The Sexual Offences Act 2003 (Amendment) Bill

Transcription

1 2 MARCH 2005 The Sexual Offences Act 2003 (Amendment) Bill Bill 26 of Sir Paul Beresford s Sexual Offences Act 2003 (Amendment) Bill is due to be debated on second reading in the House of Commons on Friday 4 March It seeks to give the police specific powers to enter premises to find out whether a registered sex offender is staying there, and to search for information which would help them to assess the risk posed by a sex offender. The Metropolitan Police supports the Bill but the Association of Chief Police Officers opposes it. This Private Member s Bill reflects an amendment tabled by Sir Paul to the government Bill which became the Sexual Offences Act The amendment did not get Government support and was withdrawn. Arabella Thorp HOME AFFAIRS SECTION Gavin Berman SOCIAL AND GENERAL STATISTICS SECTION HOUSE OF COMMONS LIBRARY

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3 Summary of main points The Sexual Offences Act 2003 (Amendment) Bill [Bill 26 of ] is Sir Paul Beresford s Private Member s Bill. It takes up the issue of police powers in relation to registered sex offenders which Sir Paul had raised during debates on the Bill which became the Sexual Offences Act He would like to give the police in England and Wales specific new powers to enter premises to check whether a registered sex offender is actually staying there or to search for information which would help them to assess the risk he poses. In this he is supported by the Metropolitan Police but not by ACPO (the Association of Chief Police Officers). Sir Paul s previous attempt to introduce this new power as an amendment to the 2003 Bill did not get Government support and so was withdrawn. The Minister said that such a power was unnecessary because in his view the police already had (or would shortly have) sufficient powers, for instance if they suspected an offender had breached his notification requirements. In addition, other powers were being introduced so that the police could check the information they held about a sex offender against information given to other agencies such as the DVLA or the Benefits Agency. The drafting of the current Bill is more detailed and tightly-drawn than Sir Paul s 2003 amendment, but has essentially the same aim. It includes a set of offences relating to obstructing a police officer in the exercise of his new powers of entry and search. It would apply only to England and Wales, even though the sex offender notification requirements of the 2003 Act apply also to Scotland and Northern Ireland.

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5 CONTENTS I Background 7 II What powers do the police have? 11 A. Notification requirements 11 B. Risk assessments 13 C. Entry to premises Without a warrant In relation to an arrest Under a warrant General requirements for powers of entry 20 III Statistics 20 IV The Bill 22 A. Commentary 22 B. Police responses 23

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7 I Background Since Part 1 of the Sex Offenders Act 1997 came into force, certain sex offenders have been required to register with the police and keep them notified of any changes to their name or address for a set length of time, so that existing police records can be kept up to date. The information gathered through this process is often known as the sex offender register. Following some amendments to the 1997 Act 1 and a review of its registration requirements, these provisions were repealed and replaced by Part 2 of the Sexual Offences Act 2003 (the 2003 Act - see Part II A below). Various problems with the 1997 Act had been identified before the new arrangements were brought in by the 2003 Act, but there was little support for new police powers to visit sex offenders. A research study on sex offender registration for the Home Office, published in July 2000, had identified a perceived problem with inadequate resources for monitoring offenders, but not with the police powers themselves: Although the Sex Offenders Act confers no right of entry to the offender s home, almost all offenders co-operated with home visits. Thirty forces (70%) visited all offenders with a requirement to register. A further ten (23%) only visited those assessed as higher risk or who met some other condition. In 31 forces (78% of those conducting visits), frequency depended on the outcome of a risk assessment. 2 The review of the registration requirements of the Sex Offenders Act 1997 was set up in June 2000 by Charles Clarke, then Minister of State at the Home Office. The Review team completed its work and published its recommendations for public consultation in July The review group recognised that there was a problem with keeping an offender s details up to date, but decided that the way to deal with this was by requiring annual re-notification rather than increasing police powers to visit them: Currently, the police may only discover that the offender is not at the registered address if they undertake a periodic visit there or if he is discovered living elsewhere. It has been argued that the onus should lie on the offender periodically to confirm the registered information about them is accurate. If they do not have to register a change to their name or address, there is currently no mechanism for achieving this. In the consultation groups, there was a clear consensus in favour of requiring periodic re-registration Criminal Justice and Court Services Act 2000 Sch 5 Joyce Plotnikoff and Richard Woolfson, Where are they now? An evaluation of sex offender registration in England and Wales, Police Research Series Paper 126, Home Office, 2000, pp (vi) (vii) 7

8 The group rejected the suggestion that the police need a specific power to enter an offender s home to verify that they are living at the address given: 5 Police powers 22. Until the amendments to the SOA in the CJ & CS Act, the police had no power of arrest for failure to comply with the Act. This matter has now been rectified. Nor do they have a power to enter an offender s home to verify that they are actually living at the address given. They do, however, have their general power to apply for a search warrant when they are investigating whether a crime has been committed. It has been argued that this power of entry is necessary. There was no consensus in the consultation groups about this matter. 23. The evaluation of the Act reflected the widespread perception that, despite what one might assume to be the case, nearly all registered offenders co-operated with the police when they made home visits, although they were not required to do so. 24. We have concluded that a power of entry cannot be justified. Observing an offender and their belongings at an address one day does not mean that they will be there the next. Moreover, there are other means of confirming that an individual is living at their stated address. As a result of amendments to the SOA contained in the CJ & CS Act, the police have been given the power of arrest for offenders failing to comply with the requirements of the SOA. No further changes are proposed to police powers with respect to the Sex Offenders Act. The Government agreed with this recommendation, though two of the respondents to the review thought that the police should be given a power of entry: Comment This recommendation attracted relatively little interest from respondents. The two respondents who had reservations each questioned why a power of arrest for noncompliance with the Act, but they did not oppose the recommendation. The two respondents who did oppose the recommendation both thought, unlike the review, that the police should have a power of entry. Government Response No further changes will be proposed p23 p38 8

