Baroness Stowell of Beeston
Main Page: Baroness Stowell of Beeston (Conservative - Life peer)Sexual Offences Act 2003 (Remedial) Order 2012
Baroness Stowell of Beeston Excerpts
Baroness Stowell of Beeston
That the draft order laid before the House on 5 March be approved.
Relevant documents: 19th Report from the Human Rights Committee, Session 2010–12; 1st Report from the Human Rights Committee.
Baroness Stowell of Beeston
My Lords, the purpose of this debate is to consider the two statutory instruments laid in draft before the House by the Government under, or in relation to, the Sexual Offences Act 2003. The first is the Sexual Offences Act 2003 (Remedial) Order 2012, which sets out the Government’s response to the Supreme Court ruling in F and Thompson. The second is a set of regulations that will strengthen the notification requirements for registered sex offenders. This follows a public consultation carried out last summer by the Government. I shall address each instrument in turn.
Currently, where a sex offender is sentenced to imprisonment for a term of 30 months or more under Part 2 of the Sexual Offences Act 2003, they will be subject to indefinite notification requirements for life, with no possibility of a review. In other words, on completion on his prison sentence a serious sex offender is placed on what is commonly known as the sex offenders register for life. On 21 April 2010 the United Kingdom Supreme Court made a declaration, following an appeal to it made by claimants known as F and Thompson, that the requirement for indefinite notification—also known as life on the sexual offenders register—with no opportunity for review is incompatible with Article 8 of the European Convention on Human Rights, which concerns the right to a private life and family life. To put it another way, the Supreme Court ruled that if a person is included on the sex offenders register for life, they should at some point during their lifetime have the right to request that their inclusion on the sex offenders register be reviewed. I stress the word “reviewed”. They have a right to request a review, not a right to be removed from that register.
Our constitutional arrangements are such that when the highest court of the land identifies an incompatibility with the European Convention on Human Rights, the Government of the day, whoever is in power, take remedial action. This is for various reasons, not the least of which is to ensure that the Government are not left vulnerable to further legal proceedings, potentially involving millions of pounds of taxpayers’ money. All that said, in February last year the Home Secretary and the Prime Minister made it clear that the Government would do only what was necessary to remedy the incompatibility declared by the court.
When considering the Supreme Court’s decision, the Government, in deciding what action to take, wanted to ensure that we struck the right balance: putting public protection first and foremost while acknowledging that these offenders also have a right to request a review of the length of time that they spend on the sex offenders register. This approach was reflected in the Government’s initial proposal to make a remedial order to remove the incompatibility, which was laid before this House on 14 June last year. The Joint Committee on Human Rights considered our proposal and published its recommendations in its first report on 13 October last year. Its most significant recommendation was that, in order to ensure a sufficiently independent element to the review process, our proposal should be amended to provide either that the review be conducted by,
“an independent and impartial tribunal”,
by which it meant the courts, or that there be a,
“right of appeal from the decision of the police to an independent and impartial tribunal”,
by which again it meant the courts.
We were grateful to the JCHR for its report, which we considered in detail. As I have said, the Government have been clear throughout that, in removing the incompatibility, public safety remains the first priority. After careful consideration, the Government decided not to accept the JCHR’s recommendation that the review be led by the courts. The Government remain of the view that the police are best placed to carry out the initial assessment of the level of risk posed by the offender, in conjunction with other bodies through the Multi Agency Public Protection Arrangements, otherwise known as MAPPA. We did, however, accept that it was proportionate to amend the remedial order to allow for the provision for a right of appeal from the police decision to the magistrates’ court. After amending the remedial order to include the provision for a right of appeal to the magistrates’ court, the Joint Committee on Human Rights published its second report in May this year. We are pleased that the Joint Committee accepts in this report that our proposal now remedies the incompatibility identified in the Supreme Court’s ruling.
I shall take a moment to explain how the order will work in practice. As I have already said, it applies to individuals who are subject to notification requirements for life, under the 2003 Act. This means, in most cases, those who have committed the most serious offences listed in Schedule 3 to the 2003 Act, which include, for example, rape and sexual activities involving children.
Let me be clear. Offenders will continue to be placed on the sex offenders register for life, just as they are now. They will not come off the register automatically. The remedial order only provides a mechanism by which a sex offender can apply for a police review of whether they should cease to be on the register. The onus is always on the offender to make the application and to demonstrate that they no longer pose a risk. This means that an offender will be required to submit an application to the police seeking a review of their indefinite notification requirements. This will be only once a fixed period of time has elapsed following the offender’s release from custody. For adults, we have proposed that this period of time will be 15 years; for a child it will be eight years.
