Citation: Gillespie AA, 'Paedophiles and the Crime and Disorder Bill' [1998] 1 Web Journal of Current Legal Issues <http://webjcli.ncl.ac.uk/1998/issue1/gillespie1.html>

Paedophiles and the Crime and Disorder Bill

Alisdair A. Gillespie LL.B.(Hons)
of the Middle Temple.
M.Jur candidate, University of Durham.

Copyright  1998 Alisdair A. Gillespie. 
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary
The Government has announced its first major law and order Bill - the Crime and Disorder Bill (“the Bill”).  Parts of it will affect those convicted of sexual offences against children but how appropriate or useful are these measures?

In effect there are two aspects of the Bill which relate to paedophiles; that of the sex offender orders (clauses 2 to 4) and that of the extended licensing arrangements (clauses 46 and 47.)

Contents
Sex Offender Order 
Definition of Sex Offender 
Width of the Order 
Duration of the Order 
Sentence for Breach 
Court with Jurisdiction to make Order 
Extended Supervision 
Conclusions 

Bibliography

Sex Offender Order
Clause two of the Bill permits a chief officer of the police to apply to the Magistrates’ Court for a sex offender order if:-

(a) the subject is a sex offender; and
(b) the subject has acted in a way as to cause reasonable belief that an order is required to protect the public from harm.

Clauses 2(3) and 2(4) states that the order can prohibit the defendant from doing anything the court deems could cause serious harm to the public. Although the Bill makes reference to a sex offender what it actually means is a sex offence against children and this is so defined. (Clause 3(1))

There are a number of different aspects of this provision that need to be examined:

(1) Definition of a sex offender
(2) Wide definition of order
(3) Duration of the order
(4) Sentence for breach
(5) Court with jurisdiction to make order.

Definition of Sex Offender
The actual offences which make an offender a sex offender are those listed in Part I of the Sexual Offenders Act 1997. The 1997 Act provided the framework for a sex offender register where offenders who had committed a relevant offence against a minor would have to register their personal details with the local police station. Those who are defined as sexual offenders are those who:

(a) have been convicted of a relevant offence
(b) have been found not guilty of a relevant offence by reason of insanity or disability
(c) have been cautioned for a relevant offence
(d) have been convicted of a relevant offence outside of the UK. 

“Relevant offences” are defined in Schedule I of the 1997 Act. The main examples are rape, unlawful sexual intercourse with a girl under 13, unlawful sexual intercourse with a girl under 16, incest by a man, indecent assault and indecent conduct towards a child. For it to be a relevant offence it is necessary that the victim was under the age of 18.

Out of these groups the most controversial is that of people who have been cautioned. That the Sex Offenders Act 1997 applied to cautions was the subject of concern at that time (see for example Soothill et al 1997, pp 489 & 490) but it could be justified on the basis that there was no specific duty imposed (other than to register) and that given the rules relating to disclosure, (see R v North Wales Police, ex parte AB and another [1997] 3 WLR 724) it is unlikely that a caution would be disclosed to the general public.

The inclusion of cautions (and this must include the new final warning provisions) in this Bill must be questioned more strictly however. Although technically a caution is an admission of guilt, it differs greatly from a conviction by a court. It is well-known that for cautions generally there is a belief that it could be better to accept a caution than to go to trial, especially where media attention could cause serious harm; this is often true even if the suspect believes they are not-guilty but do not want the risk of being convicted.

A caution contains no punitive element because there has been no opportunity to test the evidence. Under the national standards for cautions (see Ashworth (1994) pp 140-144) when the caution is administered a person is warned that should they commit a like offence again within usually two years, that original act could be taken into account at sentencing, but that after that time the caution would lapse. This can no longer be true when a caution is administered for a child sexual offence and both the police and defence legal advisors should so warn an “offender”.

The offence of breaching an order, as will be seen, would mean that a person under the caution could be punished for acts that do not amount to an offence (save for the breach of the order) which seems contrary to the aims of a caution.

It is not unreasonable to foresee a situation where a caution and order become adjoined: that the grounds leading to a caution may also lead to an order being granted. The suspect causes an act that may lead to a charge but instead the police caution the offender and use the same grounds to obtain an order. This order can probably restrain the defendant’s liberty more than prosecuting the offender, especially where the act was very minor.

Width of the Order
Traditionally the law is deemed to be very precise and aims to fulfil set objectives: this is not the case with this Bill. By clause 2(3) the court “may make an order....which prohibits the defendant from doing anything described in that order”.  This is only slightly quantified by sub-clause 4 which states the purpose must be “protecting the public from serious harm from the defendant” which is still very vague.

