The Scottish Government

« Previous | Contents | Next »

Listen

PROTECTING CHILDREN FROM SEXUAL HARM: ANALYSIS OF CONSULTATION RESPONSES

CHAPTER 4: RISK OF SEXUAL HARM ORDERS

The consultation stated:

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;
• Communicating with a child where any part of the communication is sexual.

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…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.

The consultation asked:

Q5: WOULD RISK OF SEXUAL HARM ORDERS BE A USEFUL MEASURE IN PREVENTING SEX OFFENCES AGAINST CHILDREN?

Almost all (90%) of respondents addressed this question. In general, consultees did not present a clear "yes or no" response but tended to provide broader commentary regarding the merits and possible drawbacks of the proposal, as well as raising issues on which further clarification was sought.

Perceived Benefits of RSHOs

Many respondents highlighted what they perceived to be the potential benefits of RSHOs. Such orders were seen as providing the opportunity for early arrestment of risky behaviour before sex offending has occurred (3 LA, Vol, Leg). The orders may provide a deterrent for would-be offenders (LA) and could add support to a child protection plan (LA). They had the flexibility to include a condition of undertaking treatment to address the individual's behaviour (LA) and were seen as providing the police with meaningful, preventive powers (LA).

Several consultees stressed that sex offending could be relatively difficult to prosecute and the RSHO could provide a means of dealing with individuals who had avoided prosecution but whose behaviour was causing concern due to the risk they posed to children (2 LA, Vol, Oth Pub). Suggestions were made that the RSHO could be placed on an individual whilst their case was awaiting prosecution (LA), could be used for those who had been dealt with by the Children's Hearing system (LA) or for those under 18 who posed a significant threat (LA).

Other advantages were seen as aiding teachers, youth workers and parents in explaining to children the risks posed by internet use (LA); as promoting the sharing of case information across relevant agencies (LA); and the possibility that the existence of the order may encourage more young people to disclose details of inappropriate sexual conduct by adults (LA).

The proposal to incorporate an external assessor into the framework was welcomed (LA) although one comment was that use of such an assessor should be for the individual's lawyer to determine (LA). One respondent called for greater clarity on the external assessment proposal and suggested that it may result in increased legal aid costs (Leg).

Concerns Regarding Use of the Order in Practice

Despite such support in principle, many consultees expressed concern regarding its use in practice. The issue raised most frequently in this regard was the need to tighten the drafting of the proposal in order to avoid inadvertently including parents, teachers and sexual health workers, going about their legitimate business, in the category of individuals qualifying for an RSHO. One typical comment was that the Scottish Executive should pre-empt misinformation and misunderstanding around the current legislation to ensure that it does not undermine the ability of Scottish schools and other services to provide needs based sexual health and relationships education and promote good sexual health (Vol). Another was:

" We have to protect our voluntary workers from having to go through the disturbing experience of a wrongful accusation that has arisen out of some misunderstanding or misrepresentation of an event" (Faith)

Another recurring theme was potential legal challenges to the use of the order. Several respondents suggested that the deployment of the order for individuals who have not been convicted may have Human Rights implications (Educ, 2 LA, Leg, 2 Vol) especially where conditions of receiving treatment are attached to the order (LA). One respondent (Educ) highlighted Article 6 of the Human Rights Act, the right to a fair trial, and Article 7, not to be punished without recourse to the law in this regard. Interestingly, despite such concerns, there was agreement that the rights of the child should take priority over those of adults in this context (3 LA). One final concern over legalities was that the proposals appeared to have a retrospective effect in that conduct taking place prior to the commencement of the Act could be taken into account in a decision over the placing of a RSHO (Leg).

Other issues raised included the caution that RSHOs should not be used as an alternative to prosecuting an offender (2 LA, Educ, Vol). One remark was that if the behaviour was sufficiently serious then the case should proceed to a prosecution (LA). Another respondent warned against use of the order becoming excessive and not matched by an appropriate volume of prosecutions, in other words, " it may become too easy to impose an RSHO" (Educ). Questions were raised about how the new order would fit in with existing child protection legislation (LA, Leg). It was argued that strict protocols would need to be established to ensure criminal proceedings were given priority and evidence used to support an RSHO should not be contaminated prior to any subsequent criminal prosecution (Leg).

General criticisms of the proposal included the argument that the order appeared too vague and unworkable (Vol). It appeared to sit at odds with the well established premise that a person has the right to be presumed innocent until proven guilty (Vol). It could be credible only if breaches of the order could be detected (Leg) and adequate resourcing given to its policing (3 LA). The police were invited by one respondent to specify the resources they would require to undertake such work (Vol). One view was that the order was not likely to work without 24 hour surveillance (Oth Pub). Others highlighted the need for high quality educative programmes to be available for those subject to an order (LA, Vol). A further view was that imposing an RSHO rather than proceeding to prosecution could cause a victim further pain and distress and possibly put others at risk (Vol).

Many respondents reflected that the preparation of a case for the imposition of an RSHO would require inter-agency work (4 LA, Vol, Leg). Calls were made for a robust risk assessment tool for use by the police and others in the criminal justice system (2 LA). One comment was that in order to successfully obtain an order, evidence would need to be robust, detailed and accurate (Vol). This respondent suggested that lessons could be learned from the use of interim interdicts. A concern was raised over the robustness of the evidence base and standard of proof required to secure an RSHO (Vol) and it was stressed by one consultee that Chief Constables should always consult with Social Workers prior to an RSHO application and at any review stage (LA). The proposal that previous conduct can be used in evidence was perceived as helpful (LA), however difficulties were predicted in cases where the individual is not already known to the social work and criminal justice services or where the person refuses to co-operate in giving information (2 LA).