We know that if an offender is to re-offend after completing their prison sentence, it is in the early years of release when it is most likely that that will happen, the majority of these taking place within 10 years of release. That is why our proposal ensures that no adult sex offender will be able to apply for a review until 15 years after they have been released from custody. That will be their first opportunity.
This remedial order ensures that a robust review, led by the police, in conjunction with other agencies, will be carried out so that a full picture of the risks to the public can be considered before any decision is made on whether to remove an offender from the register. Let me be absolutely clear. Our proposals make sure that sex offenders who continue to pose a risk will remain on the register and will do so for life if necessary.
The second instrument that we are considering today follows a consultation carried out last year on options for strengthening the notification requirements applying to registered sex offenders. Currently, when a person is convicted, or cautioned for an offence under Schedule 3 to the Sexual Offences Act 2003, they will automatically be subject to notification requirements, which, as I stated earlier, is more commonly referred to as the sex offenders register. While subject to these requirements, the offender will be required to provide their local police station with personal details annually, or whenever their details change. The most high-risk offenders are subject to additional further conditions and surveillance by local multi-agency public protection panels.
The police identified vulnerable areas in the current arrangements which could lead to some offenders seeking to exploit gaps in the system. To strengthen and extend current checks, this instrument makes four changes to the current notification requirements which apply to all registered sex offenders. First, they must now notify the police of all foreign travel. Offenders who travel abroad for less than three days will be required to notify in the same way as those who travel for longer must do under the existing regime. Secondly, offenders with no fixed abode must notify the police weekly of where they can be found. Thirdly, offenders must from now on notify the police when they are residing with a child under the age of 18. Finally, offenders must notify the police about their bank account and credit card details and notify certain information about their passports or other identity documents at each notification, thus tightening the rules so that sex offenders can no longer seek to avoid being on the register by changing their name.
ACPO and CEOP have both expressed their support for these changes. They believe that these measures will enhance our ability to protect the public and ensure that our management of sex offenders remains effective in an ever-changing world. In the event that an offender fails to comply with the notification requirements or with the terms of any order restricting their movement or actions, they will have committed a criminal offence and can be imprisoned for up to five years.
In taking these changes forward, ACPO recognises that there will be resource implications to informing the 53,500 registered sex offenders across England and Wales who are subject to these new requirements, and to ensuring that they are all complying with the new requirements when these come into effect. ACPO has been clear throughout that, in calling for these additional changes, it was prepared to meet the additional workload. My officials have been working with ACPO for some months now to help it in its preparations.
Public protection remains a fundamental priority for this Government. The changes made in these two instruments address the incompatibility identified by the Supreme Court but they do so in a way that ensures public protection against these offenders. We have also closed a number of loopholes identified by the police in respect of all sex offenders. These changes mean that we continue to have one of the most rigorous and robust approaches to sex offender management in the world. I beg to move.
Baroness Stowell of Beeston
My Lords, this is a serious issue that needs to be dealt with sensitively. I am grateful for all contributions of noble Lords to the debate. In particular I am grateful to the noble Lord, Lord Lester, for confirming the JCHR’s agreement that this remedial order is compatible, and for the remarks he made about the process.
First, it may be worth repeating some of the things I said to make clear a couple of points before I respond to questions raised and points made in this debate. The crucial point is that convicted sex offenders who have been sentenced to two and a half years or more will still automatically be placed on the sex offenders register for life. This remedial order does not change that. The ruling that led to the order came from the UK Supreme Court. In response to some of the remarks of the noble Baroness, Lady Smith of Basildon, it is worth making it clear that every UK court in the land that heard the claim found in the same way as the Supreme Court before it came out with its final ruling.
As I said, the incompatibility that was found was around the right to a review, not the right to be removed from the sex offenders register. I can see why some listening to the debate—not the noble Baroness—might have misunderstood that. The Government were disappointed with the UK Supreme Court’s ruling, but we take our responsibility to uphold the law seriously, and that includes human rights law. That is why, in deciding how best to respond to the Supreme Court, we put at the front of our consideration the rights of the law-abiding, those who have the right to live without fear of predatory sex offenders.
In line with the comments of the noble Lord, Lord Lester, I was a little surprised at some of the points made by the noble Baroness, Lady Smith. The last Government established the UK Supreme Court and enshrined the European Convention on Human Rights in UK law via the Human Rights Act 1998. That marked a change to our constitution which I am sure that her party would point to as a big step forward. But the other reason I was surprised at her remarks was because, after the Statement that has already been referred to was repeated in this House, her noble friend Lord Hunt of Kings Heath, who is very distinguished, described in an Oral Question he tabled on 17 March 2011 the ruling of the Supreme Court as “eminently reasonable”.
