CHAPTER FOUR
Chapter Four: Recommendations 40-47
Recommendation 40: Section 2 of Schedule 1 of the Sex Offenders Act should be amended to broaden the scope of offences to which the notification requirements apply.
Scottish Executive
Recommendation 41: The requirement to provide notification under the Sex Offenders Act 1997 should be extended to include any offender convicted of any crime containing a sexual element, at the discretion of the sentencing judge.
Scottish Executive
Recommendation 42: Offences under sections 106 and 107 of the Mental Health (Scotland) Act 1984 should be included in Schedule 1 to the Sex Offenders Act 1997.
Scottish Executive
Recommendation 43: The notification requirement should be extended to include:
(i) any British national convicted of a relevant sexual offence outside the UK who returns to the United Kingdom and,
(ii) any foreign national, similarly convicted, who has come to the United Kingdom following conviction.
Scottish Executive
Recommendation 44: Sex offenders who are subject to the notification requirements should be required to attend in person at a police station in order to provide the appropriate notice and should at the time of doing so also be required to furnish reasonable proof of identity.
Scottish Executive
Recommendation 45: Sex offenders who are subject to the notification requirements should be required to notify the police within 5 days:
(a) when they intend to be away from their home address for more than 5 days,
and
(b) of any address in the UK where they reside or stay longer than 5 days.
Scottish Executive
Recommendation 46: Sex offenders who are subject to the notification requirements and are of no fixed abode should be required to report to a police station every 7 days.
Scottish Executive
Recommendation 47: Where an offender has failed to register timeously, the Court having jurisdiction in the place of his last known address should have the power to grant a warrant for his arrest in respect of the commission of an offence under section 3 of the 1997 Act.
Scottish Executive
- These recommendations were broadly welcomed. Some of the areas they cover were also considered by a joint Home Office and Scottish Executive review of the Sex Offenders Act 1997. The recommendations made following this review have been subject to a consultation exercise.
- The Panel recommended that the restrictions on the requirement to register for sexual assault cases should be broadened and that the age limit be removed. The joint review proposed limiting the requirement to sexual assault cases which attracted a sentence of imprisonment, or a supervision order of more than twelve months.
- All consultees except two supported recommendation 41. One consultee said that it was important that the record of conviction should mention why the offence merited notification. The Law Society supported the recommendation and suggested that an order should be served on the accused to inform them that the sexual aspect of the case will be considered. They also suggested that the requirement to notify should form part of the sentence and therefore be subject to appeal.
- Recommendations 42 and 47 were supported by consultees and not considered by the joint review.
- The Expert Panel acknowledged that implementing recommendation 43 might be problematic. The joint review suggested the introduction of an Order to register as a Sex Offender which could then be made use of in relation to the people described by categories (i) and (ii) of the Expert Panel's recommendation. The Law society supports the joint review recommendation in favour of the Expert Panel's.
- Consultees supported recommendation 44 which is similar to that made in the joint review. One consultee pointed out that arrangements must be in place to manage a situation when an offender is unable to attend in person due to illness or accident.
- Consultees supported recommendation 45. The Law Society stated that it preferred the joint review's suggested 8-day period after a change of address to the 5-day period prior to a move suggested by the Expert Panel. We will consider this following the outcome of the joint review. The Association of Chief Police Officers in Scotland suggested that sex offenders leaving the country should also be required to notify the police how they intend to travel and where from to ensure, for instance, that they do not travel next to unaccompanied children on a long haul flight.
- Recommendation 46 caused some concern that the burden upon those of no fixed abode to register was greater than that on all others and that this may breach the European Commission on Human Rights. Consultees supported the aim of the recommendation but some, including the Law Society, suggested that the Home Office recommendation, which would allow such people to register the place at which they regularly stay, was a less invasive way to achieve the desired result.
- The Association of Chief Police Officers in Scotland said that these proposals will have a significant impact on the level of resources required to monitor sex offenders.
- The Scottish Executive accepts recommendations 40, 41, 44 and 45 in principle, has fed the views of the Panel into the joint review process and will decide on how best to take forward in the light of the outcome of the joint review consultation. The Executive favours the approach taken by the joint review in relation to recommendations 43 and 46. This will ensure a consistent UK approach which is in line with the views of the Expert Panel. Recommendations 42 and 47, which did not form part of the joint review, will be taken forward separately by the Executive.