Requests for Clarification

Respondents raised a substantial number of questions regarding the proposed RSHO. These are summarised below:

• Who will be responsible for monitoring the order? (2 LA, Educ, 2 Vol)
• How will the order be enforced? (2 LA, Vol)
• Would a person be informed of the commencement of the procedure to impose an RSHO and what provision will be made for them to challenge the order? (Faith, LA, Leg)
• Will potential employers and service providers be informed that/able to find out if an individual is/has been subject to an order? (Vol, 2 LA, Faith). It was recommended that names of those in receipt of the order be placed on appropriate lists and registers so that potential employers can be made aware of their background (LA, Faith)
• At what level of disclosure will the order be relevant? Most respondents who commented recommended enhanced level (5 LA, Vol) although one recommended standard level too (LA).
• What would be the procedure on release from prison for breach of the order (LA)? Would the order continue (LA)? Concerns were raised that the individual may disappear without trace as, without a conviction for sex offending, they would not have to inform the police of their address (LA).
• What will happen on expiry of the order? Will any children who were involved be informed? (Vol)

Age at which an RSHO can be Applied

Several consultees provided their view on the age at which an individual should qualify for an application for an RSHO. Opinions were mixed and whilst most recommended a reduction in age to 16 years (Pol, 2 LA, Leg), one respondent argued for the minimum age to be increased to 21 years (Oth Pub). A further view was for the order to be applicable to "any person" rather than specify a particular age limit (Pol).

The consultation asked:

Q6: DOES THE PROPOSED LIST OF TRIGGER BEHAVIOUR COVER ALL RELEVANT ACTIVITIES THAT MIGHT PROMPT APPLICATION FOR A RSHO?

Fifty-one (72%) respondents provided some response to this question. Around half (49%) of these considered that the proposed list appeared to cover all relevant activities although 2 consultees suggested that more may be added to the list as lessons are learned from experience (Indiv, Leg). One respondent remarked that the list as it currently stood seemed to balance the protection of children with the protection of adults' civil liberties (Oth Pub). According to this consultee, any broadening of the list could lead to an increased risk of miscarriage of justice.

Twelve respondents (24% of those who commented) made a suggestion for expanding the list of relevant activities. Their recommendations were:

• The list should incorporate all forms of contact by mobile phone including SMS, MMS, WAP. Also, requests by the adult for personal items both new and old should be included (Indiv)
• Could add a reference to the Schedule, Part 1 and insert the words, "..and in addition any behaviour or activity which may constitute one or more of the crimes detailed in the Schedule of Part 1 of this Act" (2 Pol)
• Should include one activity designed as a "catch all" - so general as to cover any form of activity which includes children and a significant sexual element. For example, in its present form the proposal might seem that the triggers involve awareness by the child of the adult's actions but this may not be the case. The wording should be constructed so as to capture all inappropriate behaviour which is sexual and included children as a stimulus to sexual gratification of adults (LA)
• The list should include reference to text messages (2 LA)
• The list should include gifts (Pol)
• Perhaps should include blackmailing, threatening behaviours and making specific promises (Educ)
• The list is too restrictive and may need to include other behaviour that could be construed by reasonable people as being a precursor to sexual contact. More open interpretation is required. Triggers could include evidence from intelligence that an individual has the potential to sexually offend against children, eg. individuals who have in the course of therapy shown a desire or need to sexually offend against children (LA)
• Add to the list activities including the adoption of a false identity and lies regarding age (Vol)
• Include violent or aggressive images which could also have a sexual connotation (LA)
• Include the new grooming offence in the list of acts which trigger an application for an RSHO (Leg)

Concerns Regarding the "Trigger" Activities

A recurring comment was to challenge the proposed requirement that prior to an RSHO application, sexual behaviour would need to have taken place on at least 2 occasions (6 LA, Pol, Faith). One respondent remarked that this requirement, whilst strengthening a case against the adult, would do nothing to prevent "one-off" exchanges with different children (LA).

Much of the previous commentary regarding the danger of inadvertently capturing legitimate adult behaviour within the net of trigger activities was repeated. One respondent called for tighter guidance on the proposed activities to make them less ambiguous and therefore less likely to put innocent adults through investigations which may cause irreversible damage to them and their professional reputation (Oth Pub).

One consultee expressed concern that the trigger activities would not be sufficient to pick up on early stages of grooming behaviour (LA). Another predicted difficulties created by differences in what people perceived to be "acceptable" behaviour (Oth Pub). One view was that the definition of "sexually explicit" could be problematic and that any behaviour which is of a sexual nature could be deemed sufficient to allow for an application for an order (LA).

Requests for Clarification

A few respondents sought clarification on issues raised in the proposals. One respondent suggested that "communicate with" could perhaps be clarified to demonstrate that it included conventional forms of communication such as telephone and letter (LA). Another recommended that reference to sexual images should make clear that this relates to humans and should therefore not criminalise a family watching a wildlife programme in which animals are mating (Indiv).

Finally, a request was made for clarity regarding the mechanisms by which agencies other than the police could initiate a response to trigger behaviours (LA).

« Previous | Contents | Next »