Hansard

A number of times when a bill has been introduced, I have questioned its value or opposed it outright on the grounds that it is unnecessary or counterproductive, but I am happy to say that that is not the case today. I warmly welcome the principles of the bill, which is divided into three distinct elements.

Section 1 creates a new offence of meeting or travelling to meet a child with the intention of committing a criminal offence. Its introduction fills a crucial gap in Scots law, in that it covers the act of grooming with the intention to meet a child for an illegal sexual purpose that is not covered by either lewd, indecent and libidinous practice or fraud. I have argued for that measure for a long time and therefore very much welcome the fact that the Executive has changed its position and taken the decision to introduce the measures in section 1, despite having earlier deemed them unnecessary. I consider that to be a sign not of weakness, but of strength; it is indicative of a legislature that is growing in maturity, which can only be good for devolution.

However, although section 1 will raise awareness of the disturbing problem of sexual grooming as well as sending out a strong message that that kind of behaviour will not be tolerated—the value of those actions should not be underestimated—the section does not criminalise grooming per se, so it may not result in the prosecution of many of those who present a serious threat to our children. The prevalence of the threat is not in doubt, as the evidence of Rachel O'Connell and the national hi-tech crime unit all too alarmingly testified. In order that our children have every possible protection, I urge the minister to consider again the committee's recommendation that an offence of breach of the peace be included in the schedule. That would allow charges to be brought against a person who grooms a child via the internet when the communication is clearly of a sexual and inappropriate nature. Crucially, it would eliminate the necessity to prove that the person was travelling with intent to meet their victim.

I urge the minister to revisit other issues. First, on the requirement to have communicated on at least two occasions, evidence from the Law Society of Scotland, ACPOS and others points out that grooming could occur during one session. Secondly, on the onus of proof in respect of reasonable belief, I ask the minister to clarify whether she favours the onus of proof lying with the Crown or, as the committee favours, with the accused.

I welcome the fact that the minister has indicated that she will re-examine the issue of the offender's age. The majority of those who gave evidence favoured 16 as the minimum age for the offender. That was the position in my proposal for a member's bill, but, having listened to the evidence and arguments in favour of not specifying an age limit, I have been persuaded that that would be preferable, as it would cover the situation in which, for example, a 15-year-old groomed a 10 or 12-year-old.

Section 2 will introduce risk of sexual harm orders, the implementation of which will involve complex legal issues. The minister has addressed some of those issues, but I invite her to reconsider the following points. First, the standard of proof that will be required for an RSHO is the civil standard—that is, the balance of probabilities—as opposed to the higher criminal standard of beyond reasonable doubt. The rationale that lies behind that measure is, I believe, that the higher standard is used only with criminal offences, or when the accused might directly lose their liberty. However, that does not take into account the fact that a breach of the RSHO will lead to a loss of liberty as part of the process. In the light of the Constanda case, I urge the minister to reconsider that issue.

Secondly, I ask the minister to consider the test for interim RSHOs, which, given the potential consequences of such an order's imposition, should be the same as the test for full orders—an interim order should be given on the basis of necessity and not on the basis of the lesser test of its being just so to do. Thirdly, I would welcome clarification of exactly when and where RSHOs would be used. For example, I seek confirmation that they might be used following a not guilty or not proven verdict, as was suggested in evidence to the committee. Last, I would like more information about how the orders will be monitored.

There is limited time available, which is regrettable; as a result, it is not possible for me to cover the many issues that I would have liked to highlight, including those surrounding disclosure, admissibility of evidence and stigma. I will say merely that the bill has many worthwhile aspects, which have the potential to make a difference to the protection of children. I look forward to hearing the deputy minister's response to the issues that I have raised.