CHAPTER FIFTEEN - OTHER RELEVANT ACTS
Criminal Procedure (Scotland) Act 1995 - Schedule 1 Offenders - offences against children under age of 17
15.1 Schedule 1 of the Criminal Procedure (Scotland) Act 1995 lists a number of offences against children under 17. Section 21 of the 1995 Act confers a power on a police constable in certain circumstances to take people into custody without a warrant if they have committed any of the offences mentioned in Schedule 1 of the 1995 Act or the constable has reason to believe they have committed the offences. Such offenders are commonly termed 'Schedule 1 offenders'. It should be clear in the records of a restricted patient whether the patient falls into this category. However, if it is not, legal advice should be sought.
Sexual Offences Act 2003
15.2 A patient will be identifiable as a sex offender under the Sexual Offences Act 2003 from a comparison of his offence(s) with those listed in Schedule 3 to the 2003 Act. The notification requirements of Part 2 of the 2003 Act replace, with amendments, the notification requirements of the Sex Offenders Act 1997. The 1997 Act came into effect on 1 September 1997.
15.3 The 2003 Act applies equally to:
- mentally disordered offenders who, on 1 September 1997, were detained in a hospital under Part VI of the Mental Health (Scotland) Act 1984 or Part VI of the Criminal Procedure (Scotland) Act 1995; and
- offenders dealt with under these provisions following a conviction on or after 1 September 1997.
15.4 For these purposes, conviction includes a finding of not guilty by reason of insanity or by virtue of a finding of having done the act charged in respect of a specified offence but where the accused was unfit for trial.
15.5 Where it is not clear whether a patient is required to register under the 2003 Act, legal advice should be sought by the patient. The RMO should advise the patient about this.
15.6 Registration involves notifying the patient of their obligations under the 2003 Act. Relevant sex offenders are required to notify the police within 3 days of discharge from hospital of their name, date of birth and home address, in person at designated police stations. Measures also include allowing the police to take photographs and fingerprints on initial registration. Section 96 of the 2003 Act provides powers to Scottish Ministers to make regulations requiring those responsible for an offender who is subject to the notification requirements of the 2003 Act while he is in detention, to notify other relevant authorities of his release or transfer to another institution.
15.7 NHSMEL (1997) 48 and Police Circulars Nos. 9/2000 and 6/2001 provide full guidance on the implementation of the Act, as amended. Regulations and guidance arising from section 96 will be provided separately. Clarification on this will appear in the final version of the revised MOP.
Sex Offender Order
15.8 Sexual Offences Prevention Orders ( SOPOs) and interim SOPOs are intended to protect the public from the risks posed by offenders by placing restrictions on their behaviour. The SOPO updates and replaces Sex Offender Orders (introduced on 1 December 1998 under section 20 of the Crime and Disorder Act 1998). The decision to apply for a SOPO lies with the police. It can be used against anyone with a previous conviction for an offence listed in Schedule 3 to the Sexual Offences Act 2003. A SOPO is a civil order that requires a civil standard of proof: however a breach constitutes a criminal offence, and attracts a maximum penalty on indictment of five years imprisonment. The police can apply for an order against anyone with a conviction for a sex offence whose present behaviour in the community gives them reasonable cause for concern that an order is necessary. The order may impose any prohibitions on the person's behaviour, which areconsidered necessary to protect the public from serious harm. The orders require sex offenders to register under the Sexual Offences Act 2003 while they are in effect.
Schedule 1 Offenders and Sex Offenders
15.9 It should be noted that offenders who have to register under the Sexual Offences Act 2003 are only a particular subset of those who might be considered to be sex offenders and to present a risk to women or children. Not being required to register does not preclude a restricted patient being treated as a risk to women or children where his index offence, past history or recent behaviour indicates this is the case.
15.10 Hospitals should have in place their own policy and procedures covering children visiting patients or accompanying adults who are visiting patients. These should take account of the particular considerations relating to Schedule 1 and Sex Offenders.
