Scottish Government

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Consultees at Annex

Telephone: 0131-244 2149
Fax: 0131-244 6666
ian.fleming@scotland.gsi.gov.uk
http://www.scotland.gov.uk

Your ref:
Our ref: Section 96 regulations consultation
November 2005

Dear Sir/Madam,

Consultation on the draft Sexual Offences Act 2003 (Notice of Release or Transfer) (Scotland) Regulations 2006

I am writing to advise you that the Scottish Executive is undertaking a consultation on draft Regulations which require those who are responsible for a relevant sex offender while he is in detention to notify other relevant authorities of his release into the community, or his transfer to another institution.

Background

Part 2 of the Sexual Offences Act 2003 came into force on 1 May 2004. The legislation made several changes to the notification requirements for sex offenders who are convicted, or receive another finding in respect of relevant sexual offence listed in Schedule 3 to the 2003 Act. The notification requirements place an obligation on relevant sex offenders to give certain information to the police. The information which the police hold in relation to relevant sex offenders is colloquially referred to as the sex offenders register. The notification requirements are an invaluable tool for the police to manage sex offenders within the community and early indications are that the changes we introduced are working well.

The notification requirements are suspended while relevant sex offenders are serving a term of imprisonment, or are detained in a hospital. Sex offenders are subsequently obliged (under section 83(1) or section 84(1)(d)) to notify certain details, to the police within 3 days of their release. Failure to comply with the requirements is a criminal offence with a maximum penalty of imprisonment for a term of 5 years.

In addition to this requirement on relevant sex offenders, the Scottish Ministers would like to make regulations under section 96 of the 2003 Act to require those who are responsible for a relevant sex offender while he is imprisoned or detained in a hospital to notify other relevant authorities of his release into the community or transfer to another institution. This measure implements recommendation 50 of the Expert Panel on Sex Offending, which called for a mandatory requirement to be placed on hospital managers and the Scottish Prison Service.

I attach a draft of the regulations the Scottish Ministers would like to lay before Parliament. If enacted, these regulations would:

• require responsible persons in prisons and hospitals to inform one another, when transferring a sex offender, that the notification requirements will apply to that offender upon his or her release, and
• require responsible persons in prisons and hospitals to inform the police of the release of such a sex offender for a period of three days or more (or indefinitely). Such notice should be given 14 days in advance of the release or, if that is not possible, as soon as practicable thereafter.

We believe that these regulations will help the police to enforce the notification requirements and should further ensure that sex offenders who are released into the community cannot evade the arrangements that have been introduced to protect the public.

A copy of the 2003 Act can be obtained from The Stationery Office at TSO Scotland Bookshop, 71 Lothian Road, Edinbugh EH3 9AZ tel: 0870 606 5566 or e-mail: Edinburgh.bookshop@tso.co.uk or can be viewed on the following website http://www.opsi.gov.uk/acts/acts2003/20030042.htm

Responding to this consultation

We are inviting written responses to this consultation by 15 February 2006. Please send your response to: ian.fleming@scotland.gsi.gov.uk
or
Ian Fleming, Police Division, Scottish Executive, 1WR, St Andrew's House, Regent Road, Edinburgh EH1 3DG

If you have any queries contact Ian Fleming on 0131 244 2149

We would be grateful if you could clearly indicate in your response which parts of the consultation paper you are responding to as this will aid our analysis of the responses received.

For future engagement:

If you wish to access this consultation online, go to http://www.scotland.gov.uk/view/views.asp. You can telephone Freephone 0800 77 1234 to find out where your nearest public internet access point is, if you prefer to submit your response by e-mail to Ian.Fleming@scotland.gsi.gov.uk

SEConsult

A new email alert system for SE consultations ( SEconsult) was launched in December 2003. This system will allow stakeholder individuals and organisations to register and receive a weekly email containing details of all new SE consultations (including web links). SEconsult will complement, but in no way replace SE distribution lists, and is designed to allow stakeholders 'keep an eye' on all SE consultation activity, and therefore be alerted at the earliest opportunity to those of most interest. We encourage you to register as soon as possible.

Access to consultation responses

We will make all responses available to the public in the Scottish Executive Library and on the Scottish Executive publications web pages by 3 April 2006, unless confidentiality is requested. All responses not marked confidential will be checked for any potentially defamatory material before being logged in the library or placed on the website.