Chapter Four: Recommendations 48-51
Recommendation 48: Sex offenders, whether or not subject to the notification requirements of the Sex Offenders Act 1997, should be required to comply with the risk assessment process to the extent of making themselves available to the appropriate agencies for interview and of allowing access to their home for the purpose of risk assessment.
Scottish Executive
Recommendation 49: A statutory duty should be placed upon Chief Constables and Chief Social Work Officers to establish joint arrangements for assessing, monitoring and managing risk.
Scottish Executive
Recommendation 50: Hospital managers and the Scottish Prison Service should be required to give notification to the police on the release or transfer of patients or prisoners subject to the notification requirements of the Sex Offenders Act. The Scottish Executive guidance should be amended to reflect this change and should also take account of the situation where a detained patient is granted leave of absence from hospital.
Scottish Executive
Recommendation 51: The Scottish Executive should give further consideration to providing a legislative base to allow for the use of electronic monitoring for the highest risk offenders on their release to assist in the monitoring process.
Scottish Executive
- Recommendation 48 was supported by consultees although the Law Society suggested that this could be problematic under ECHR, and pointed out that the report does not explain at this point which offenders this recommendation will apply to.
- Consultees approved of the aim of recommendation 49, but some said that it was unnecessary to impose a statutory duty for this since most areas already have such an arrangement in place. Others asked for clear guidelines outlining the roles of the two agencies these people represent.
- Recommendation 50 was welcomed by many. Some felt that a mandatory requirement should be placed on hospital managers to achieve this. The Mental Welfare Commission for Scotland was concerned that this requirement was opposed to the notion of medical confidentiality. They pointed out that such notification can already happen, and they felt it should remain a discretionary power.
- Consultees supported recommendation 51, although it was pointed out that a cautious approach must be taken with this monitoring as "[sex offenders] are known to often be both superficially compliant and to offend against individuals they know well" according to one local authority.
- The Scottish Executive wants to give more consideration to recommendation 48. It accepts recommendations 49 and considers it will be helpful to have a statutory duty in place and supports recommendation 50, agreeing with many consultees who suggested that the requirement to notify the police of release should take effect at least fourteen days before release. Provision has been made in the Criminal Justice (Scotland) Bill to allow electronic monitoring as a condition of release on licence (recommendation 51).
CHAPTER FIVE
Chapter Five: Recommendations 52-54
Recommendation 52: The Scottish Executive, Scottish Homes, the local authorities and the Scottish Federation of Housing Associations should develop a national accommodation strategy to assist the management of sex offenders in the community. This strategy should be based on the key principles articulated in the guidance issued by the Chartered Institute of Housing in Scotland (CIHS) and on the explicit expectation that sex offenders will be accommodated outwith their home area only in exceptional circumstances. A central clearing house arrangement should be established to deal with these exceptional cases in the interests of community safety.
Scottish Executive, Scottish Homes, the Local Authorities & the Scottish Federation of Housing Associations
Recommendation 53: The Scottish Executive should provide funding to enable the local authorities, the Scottish Federation of Housing Associations and the relevant professional bodies to develop an education and training programme on good practice in housing sex offenders in the community. The programme would be targeted to housing providers and their management bodies. This should be based on the guidance developed by the Chartered Institute of Housing in Scotland, should address stakeholder concerns about the responsibilities and limitations imposed on the police, social work and other agencies through implementation of the Sex Offenders Act and should locate good practice within the context of community safety.
Scottish Executive, Scottish Federation of Housing Associations & other professional bodies
Recommendation 54: The Homelessness Task Force should ensure that any new guidance relating to the Housing Bill 1 and the revision of the Code of Guidance on Homelessness take appropriate account both of the need to house sex offenders and of the particular challenges this presents.
Homelessness Task Force
- Consultees approved of the national accommodation strategy and the central clearing house. The City of Edinburgh council and the Howard League for Penal Reform did not support the expectation that sex offenders should be accommodated outwith their home area only in exceptional circumstances. The Howard League suggested that an offender might prefer to resettle in a new area and that to do so might be safer. The council said that from its experience, those who have served custodial sentences might form links with new areas, through college or work placements during their sentence, and might prefer to reside in these areas on release.
