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Plenary, 17 Mar 2005

17 Mar 2005 · S2 · Plenary

Item of business

Protection of Children and Prevention of Sexual Offences (Scotland) Bill: Stage 1

Grahame, Christine SNP South of Scotland Watch on SPTV

This is tricky legislation to get right. The definition in section 1 uses the phrase "having met or communicated", but it seems to me that the debate is circling around electronic communications, such as the internet and mobile phones. I wonder whether it would have been appropriate to use the phrase "for example, but not necessarily" or "inter alia" in relation to such communication. The Solicitor General for Scotland is disagreeing, but we are not talking about somebody posting letters; we are talking about people using the electronic communications that exist nowadays, which make people much more vulnerable.

I note that the Justice 1 Committee would have liked the act of grooming—I use that term loosely, not in a legalistic sense—to be referred to in the bill. It is possible that someone could groom a young person via a chatroom but leave it at that. A second person could then come along, not necessarily from the same paedophile ring, and engage in the same behaviour with the young person. The contact that the young person has already had might make them vulnerable to making a journey to meet the second person. There are difficulties with not stating in the bill that grooming is in itself an offence. I understand that the committee's view was that a breach of the peace charge would not necessarily be sufficient to cover that, so there might be a gap in the legislation.

On the age issue, I note that the committee's report states:

"the Association of Scottish Police Superintendents pointed out that, as currently drafted, the legislation ‘suggests that grooming can only be downwards—an older person grooming a younger person'."

However, the ASPS suggests that

"it can be the other way round."

Any vulnerable person, including an adult, can be groomed. That is not recognised in the bill, so an opportunity has been lost. The bill could have referred to "a child or other vulnerable person". I appreciate that we are now too far down the road to put that in the bill, but the matter should be considered by the Executive.

I move on to the evidential difficulties with the standard of proof. I understand where the Executive is coming from; if I am correct, risk of sexual harm orders are rather like interdicts in that the standard of proof is the balance of probabilities, whereas in the case of the other criminal offences or breaches of RSHOs the standard of proof would be that the evidence was beyond reasonable doubt. The matter is difficult and I do not have solutions, but there are human rights issues in that Disclosure Scotland might be contacted. Somebody might not have committed a criminal offence but be on Disclosure Scotland's list, but the standard of proof for prohibiting them from an area would simply be based on the balance of probabilities. There are concerns about that. As I said, it is a difficult issue and I have not come down firmly on one side or the other about the standard of proof, although I know that because it is a civil matter the principle that operates in Scots law is that it should be on the balance of probabilities. There are also difficulties with the four tests that have to be met. It seems to me that issues are involved. I think that the committee saw the proposed legislation as being preventive legislation. Establishment of proof will be extremely difficult.

I have a final point to make. In a letter from the minister on the evidence test, she acknowledges that it may well be useful for protocols to be produced to reduce the risk of contamination of evidence—that is, contamination between the criminal offences and the civil offences. I do not know what that means. It would be useful, if there are to be successful prosecutions, for the Solicitor General for Scotland or the minister, who is now entering the chamber, to explain exactly what that means.

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Plenary, 17 Mar 2005

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