Yours faithfully,
Ian Fleming

RESPONDENT INFORMATION FORM: CONSULTATION ON THE DRAFT SEXUAL OFFENCES ACT 2003 (NOTICE OF RELEASE OR TRANSFER) (SCOTLAND) REGULATIONS 2006

Please complete the details below and return it with your response. This will help ensure we handle your response appropriately. Thank you for your help.

THE SCOTTISH EXECUTIVE CONSULTATION PROCESS

Consultation is an essential and important aspect of Scottish Executive working methods. Given the wide-ranging areas of work of the Scottish Executive, there are many varied types of consultation. However, in general, Scottish Executive consultation exercises aim to provide opportunities for all those who wish to express their opinions on a proposed area of work to do so in ways which will inform and enhance that work.

The Scottish Executive encourages consultation that is thorough, effective and appropriate to the issue under consideration and the nature of the target audience. Consultation exercises take account of a wide range of factors, and no two exercises are likely to be the same.

Typically Scottish Executive consultations involve a written paper inviting answers to specific questions or more general views about the material presented. Written papers are distributed to organisations and individuals with an interest in the issue, and they are also placed on the Scottish Executive web site enabling a wider audience to access the paper and submit their responses ¹. Consultation exercises may also involve seeking views in a number of different ways, such as through public meetings, focus groups or questionnaire exercises. Copies of all the written responses received to a consultation exercise (except those where the individual or organisation requested confidentiality) are placed in the Scottish Executive library at Saughton House, Edinburgh (K Spur, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD, telephone 0131 244 4565).

All Scottish Executive consultation papers and related publications (eg, analysis of response reports) can be accessed at: Scottish Executive consultations ( http://www.scotland.gov.uk/consultations)

The views and suggestions detailed in consultation responses are analysed and used as part of the decision making process, along with a range of other available information and evidence. Depending on the nature of the consultation exercise the responses received may:

• indicate the need for policy development or review
• inform the development of a particular policy
• help decisions to be made between alternative policy proposals
• be used to finalise legislation before it is implemented

Final decisions on the issues under consideration will also take account of a range of other factors, including other available information and research evidence.

While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body.

1 http://www.scotland.gov.uk/consultations

List of Consultees

All Clinical Directors/Medical Directors of Psychiatric Hospitals
All Responsible Medical Officers
British Medical Association
Forensic Mental Health Services Managed Care Network (Medical Director and Chairperson)
General Medical Council
Mental Welfare Commission for Scotland
Royal College of Psychiatrists
Association of Chief Police Officers in Scotland
Chief Constables
Scottish Prison Service
Governors-in-charge
Directors of Social Work

DRAFT REGULATIONS FOR CONSULTATION

SCOTTISH STATUTORY INSTRUMENTS

2006 No. [ ]

CRIMINAL LAW

The Sexual Offences Act 2003 (Notice of Release or Transfer) (Scotland) Regulations 2006

Made - - - - 2005

Laid before the Scottish Parliament 2005

Coming into force - - 2005

The Scottish Ministers, in exercise of the powers conferred by section 96 of the Sexual Offences Act 2003( a) and all other powers enabling them in that behalf, hereby make the following Regulations:

Citation, commencement and extent

1. - (1) These Regulations may be cited as the Sexual Offences Act 2003 (Notice of Release or Transfer) (Scotland) Regulations 2005 and shall come into force on [ ].

(2) These Regulations extend to Scotland and, in so far as regulation 7 extends beyond Scotland, it does so only as a matter of Scots law.

Interpretation

2. In these Regulations, the "2003 Act" means the Sexual Offences Act 2003.

Requirement to give notice

3. Where a relevant offender( b) is serving a sentence of imprisonment( c), or is detained in a hospital( d):

(a) the person responsible for that offender must give notice in accordance with regulation 4 if the offender is to be transferred to another institution where he or she will continue to be imprisoned or detained; and

(b) the person responsible for that offender must give notice in accordance with regulation 5 if the offender is to be released from imprisonment or detention for a period of 3 days or more.

( a)2003 c. 42. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 142(6) of the Sexual Offences Act 2003 and section 53 of the Scotland Act 1998 (c.46).
( b)"relevant offender" is defined in section 80(2) of the 2003 Act as a person for the time being subject to the notification requirements of Part 2 of the 2003 Act.
( c) "imprisonment" includes the disposals for young offenders set out in section 131 of the 2003 Act.
( d)"detained in a hospital" is defined in section 133(1) of the 2003 Act.