- Edinburgh City Council and the Scottish Council for Single Homeless felt that it might be appropriate to prioritise sex offender's housing needs. They said that in order to complete a treatment programme an offender will benefit from a stable home base. Also, not ensuring stable housing for sex offenders could be seen to go against the principles of risk management. However, this was not seen to be contrary to the Chartered Institute of Housing's key principles. These respondents took the view that, although sex offenders should not be given special housing treatment merely because they are sex offenders, particular arrangements can be made to accommodate an offender in the context of managing risk and improving public safety.
- Barnardo's said that accommodation for young people unable to stay at home and those leaving care should be considered as part of the strategy. Several consultees said that they would like to see a range of accommodation available to suit different categories of offender across Scotland. Some were concerned that registered social landlords and private sector housing companies should not be entitled to have blanket policies refusing sex offenders.
- Generally, these recommendations were welcomed. Consultees pointed out that there are other issues around registered social landlords that need to be considered, such as disclosure of information. The education and training programme should include private sector housing providers.
- The Scottish Executive accepts these recommendations. The Scottish Executive supports the expectation that offenders will normally be housed within their home area, but of course this will not mean they cannot move to a different authority. In July 2001 the Executive published a review and consultation paper on Criminal Justice Accommodation Services and it will publish its response shortly. The Accommodation Strategy will include the issues which need to be addressed in relation to the housing of sex offenders.
CHAPTER SIX
Chapter Six: Recommendations 55-57
Recommendation 55: In sexual offence cases prosecuted, on indictment, where a plea of guilty is tendered and accepted, the tape recording of the Crown's narrative of the facts of the offence upon which the plea has been agreed, together with anything said on the accused's behalf, should be transcribed and made available to report writers. In summary cases, similar arrangements should be put in place.
Scottish Executive
Recommendation 56: Where a sexual offence case has proceeded to trial and conviction, a brief note should be prepared by the trial judge. This should set out the circumstances of the offence as established by the evidence. This note should accompany the request from the court to each report writer.
Scottish Executive
Recommendation 57: As recommended in chapter 2, any information from the Court and all material gathered by report writers should be routinely shared between report writers. Those writing reports should prepare their reports in consultation with each other.
Scottish Executive
- Respondents welcomed these recommendations. As the comments in relation to recommendations 13-15 make clear, some consultees would like more information to be made available to report writers such as victim or witness statements.
- It was suggested that a cheaper alternative to recording would be to require either the Procurator Fiscal and defence to submit a written summary of the facts and mitigation plea to report writers, or for Social Workers to attend court and take notes which could be forwarded to report writers. However, the principle was supported and the alternatives suggested would incur increased costs for other parts of the system.
- Also echoing comments made in relation to those earlier recommendations, one consultee pointed out that the requirement on a judge to prepare a brief note would add to the delay before sentencing. One local authority suggested that a timescale be laid down for judges to produce this note. The Law Society suggested that the note should include mitigating factors and that both the prosecution and defence should be invited to comment on a draft of it.
- Another local authority suggested that information should only be shared on a need to know basis as some might be personal and not of interest to anyone except the report writer, for example information required to complete a substance misuse assessment. Conversely, another suggested that information gathered for the purpose of report writing should become the property of the court. This would allow complete sharing of information. The Law Society suggested that sentencing should be informed by a full risk assessment based on the current case and informed by the antecedents of the offender and previous convictions (not previous allegations).
- The Scottish Executive accepts these recommendations. Provisions to legislate for recommendations 55 and 56 are included in the Criminal Justice (Scotland) Bill and recommendation 57 will be taken forward along with the implementation of recommendations on better procedures for sharing information.
Chapter Six: Recommendations 58-59
Recommendation 58: A system should be introduced for flagging, on an offender's record, the existence of a sexual element in any case where the charge is not itself a sexual offence.
Scottish Executive
Recommendation 59: The Crown should ensure that in all sexual offence cases it appends to the notice of previous convictions the extract of any previous convictions where it considers that there are factors relating to that previous conviction which ought to be before the court in deciding on the appropriate disposal.
