to make a SOPO in this way, the court must form a view that the offender presents a risk of serious sexual harm to the public and that an order is necessary to provide protection from this. The evidence presented in the trial is likely to be a key factor in the formation of this judgement, together with the offender's previous convictions, of which the sheriff would have a copy. Courts may also ask Social Enquiry Report writers to consider the suitability of a SOPO on a non-prejudicial basis.
43. A SOPO, whether full or interim, can only contain restrictions on the behaviour of the offender. It cannot require the offender to comply with conditions requiring positive action other than the requirement to register under the Sexual Offences Act 2003 while the order is in effect. The minimum duration for a full order is five years - there is no upper limit.
44. Breach of a SOPO or an interim SOPO, without reasonable excuse, would be a criminal offence. An offender convicted of such an offence on summary conviction would be liable to a term of imprisonment of up to six months, or to a fine, or both; an offender convicted on indictment would be liable to a term of imprisonment of up to five years.
Questions on which responses are sought
Q1. Does the new offence set out in Section 1 of the attached draft Bill achieve the objective of ensuring that potential sex offenders meeting or travelling to meet a child following grooming behaviour can be prosecuted?
Q2. Does the new offence strike the right balance in criminalising activity which involves grooming and then meeting or travelling to meet a child? Or should other activities comprise the criminal offence?
Q3. Is the proposed penalty set at the right level?
Q4. Is 18 the right minimum age for the offender or should it be, for example, 16?
Q5. Would Risk of Sexual Harm Orders be a useful measure in preventing sex offences against children?
Q6. Does the proposed list of trigger behaviour cover all relevant activities that might prompt application for a RSHO?
Q7. Should the use of Sexual Offences Prevention Orders be extended to allow them to be imposed at time of sentencing?
Q8. Are there any other issues in relation to grooming a child for sexual exploitation that we should take into consideration in the proposed Bill?
All comments should be submitted to the following address by 24 September, 2004.
Protecting Children From Sexual Harm
Criminal Justice Division
St Andrew's House
Telephone: 0131-556 8400
Where confidentiality is not requested, copies of responses received will be placed in the Scottish Executive library and will be available to the general public. The view expressed by the respondents may also be quoted or referred to in any future review of responses. If you do not wish your responses to be made public, please ensure that you indicate clearly that all or part of your response is to be treated as confidential. We will still count confidential responses in any statistical analysis and your views will of course be taken into account in the same way as for non-confidential responses.
Electronic Publication and Additional Copies
Additional copies of this document are also available, on request, and in audio and large print formats from the above address. It can also be viewed on the Scottish Executive website at www.scotland.gov.uk.