Notice to be given on transfer

4. Where a relevant offender to whom regulation 3 applies is transferred to another institution where he or she will continue to be imprisoned or detained, notice must be given prior to the date of transfer that the offender is subject to the notification requirements of Part 2 of the 2003 Act.

Notice to be given on release

5. - (1) Where a relevant offender to whom regulation 3 applies is to be released from imprisonment or detention for a period of 3 days or more, notice must be given in accordance with this regulation to the chief constable for the police area ( a) in which the offender intends to reside, or if it is not known where the offender intends to reside, to the chief constable for the police area in which the institution from which he or she is to be released is located.

(2) Notice must be given 14 days before the proposed date of release or as soon is practicable before that date.

(3) The notice must contain the following information about the relevant offender:

(a) the offender's name, or other names the offender is using,

(b) the offender's date of birth,

(c) details of the offence, the sexual offences prevention order (b) or notification order (c) in respect of which the offender is subject to the notification requirements of Part 2 of the 2003 Act,

(d) the notification period that applies to the offender,

(e) the date of the offender's proposed release, and

(f) the duration of his purposed release .

Persons responsible for a relevant offender

6. For the purposes of section 96 of the 2003 Act and these Regulations, the person who is to be treated as responsible for a relevant offender is:

(a) in relation to an offender detained in a prison or young offenders' institution, the governor, or director.

(b) in relation to an offender detained in a hospital, the chief executive.

Notice to be given on release where a relevant offender intends to reside in England, Wales or Northern Ireland

7. Where a relevant offender intends to reside in England or Wales on release, the notice to be given pursuant to regulation 5 should be given to the chief officer of police for the police area ( b) in which he or she intends to reside or, in the case of that offender intending to reside in Northern Ireland, to the Chief Constable of the Police Service of Northern Ireland.

( a)"chief constable" and "police area" have the meanings given in sections 50 and 51(4) of the Police (Scotland) Act 1967 (c.77).
( b) A sexual offences prevention order may be made under sections 104 and 105 of the 2003 Act and, pursuant to section 107 of the 2003 Act, has the effect of making an offender subject to the notification requirements of Part 2 of the 2003 Act. Section 112 of the 2003 provides that sections 104 and 107 apply to Scotland with specified modifications.
( c) A notification order may be made under section 97 of the 2003 Act, and pursuant to section 98 of the 2003 Act, has the effect of making the offender subject to the notification requirements of Part 2 of the 2003 Act. Section 103 of the 2003 Act provides that section 97 and 98 apply to Scotland with specified modifications.
( d)"chief officer" and "police area" have the meanings given in section 101(1) of the Police Act 1996 (c.16).

A member of the Scottish Executive
St Andrew's House,
Edinburgh
2005

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations extend to Scotland only.

Part 2 of the Sexual Offences Act 2003 (the "2003 Act") provides that those convicted of specified sexual offences, or those whose behaviour in committing an offence is found by the court imposing sentence, or other disposal, to have involved a significant sexual aspect, are required to notify their personal details to the police. A person who is subject to the notification requirements is referred to a relevant offender. In relation to relevant offenders who are imprisoned or detained, section 84(1)(d) of the 2003 Act requires them to notify their personal details to the police within 3 days of their release. Section 96 of the 2003 Act provides that regulations may be made requiring notice to be given by the person responsible for a relevant offender, to persons prescribed in regulations, of any occasion when that offender is either released or when a different person becomes responsible for that offender due to transferral.

Regulation 4 provides that where a relevant offender is transferred from one institution of imprisonment or detention to be detained or imprisoned at another such institution, a notice containing certain prescribed details must be given to the person responsible in the receiving institution, prior to the transfer of that individual.

Regulation 5 provides that where a relevant offender is released for 3 days or more, the police must be notified 14 days before release, or as soon as is reasonably practicable before the date of release. It also sets out the information that should be included in the notice.

Regulation 6 sets out who is to be treated as the person responsible for an offender in institutions of imprisonment or detention.

Regulation 7 makes provision for situations in which a relevant offender intends to reside in England, Wales or Northern Ireland, in order that the local police force receives the appropriate notice.