Scottish Government

1. This report has been prepared by the Scottish Executive as a summary of the main issues arising from the consultation on the draft Sexual Offences Act 2003 (Notice of Release or Transfer) (Scotland) Regulations 2006. Under the 2003 Act those serving a sentence of imprisonment or a term of service detention or detained in a hospital are not required to make their notification within 3 days of conviction, or finding (mostly because it would not be possible to attend at a police station in such circumstances). Instead, under section 84, such offenders must make their initial notification within 3 days of their release from detention. Anyone failing to comply with the notification requirements may face up to five years imprisonment.

2. The difficulty is that if an offender is released or discharged from detention and does not register, the police will not know about it unless they are informed by the person responsible for them in detention. Whilst in some cases the police are informed by prisons and hospitals, there is no formal requirement to do so. Some offenders have therefore been released into the community and evaded the notification requirements. This means that the police cannot manage the risk to the public such offenders pose since they do not know where they are. This also has an impact on their ability to detect sexual crime. It is equally important that the chain of information on the notification requirement is not broken as the offender passes from one institution to another, even if he is not being released into the community. Otherwise the releasing establishment may itself not have the requisite information.

3. The draft Regulations therefore provide that when a relevant sex offender who is so detained is transferred or released then the responsible manager must notify the police of that move. The draft regulations provide that when released into the community, the said manager should notify the Chief Constable of the police area the offender is being released to, or if this is unknown, to the Chief Constable in the police area in which the institution that has been detaining him is located. Since it is possible that an offender may be temporarily released from such institutions for short periods of leave, it is not necessary, for the purposes of the regulations, that the chief constable be informed every time this happens. Therefore, the regulations provide that a responsible manager should only be obliged to inform the relevant Chief Constable when it is intended that the offender will be outside for a period of 3 days or more (or indefinitely).

The Consultation Exercise

4. The consultation was published in November 2005 and requested responses by 15 February 2006. The consultation was sent to police forces, local authorities, the Health Service, including medical directors, the British Medical Association, the General Medical Council, the Royal College of Psychiatrists, and the Mental Welfare Commission for Scotland. Responses were taken both electronically and in written form.

Acknowledgement

5. The Scottish Executive would like to acknowledge and thank the authorities, organisations, and individuals that took the time to consider the consultation document and lodge their responses.

Summary of responses

6. There were 24 responses received to the consultation document. 15 respondents indicated that they were fully supportive of the draft regulations, most holding to the view that they contained sensible proposals that would better protect the general public and in particular vulnerable people (including children) from the dangers posed by sex offenders. Those organisations and individuals from the medical community expressed concerns that the proposed measures raised certain ethical aspects, particularly that the regulations had the potential to breach patient/doctor confidentiality.

7. While fully endorsing the rationale underpinning the draft regulations, five of the respondents questioned why there was no proposal that required responsible persons in prison s and hospitals to inform the police of the release of a sex offender for a period of less than three days.

8. Three respondents requested that the address where the sex offender was intending to reside, if known, should also be made available to the police, as part of the notification requirements.

9. It was also suggested that other people in charge of looking after offenders following their release or transfer should similarly be informed of such moves. In this connection the respondent felt that the proposals were a missed opportunity for Scottish Prison Service, Local Authorities and health to build on existing liaison arrangements to establish effective systems for the transfer of information.

Brief Summary of Responses by Group: Police and Prison Organisations

10. 5 responses were received from the police and prison community, including police staff associations. All respondents welcomed the proposals, seeing them as formalising robust and transparent arrangements that were already in place between the Scottish Police Service and its public protection partners.

Brief Summary of Responses by Group: Local Authorities

11. 10 responses were received from local authorities, representing Social Work, Criminal Justice, and Children and Families Departments. Seven of them confirmed that they were content with the proposals outlined in the consultation. Two expressed surprise that the draft regulations did not include a requirement to provide the address to which the relevant sex offender was to be released or transferred. While welcoming the draft measures, one respondent felt that the opportunity had been missed to build on existing arrangements by not placing a similar requirement on responsible persons in prison and hospital to inform other authorities, such as local authority social work departments, when a relevant sex offender was being discharged from hospital.