15.11 Care must be also taken when arranging any visits or outings for such restricted patients where the patient might come into contact with children. Attending hospital for a hospital appointment, visiting a sick relative or making a visit to any home situation should be given careful consideration. When planning visits to public places, and in particular to leisure facilities and tourist attractions, the likelihood of children at the particular venue at the time of the visit should be considered and the visit adjusted accordingly. Arguably assessing the patient's reaction to contact with children is part of the rehabilitation. The care team must take account not only of the possibility of physical contact with a child but also the potential for distress to children and their carers by behaviours, such as ogling or sexually suggestive behaviour. In general, the rights of the child are paramount and it is preferable to plan to avoid such contacts wherever possible until rehabilitation has reached a stage where it is reasonable to consider the risk to be manageable and the risk of causing distress minimal.
15.12 For these offenders, and others who it is considered may present a risk to women or children, the Scottish Executive Health Department ( SEHD) finds it very helpful to have a social work report on the offender and, where a visit to a home setting is planned, on the parties involved in the visit and the setting. RMOs should take the initiative in arranging these reports from the social workers attached to the hospital and provide a copy to SEHD.
TestingDNA
15.13 Sections 19A and 19B of the Criminal Procedure (Scotland) Act 1995 confer powers which cover the taking of samples etc from sexual and violent offenders. These powers extend to patients detained in hospital under the Criminal Procedure (Scotland) Act 1995 or its predecessors by virtue of a compulsion order with or without a restriction order, a hospital direction and any order under section 57(2)(a) or (b) of the 1995 Act. It is appreciated that particular care will need to be exercised when the police are taking samples from mentally disordered offenders.
Patients Detained in Hospital
15.14 Police forces have been advised to contact hospitals where a relevant patient is detained in advance to ensure that suitable accommodation can be arranged for the taking of the sample and that a member of the clinical staff can be in attendance during the taking of the sample. Police forces have been asked to ensure that these arrangements cause the minimum disruption to the normal running of the hospital and to the treatment of the patient.
15.15 Following initial contact with the hospital, the police have been asked to ensure that the patient is given prior notification in writing, copied to his RMO, of the intention to take a non-intimate sample under the provisions of section 19A of the 1995 Act. The practical arrangements for notification should be discussed with the hospital manager in advance. There may be, for example, some circumstances where the patient's RMO may consider that the taking of a sample from a patient should be deferred because the patient's mental state may be such that this action would be counter-therapeutic and may be delayed until the patient's mental state improves. In these circumstances, the police have been advised to make alternative arrangements with the hospital to take the sample at a later date.
15.16 In cases where the patient refuses to co-operate freely with the sample-taking procedure, either as a result of their mental condition or any other reason, it may not be desirable for the patient's clinical team to be involved in taking the sample by force. In such cases, consideration should be given in discussion with the hospital manager as to whether the sample should be taken without a member of the multidisciplinary team being present, whether a third party might be asked to be present, i.e. someone akin to an appropriate adult, or whether the taking of the sample should simply be deferred.
Patients Living in the Community
15.17 A number of patients who have been discharged and are living in the community have already been required to provide samples for the police. In these circumstances, the police should liaise with the patient's RMO and have been asked to keep visits to individual homes as low key as possible and preferably by officers in plain clothes. The patient has the right to decide whether to give the sample immediately at home or at the nearest police station. The patient can also choose to have the sample taken at the hospital with staff the patient is familiar with present.
Insane in Bar of Trial
15.18 Those patients (s174 of the Criminal Procedure (Scotland) Act 1975) who have not been convicted but found to be insane in bar of trial prior to the 1995 legislation coming into force, may not fall within the scope of the new legislation. In such cases, where the police insist on taking a sample, the advice of a solicitor should be sought. Patients who have been found to be insane in bar of trial and an examination of facts has taken place, i.e. Section 57(2)(a) and (b) of the Criminal Procedure (Scotland) Act 1995, are required to provide samples if they meet the criteria outlined in paragraph 15.13.