Hansard

Pauline McNeill's fright was nothing compared to mine.

It has been said that the Conservative party welcomes the general principles of the bill. In an increasingly complex technological age, the law must develop to meet new challenges. I read the bill before I read the Justice 1 Committee's report, which is a very good piece of work. My first realisation was that section 1 of the bill does not deal with what I would describe as questionable communications; rather, it defines an offence that is constituted by a series of events. Therefore, I was comforted by the committee's sensible observations in paragraphs 81 and 82 of its report, which recognise that gap.

A political decision is needed about striking at communications to a young person that would, if they were known about, cause concern to the young person's parent or guardian. The question is whether we should strike at any communications between an individual and a young person or only at communications that contain sexual allusions that are likely to corrupt and deprave. The first option is impractical, but the second is not. Most parents and guardians would be deeply concerned if a young person was receiving such material. Stewart Stevenson graphically described how quickly such communications can materialise through the internet. In such situations, a parent or guardian would—not unreasonably—think that criminal law would intervene before completion of the series of events that is required to satisfy section 1. We know that communication on at least two occasions, a meeting with the child with criminal intent and unreasonable belief that the child was over 16 would be required. There is an argument that the existing criminal law covers such communications; indeed, lewd and libidinous conduct has been invoked as a charge that has led to conviction and the committee's report refers to such an instance. However, the legitimate question that the Executive must answer is whether the common law is sufficiently robust. If it is not, statutory support would seem to be necessary.

The committee proposed that one option would be to include breach of the peace in the list of sexual offences in part 1 of the Sexual Offences Act 2003 where the nature or circumstances of the offence are clearly sexual. A number of members have referred to that. I agree that the option is worth considering, but my concern is that there may be difficulty in that the basic common-law crime of breach of the peace was not intended to cover such situations. It could be more difficult to prove the charge in the context of a sexual communication and to secure a conviction. Members are interested in creating law that allows the Crown a reasonable prospect of conviction when prosecuting cases.

I have a suggestion to make, which is that it may be possible to draft a simple statutory offence that is constituted by a person's sending to a young person a communication that contains material that is likely to corrupt or deprave. That would allow objective assessment of the circumstances by the courts and it would present simpler cases for prosecutions to prove. The obvious attraction is that, whether by common law or statute, such communications would constitute criminal activity, which would mean that on conviction the offender could be placed on the sexual offenders register and the offence would be constituted without there having been a meeting or series of events.

I turn briefly to the serious offence that section 1 of the bill will create. My reaction is that it will be difficult for the Crown to cover all the steps that are envisaged by section 1, which is all the more reason why we should consider the communication stage of contact.

On risk of sexual harm orders, much attention has already been focused on the onus of proof and the balance of evidence and on whether the criminal or civil evidence test be used; the clear intention is that civil procedure be used. The committee has signalled concerns about the appropriateness of civil procedure; I echo those concerns.

I will pose some questions about the procedure for an RSHO and the evidence requirement. If I read the section correctly, there is no provision for serving the application on the respondent and it creates no right of response to, or justifies appearance by, the respondent. Is the application to be in the form of an initial writ, for example? Will that mean that it will then follow standard sheriff court procedure? It seems to me that if there are parties with malign intent who are anxious to discredit an individual, they could present fictitious information that the respondent would be powerless to question. Under the bill as it stands, the respondent's rights are restricted to appeal of the order. If section 2 does not require appearance by the defenders, will cases proceed as undefended civil processes and could the chief constable produce his evidence by affidavit? Those are important questions because the chief constable has to produce evidence that on at least two occasions the individual has—to quote section 2(1)(a)—"done an act". Does the chief constable simply say by affidavit that he is satisfied that on two occasions the individual has "done an act"? Is that to be the evidence? If it is, it is very frail.

I have genuine concerns about what section 2 of the bill means in terms of the technicalities of production of evidence and the rights of respondents to question legitimately what evidence might amount to.