Referring not just to the comments that have been made in the Chamber today but speaking more broadly, none of us likes to be told that those who have done wrong also have rights. I certainly respect people’s anger and disappointment when they first learn about rulings which they feel will entitle people who they think of first and foremost as evil—the word used by the noble Lord, Lord Lester—to rights. However, a responsible Government have a responsibility to respond to that disappointment and anger with a proportionate way forward which meets people’s concerns, and that is what we are doing.
I turn now to some of the specific points that were raised and the questions put. The noble Baroness, Lady Smith, talked about inconsistency. As I have made clear on this remedial order to do with the sex offenders register, every UK court rejected the claim. I am sorry; I will start again by referring to prisoner voting rights, which she used to illustrate her claim of inconsistency. I have already said that every court in this land found in the same way as the UK Supreme Court with regard to the sex offenders register. On prisoner voting rights, every UK court that heard the claim that prisoners should have the right to vote rejected it. The only court that has found in favour of prisoners being given the right to vote is the European Court of Human Rights. There is a distinct difference and we are responding to the UK Supreme Court at this time.
The noble Baroness made several points about the risks associated with offenders having a right to appeal to be taken off the sex offenders register. Perhaps I may cover several issues. The first thing to make clear is that, so far as this process is concerned, the onus is on the offender to come forward and make an application. The offender has to decide that they want to make the application: it will not be done for them automatically. In doing so, they must make clear to the police why they feel they have changed in a way that makes them a suitable candidate for review. In considering their response, the police will naturally consult the other agencies involved when someone is placed on the sex offenders register and will take time to consider each case on its merits.
The noble Baroness, Lady Hamwee, asked about the rank of the officer who would consider this process: perhaps the noble Baroness, Lady Smith, did as well. I can confirm that the review will be carried out by a superintendent. That will be made clear in the statutory guidance on the review of indefinite notification requirements under Part 2 of the Sexual Offences Act, which we will publish once the order comes into force. This will stipulate that the determination as to whether an offender comes off the register or not will be made by an officer ranked at superintendent or above.
The other important point relates in a way to the other statutory instrument being debated, and I will talk about that in more detail in a moment. Sex offenders who are on the register are categorised in different ways and are subject to a great deal of scrutiny and surveillance. This is not something that will be considered in isolation.
The noble Baroness, Lady Smith, asked about what happens if an offender who had come off the register offends again. First, any failure to comply with the register is in itself an offence. Secondly, if the situation she described were to happen, the offender would be reconvicted and sentenced according to the crime they had committed. They would again be subject to notification requirements. There is no question whatever that an offender who has committed a crime will not be required to operate within the terms of the sex offenders register.
Baroness Smith of Basildon
The point I was trying to get at was whether someone who had been on the register as a convicted sex offender and had come off the register but was then convicted of a further sexual offence—but not one that would normally put them back on the register—would be put back on the register automatically.
Baroness Stowell of Beeston
I can follow up in writing if necessary, but these kinds of cases would be considered on their individual merits. If somebody had been on the sex offenders register for life, had succeeded in making an application for review and coming off the register, then committed a crime which would not automatically put them back on the register for life, then I would expect that the authority that made the decision to place them on the register would consider the fact that they were previously on the register for life. Someone who was put on the register for life and is then successful in having their case reviewed and comes off it will have done something which would, had the police known that they were about to do it, have disqualified them from coming off the register in the first place. Anything contrary to that would be surprising to me. If I need to do so, I will follow up in writing, but such a situation would not make a great deal of sense.
The noble Baroness asked about why we had determined 15 years as an appropriate time for an offender to make an application for review. I think that I covered that carefully in my opening speech by explaining that the evidence suggests that a sex offender, if they are likely to reoffend, will do so in the first few years following their release from prison. The longer the period that has elapsed after their release is, the less likely it is that they will reoffend. As the noble Baroness pointed out, the available evidence suggests that there is no specific scientific point at which it can be absolutely guaranteed that someone will not reoffend, but if there is any suggestion that they might do so, they would not be successful in being removed from the sex offenders register in the first place when they made their application for review. We are talking about 15 years after this person has been released from prison.