An order which is potentially so wide can cause quite alarming problems although the judiciary will probably give guidance on what is acceptable. The order appears similar in principle to undertakings and injunctions where all orders are valid and enforceable until set aside by appeal or variance. Whereas an injunction or undertaking could be set aside by a High Court judge effectively at any time, a sex offender order can only be varied by a Magistrates Court or Crown Court on appeal. It is likely that the Crown Court would be constituted as it is now for appeals; ie a Crown Court judge and two Magistrates. This constitution means that it is likely that there will be considerable delay between the making of an order and the hearing of an appeal and that pending that appeal a breach could result in conviction regardless of how unfair the term was. This may lead to a number of applications for judicial review, circumventing the appeals procedure but possibly leading to a quicker response.

An order as wide as this Bill appears to allow could lead to some results that are perhaps inappropriate. For instance a court may decide to use an order to force a person to attend a counselling session. This may seem an attractive proposition at the time of making an order but is it realistic? There has long been a principle that the law should not set targets which they know will lead to failure. In an interview with the author, Roger Hill, Assistant Chief Probation Officer of Durham County Probation Service argued that forcing someone to take a rehabilitation/correction programme is unlikely to be welcomed by the professionals running the course. It is likely that someone forced onto such a course would resent it and as such would get nothing out of it and more likely than not this would lead to a disruption of other students.

Restraining orders are new to this country but other jurisdictions have their own version, most notably Canada and Australia. (Two countries whose legal systems still have similarities to our own). The Canadian order is contained in Section 161 of the Criminal Code and states that when a person is sentenced for an offence relating to a child, or when that person is discharged from a probation order that court may make an order prohibiting an offender from:-

(i) attending a public park or public swimming area where persons under the age of 14 are present or could reasonably be expected to be present
(ii) seeking, obtaining or continuing any employment or voluntary position which involves children under the age of 14.

South Australia has its own order (a “paedophile restraining order”) under
section 99AA of the Summary Procedure Act 1921. The order may be made if the defendant has been loitering around children and the defendant has within the previous five years been convicted or released from imprisonment for a child sexual offence. The order restrains the defendant from:

(i) loitering in the vicinity of a school, public toilet or place at which children are regularly present; and
(ii) children are present at that place at the time of the loitering.

Both orders achieve the same result: it prevents the subject from attending places where children are present; this is what the politicians have stated the British version is designed to do (see Home Office Press Release 309/97) but, it is submitted, the Canadian and Australian orders are more certain. Where the penalty for a breach is quite considerable it is argued that certainty is essential.

Some may argue that, by not listing the exact specifics of an order, a greater flexibility as to where a person can be barred from arises.  Yet, the Australian model seems to manage this flexibility by stating “place at which children are regularly present”, though, appropriately both the Canadian and Australian have the requirement that children are actually present, something the order proposed in the Bill does not contain. Barring someone from a local park may seem reasonable but there are circumstances when he may need to enter it and there seems no reason why he should not be permitted to enter the park during the morning or during the day when children should be at school.

Duration of the Order
An order under the Bill appears to have no upper time limit but there is a minimum duration of five years. (Clause 2(5)) The only exception to this minimum is by consent of both parties. (ie the Chief of Police and the Defendant).

Both the Canadian and Australian orders appear to have no upper time limit either and so long as the order is certain and reasonable there would appear no reason why an order should not last for an indefinite period of time in exceptional circumstances. The key problem is a caution. A caution usually becomes lapsed after a couple of years and yet this order would last for a minimum of five years and so a situation would arise that the caution would ordinarily lapse, the duty to register under the 1997 Act would ordinarily have lapsed or be about to lapse, (although the making of the order extends this duty) and yet this order could effectively extend the caution for an indefinite period but not less than five years.

Sentence for Breach
The Bill would appear to create an either-way offence for a breach. Conviction on a summary trial carries a sentence of the maximum level of fine and/or six months’ imprisonment. Conviction on indictment carries a sentence of up to five years’ imprisonment and as such it is clear that breach would be considered a serious matter. The order is designed to protect the public and accordingly a sentence such as that proposed is certainly justified although this shows the absolute need for certainty in the actual order.

Court with Jurisdiction to make Order
Under the Bill only the Magistrates Court has jurisdiction to make an order (save for an appellate court) yet the penalty for breach is triable either way. The Government is presumably utilising the Magistrates Court to save time and money but is the Magistrates Court an appropriate venue?

Magistrates have very limited experience of restraining orders: the orders being proposed appear to be very similar to injunctions and undertakings and with respect to the Magistracy it is likely that the professional judiciary would be more experienced in these matters and would know the boundaries of orders. Utilising members of the judiciary would probably lead to more consistency; accusations of inconsistency having  long been levied at Magistrates. (See Derbyshire 1991, p 746 and the comments of Michael Mansfield QC and Geoffrey Robertson QC in Derbyshire 1997, p 861) The need for certainty and consistency is even more apparent when the scope of the order is so wide.