The Crown Office
- Although welcomed by consultees, several suggested that there should be a system of appeal against the flagging of a sexual element in a case and that it should trigger a risk assessment of the offender. Some consultees asked under what circumstances this information would be disclosed.
- The Scottish Executive accepts these recommendations and a working group will consider the development of a flagging system. The Lord Advocate has already issued instructions concerning information in relation to previous convictions.
Chapter Six: Recommendations 60-62
Recommendation 60: The Scottish Prison Service, local authorities, hospitals and the Scottish Court Service should build on their existing liaison arrangements to establish effective systems for the transfer of information. Targets for the speed of transfer of information should be set. The effectiveness of transfer arrangements and targets should be monitored.
The Scottish Prison Service, Local Authorities, Hospitals & the Scottish Court Service
Recommendation 61: The social enquiry report and any psychological and psychiatric reports should be made available to the Scottish Prison Service when a prisoner enters custody. The warrant travelling with the prisoner should clearly set out which reports were provided. This should be checked by the Scottish Prison Service and missing reports obtained promptly. The Scottish Court Service should ensure that the trial judge's report is passed on as soon as possible thereafter and the Scottish Prison Service should monitor receipt of these, pursuing outstanding reports as necessary.
Scottish Court Service & the Scottish Prison Service
Recommendation 62: The Scottish Court Service and the Scottish Prison Service should ensure that staff training and procedures cover information transfer and they should monitor the accuracy of recording of information.
Scottish Court Service & the Scottish Prison Service
- These recommendations were welcomed although several consultees pointed out that data transfer must take account of the Data Protection Act. Other consultees noted their concern again about issues of confidentiality of the medical profession and disclosure issues. One local authority suggested that this recommendation should be imposed statutorily. Another local authority pointed out that police forces should be involved in these liaison arrangements.
- The Law Society said that, under ECHR, prisoners should be made aware that this information was being passed to the prison service. Recommendation 61 should also include the provision of this information to the responsible medical officer if an offender is given a hospital disposal or undergoes treatment for mental illness in hospital. The SPS suggested that joint training with the Scottish Court Service would facilitate recommendation 62.
- The Scottish Executive accepts these recommendations and will set up a high level Steering Group to devise practical arrangements for improving the transfer of information between agencies.
Chapter Six: Recommendation 63
Recommendation 63: The Scottish Prison Service and local authorities should develop a national protocol determining the pertinent information which must be exchanged at the point of release from custody into the community.
Scottish Prison Service & Local Authorities
- This recommendation was approved by consultees, and it was pointed out that privately operated prisons should be considered in developing this protocol. The protocol should form part of the National Standards. The protocol should consider early pre-release planning for more serious cases and should require that information of this nature is exchanged at least fourteen days before the release of the prisoner. NHS Argyll and Clyde said that the information should also be given to the primary healthcare team. Protocols for information sharing in the NHS are under consideration
- The Scottish Executive accepts this recommendation and will include this in the remit of the Steering Group which is being established on information transfer.
Chapter Six: Recommendations 64-65
Recommendation 64: Protocols to provide a framework for information sharing and joint working should be developed. These should draw on the best examples of current good practice and should be kept under review to ensure that they do not degrade and become less useful over time. The development of these protocols should involve liaison with relevant voluntary organisations.
Scottish Executive
Recommendation 65: The importance of information sharing should be reflected in the key performance indicators of individual agencies.
Individual Agencies
- The first of these recommendations was welcomed and was requested by several consultees in response to recommendation 60. Several respondents suggested that new protocols and the KPIs could be incorporated into Public Protection or Community Safety frameworks.
- Scottish Borders Council suggested that the national standards already spell out a requirement for this level of co-operation between agencies and that clarification about disclosure to third parties should be included in the protocols.
- There was support for identified targets against which to monitor progress in improving information sharing. This could be done by KPIs, although West Lothian Council saw information transfer as something that would best be measured on a qualitative rather than quantitative basis.
- The Scottish Executive accepts the first of these recommendations. Further work will be done to establish the feasibility of KPIs and agency support for them under the aegis of the Steering Group on information transfer.