Lord Lester of Herne Hill
To be helpful, perhaps I may make another practical suggestion. I forgot to say that in its latest report the Joint Committee on Human Rights asked seven questions for clarification, all of which have been clarified by the Equalities Minister Lynne Featherstone in her letter of 15 June 2012 to the Joint Committee. They are important issues and, rather than trying to get them on the record here, it would be sensible if the letter I referred to or some other letter were copied to those who have taken part in the debate, put in the Library and made part of the public record. I do not want the Minister to have to face yet further questions tonight, given that it has all been dealt with satisfactorily but not widely read.
Baroness Stowell of Beeston
I am grateful to my noble friends. If that solution is satisfactory to the noble Baroness, Lady Smith, that is what I will do.
Let me see if I can make some progress in responding to some of the other important points raised in the debate. The noble Baroness, Lady Smith, raised issues about costs. The straightforward point is that we have developed this policy in complete and full consultation with ACPO, which understands the need to respond to the Supreme Court ruling. There is no additional money available, but ACPO is confident that the aims can be met from existing resources. To return to a point made earlier, we have found it necessary for us to address this incompatibility, and that is what we are doing. It is worth adding that there is no option for the Government to appeal to the European Court of Human Rights against a ruling by the UK’s Supreme Court. This is a finding by the UK Supreme Court. I have described as carefully as I can that we have acted in a way that will address its findings, but in a way that is also mindful of the rights of law-abiding citizens who have every right to be protected from predatory sex offenders. I think those were the main issues raised by the noble Baroness.
My noble friend Lady Hamwee asked why we had taken the course of a remedial order as opposed to primary legislation. My noble friend Lord Lester answered that quite comprehensively, so I will not repeat all that he said. As for my noble friend Lady Hamwee’s concerns about the police leading on this review as opposed to the courts, I have already acknowledged that this has been a point of debate with the JCHR, which has now found that our proposals are compatible. None the less, it is worth stating clearly that we firmly believe that the police are in the best place to carry out this review and to consider an application from an offender on the register. They are familiar with the issues locally and will continue to work closely with the other agencies who are all working hard to ensure the protection of people in their area.
My noble friend asked whether the offender would get an oral hearing. My understanding—and if I am incorrect I shall, of course, write to her—is that they will not get an oral hearing with the police; they will put forward their application and the police will make a decision. However, they have the right to appeal that decision to the magistrates’ court. The noble Baroness also made the point that she expected all offenders to seek a review of their place on the register. In response, I remind the noble Baroness that they are not entitled to do so until they have been on the register for 15 years after their conviction. So even if that was to be the case—and I am sure that many offenders will recognise that their application may not be successful anyway, which might dissuade them from putting themselves forward for a review—they will not all put themselves forward at the same time.
As to the other order before us and the various questions raised, primarily, by the noble Baroness, Lady Smith, about the notification requirements, she asked about consistency with the devolved Administrations. I will restate that this is a devolved matter and Scotland and Northern Ireland are able to reach their own decisions. However, we are liaising closely with the devolved Administrations and ensuring that we seek alignment between the systems of notification. Northern Ireland is taking steps to change the law and we are liaising directly to ensure as much consistency as possible, particularly on this issue of three days, as the noble Baroness raised. As to European Union countries, we took into account aspects of their review mechanisms. In our view the UK very much leads in sex offender management, but we have taken any action that is taken in other countries which we think is appropriate. However, we would rather ensure that our action is consistent with our own standards, to be at the forefront of this matter.
Before I close, perhaps I may respond to the noble Baroness’s comments about online identities. It is already a requirement for all offenders to notify the police of any alias that they use. None the less, the crimes to which she referred are very serious. I would prefer to respond to her separately on the matter of online identities, but the noble Baroness has given me the opportunity in raising it to say that a range of tools is available to the police to manage dangerous offenders, including sexual offences prevention orders, or SOPOs, which are intended to protect the public from the risk posed by sex offenders by placing restrictions on their behaviour. These orders can be made on application to a magistrates’ court. If somebody on the sex offenders register is doing something which gives rise to suspicion that they are about to commit a crime, it is possible for the police to get the necessary authority for them to take action. I wanted to take this opportunity to make that point because there is a risk when we talk, as we have today, exclusively about the sex offenders register that the public might be given the impression that the register is the only way in which we manage sex offenders. It is not—there is a comprehensive set of arrangements.
The Sexual Offences Act 2003 is important legislation that provides police and other agencies with essential tools and powers to ensure that they can effectively manage offenders who pose a risk to the public. I am proud to say that the United Kingdom has one of the most robust sex offender management systems in the world and these changes will ensure that it continues to do so. I commend the order to the House.