Most offenders charged with sexual offences against children are tried in the Crown Court. Rape, Unlawful Sexual Intercourse with a Girl under 13 and Incest are triable only on indictment and the remaining offences are triable either-way where the suspect usually elect trial by jury, or the Magistrates decline jurisdiction. (Following the principles set down in the National Mode of Trial Guidelines - Practice Note (Mode of Trial: Guidelines) [1990] 1 WLR 1439 where a vulnerable victim (eg a child) is a factor which should contribute towards a decision by magistrates to decline jurisdiction.) With the recent introduction of the transfer for trial provisions for offences involving child victims (see section 53, Criminal Justice Act 1991) Magistrates are not involved in committal proceedings. As such it is highly unlikely that Magistrates will have experience of the people or crimes that lead up to the application for an order.

Extended Supervision
The other main impact the Bill will have on child sex offenders is the extended license provisions which is being proposed. Such extensions are long over-due and should be of great benefit.

By clause 46 the extended licence applies to any sexual offence and this includes offences against children. The extension is made at the time of the sentence for the offence. The grounds for such an extension is that the license is needed to “prevent the commission by [the defendant] of further offences and securing his rehabilitation.” The licence extension cannot be longer than ten years for a sexual offence nor could the extension take the sentence passed above the statutory maximum. (eg Where the maximum sentence is 5 years and a custodial sentence of 3 years is imposed, the extension can not be for more than 2 years) The extension comes into effect at the end of the usual licence.

This could cause situations where the extension is of no help at all. If one takes as an example an offender who consistently has sexual intercourse with girls under 16. The maximum sentence for this is two years imprisonment and so a court for a repeat offender may will impose the full sentence and as such there would be no extension as the existing licence will cover the full period. This is where the sexual offender orders may become of use. As drafted in the Bill the order could conceivably direct the offender from being alone with a girl under 16 and as such the next time he did so he would be in breach of the order which attracts a longer sentence than unlawful sexual intercourse. This may seem advantageous but the ethics of circumventing Parliament’s intentions would be highly questionable.

Although extended supervision will cost money because it will lead to more meetings with the probation service (and possibly more officers) it is suggested that the scheme would be more effective if the provision limiting the extension to that of a “top-up” provision was abolished, allowing a court to add an extension period of up to ten years notwithstanding the fact that it would take the sentence beyond the maximum. The reason for this suggestion is that it would be more beneficial for an offender to be under supervision than an order under clause two, as one of the aims of a licence is to help a person rehabilitate whereas it is doubtful that a sex offender order will have any rehabilitative effect.

Conclusions
The Crime and Disorder Bill does make an effort to introduce some dramatically needed changes to the Criminal Justice System in relation to child sexual offences but it is submitted that the format proposed could cause considerable problems.

An initial area of concern is the inclusion of cautions in the orders. If the police and CPS are concerned about an individual then a prosecution should be brought. An order under clause 2 will restrict the liberty of the subject and such restrictions should be limited to convictions where the evidence has been tested by a court or the defendant has had the right to do so. A caution is, and always has been, different from a conviction and as such it should be treated differently.

The sex offender order is also too widely drafted: theoretically just about anything could be banned under the order and this will lead to a flurry of cases until the scope is limited by the judiciary. That this will happen is inevitable and it would therefore be advantageous to put such limits in the primary legislation. The intended use of the orders, as described by politicians, encapsulates everything contained in the Canadian and Australian versions of the orders, and Parliament should examine whether the provisions contained in these alternatives should replace the provisions currently being proposed.

Closing the wide definition becomes even more essential if the making of orders is going to be left to Magistrates. Although Magistrates have become increasingly trained, their experience is not comparable to that of the professional judiciary who are used to restraining orders (ie injunctions or undertakings) and dealing with these types of offenders, and so consideration should be given to direct the applications to the Crown Court.

The extended licence procedures are to be welcomed although their period of extension should be widened so as to allow a combined sentence above the statutory maximum.  This would become particularly useful for offences where the sentence of imprisonment could become close to that of the statutory maximum where no real benefit would accrue.

If the extended license arrangements are used properly it is likely that the sexual restraint orders will not be needed that frequently. Supervision would allow programmes such as rehabilitation and correction to be run.  It would also take into account the needs of the offender in a way which would help him. It is unlikely that a restraint order would be anything other than punitive.

Bibliography

Derbyshire, P. (1991) ‘The Lamp That Shows That Freedom Lives - Is it Worth the Candle?’ Criminal Law Review 740.

Derbyshire P. (1997) ‘For the New Lord Chancellor - Some Causes for Concern About Magistrates’ Criminal Law Review 861.

Soothill K., Francis B, Sanderson B., ‘A Cautionary Tale: the Sex Offenders Act 1997, the Police and Cautions’ Criminal Law Review 482.

Ashworth A, (1994) The Criminal Process: an Evaluative Study (Clarendon Press: Oxford).

Home Office (1997) ‘New Powers to Protect the Public from Sex Offenders’, Press Release 309/97.