Brief Summary of Responses by Group: Health Organisations

12. 6 health organisations replied to the consultation exercise. Two of these organisations indicated that they did not wish to comment on the proposals. However the majority of the health community that did comment were at pains to highlight the ethical aspects that were raised by the proposals. They explained that the principle of confidentiality underpinned all clinical services, in particular those which hold sensitive personal information concerning individuals. It was also made clear that most clinicians were required to operate in a climate of confidentiality for good reason.

13. A number of clinicians and health organisations made the point that for the proposals to operate effectively it would be important that hospitals, particularly Medical Records Departments, have in place systems that alerted them to the fact that they needed to contact the police. It was also pointed out that the police or court authorities should introduce similar systems that alerted the hospital that such an offender was being detained.

Brief Summary of Responses by Group: Other Interested Organisations

14. Five responses were received from other interest groups, mainly representing children's organisations and the legal profession. The children's organisations welcomed the proposed measures, holding to the view that they would better enable the police to monitor and manage sex offenders within the community. Two respondents did query why, given the predatory nature of many sex offenders, there was no proposal that required responsible persons in prison and hospitals to inform the police of the release of a sex offender for a period of less than three days. These respondents also made the point that the address where the sex offender was intending to reside, if known, should also be made available to the police, as part of the notification requirements.

Conclusion

15. In light of the comments received the Executive lodged amendments in the Police, Public Order and Criminal Justice (Scotland) Bill that will amend section 96 of the Sexual Offences Act 2003 (information about release or transfer) so that the regulations made under that section can specify the type of personal information about a relevant sex offender that a person responsible for that offender whilst in prison or hospital must provide to the police and the person who becomes responsible for them, if they are released or transferred to another institution. The amendment also provides that the person who is responsible for the offender can give a photograph of the offender to the police or other relevant persons upon the transfer or release of the offender.

16. The effect of the amendment is that regulations made under section 96 can set out the range of information that a responsible person should notify to the police and other relevant persons (if they have this information). This will enable the police and other relevant persons to get information and photographs that will enable them to identify the offender and know of his or her whereabouts. For example, the regulations will provide that a responsible person can advise the police of the address at which the offender is intending to reside following his release or transfer from prison or hospital.

17. The Executive also took cognisance of the desirability of the police being informed of transfers and releases of less than 3 days. Notwithstanding the arguments made for such a reduction the Executive is not minded to make any change. The 3 day trigger point is the period within which relevant sex offenders have to make a notification under section 83 (1) or 84 (1) (d) of the Sexual Offences Act 2003. Therefore the police need to know about the release so that they can ensure the notification requirements are enforced. Regardless of the period of temporary release, the releasing institution having regard to all the associated risks will have responsibility for the offender and managing the risks they may pose to the public.

Annex A

List of those who responded to the consultation

1. South Ayrshire Council
2. Health Protection Scotland
3. Head of Health, Scottish Prison Service
4. East Dunbartonshire Council
5. Eighteen and Under
6. Association of Chief Police Officers in Scotland
7. General Medical Council
8. Psychiatric Advisory Committee, NHS, Greater Glasgow
9. East Ayrshire Council
10. The Association of Scottish Police Superintendents
11. Aberdeenshire Council
12. Edinburgh City Council
13. Scottish Police Federation
14. Fife Council
15. Rehabilitation and Care Directorate, Scottish Prison Service
16. Dundee City Council
17. Glasgow Learning Disability Partnership
18 Director of Forensic Mental Health, Glasgow Polmont
19 The Law Society of Scotland
20 East Renfrewshire, Inverclyde and Renfrewshire Criminal Justice Group
21 Angus Council
22 NCH Scotland
23 Forensic Section, Scottish Division, Learning Disability Partnership