9 Sir Paul Beresford is however concerned that the police do not have a specific power to visit a registered sex offender, to check that his details are correct or to help them with risk assessment. This gave rise to problems for the Metropolitan police, he said by way of introduction to an amendment he tabled to the Bill which became the 2003 Act: Clause 88 Method of notification and related matters Sir Paul Beresford: I beg to move amendment No. 108, in clause 88, page 44, line 26, at end insert '( ) Where a person notifies an address in accordance with the provisions of this Act the police shall have the power to visit the offender to ascertain that the details are correct and to enable them to produce, or assist them in the production of, a risk assessment. '( ) Where subsection (5) applies it shall be the duty of the person subject to the notification requirements to cooperate with the police attending those premises.'. The aim of the registration is to enable the police to protect us. They have a duty to visit sex offenders, to check that the details on the registration are correct, and to conduct a risk assessment it is irrelevant whether they do that themselves or an agency does it, so long as it is done. Paedophiles and especially predatory paedophiles are devious and persistent. In many cases, they believe that what they are doing is normal, and that what we, the rest of the population, are doing is wrong. Anyone who saw the first two programmes of the BBC 3 series that ran six months to a year ago would be aware that not only are they devious but they can be extremely aggressive. The Metropolitan police have assessed the success and fulfilment of their monitoring procedures, and they were rather relieved to find that they had about a 90 per cent. success rate. However, the remaining 10 per cent. appears to consist of aggressive people who are determined to buck the system. The police are concerned: they do not believe they have the power to visit sex offenders at home to ensure that the details are correct or conduct a risk assessment. The amendment would give them that power and would require those on the list to co-operate fully with the police. 7 The Home Office Minister, Paul Goggins, replied that although he recognised the reason for the amendment, it would be disproportionately invasive, and in his view the police already had (or would shortly have) sufficient powers: 6 7 Home Office, Responses to the Consultation paper on the Review of Part One of the Sex Offenders Act 1997: SC Deb (B) 14 October 2003 cc343-4 (Sexual Offences Bill ): 9

10 Paul Goggins: Once again, I place on record my appreciation of the work that the hon. Member for Mole Valley (Sir Paul Beresford) has done on the taskforce on child protection on the internet. I thank him for his rigorous work and general interest in the subject. I understand the spirit in which he tabled the amendment. The amendment would give the police the power to visit a relevant offender at his notified address to ascertain whether the details provided to them were correct, and to produce a risk assessment. We have given serious consideration to the subject, which was raised during the review of the Sex Offenders Act As the hon. Gentleman will know, the review concluded that such a power was not necessary, and I continue to agree with that conclusion. However, I hope that I can say one or two things that will offer him some reassurance. First, in clause 86, we are introducing a new requirement for offenders to go to their local police station annually to confirm their notified details. Failure to make that annual notification is a criminal offence, in the investigation of which the police may, of course, under existing powers, visit the offender's home. If an offender does not make that annual visit to restate their details, that failure could become the subject of a criminal investigation, and the police would have the power to enter that offender's home. Secondly, in new clauses 15 and 16, we are proposing to provide a new power that will enable the information notified by registered sex offenders to be regularly checked against information held by other Government agencies. That will involve cross-referencing with the Driver and Vehicle Licensing Agency, for example. Any discrepancies noticed in that process will be passed to the local police for further investigation. Thirdly, the police already have a general power to apply for a search warrant when investigating whether a crime has been committed. That would include a breach of the registration requirements. There are already a number of circumstances in which police may enter an offender's home. The review of the Sex Offenders Act 1997 noted that nearly all registered offenders co-operate with the police when home visits are made. The review concluded that a specific power of entry was not justified and that there were other, less intrusive, means of confirming that an individual was living at a stated address. I hope that that helps to reassure the hon. Gentleman. On the second issue of assisting the police with risk assessments, we have already put in place the arrangements that were referred to earlier the multi-agency public protection arrangements, or MAPPA. All registered sex offenders are subject to these arrangements, and higher-risk offenders will be subject to consideration by a multi-agency panel that will look in detail at the risk they pose. Sex offenders leaving prison or beginning a community sentence are already required to attend appointments with a probation officer at which a wide-ranging risk assessment, covering all aspects of their offending behaviour and lifestyle, is carried out. 10

11 I understand the hon. Gentleman's point about the frustration that police officers may feel in carrying out their important duties in relation to the management of sex offenders if they feel that a particular sex offender is not co-operating. However, MAPPA and other arrangements are in place to help support them in the work that they do. The point has come up several times that we have to guard against providing powers that seem attractive on the surface, but would mean that the police could question any sex offender at any time. We must ensure that the public protection systems and processes are in place, but we must leave an opportunity for people to rebuild their lives in a way that is constructive and free from the kind of sexual harm that they have caused in the past. Once again, the question is one of balance. I hope that I have reassured the hon. Gentleman that we are taking his concerns into account. We feel that the relevant powers and processes will give us the level of protection that he requires. I hope that in that spirit he will consider withdrawing his amendment. 8 Sir Paul was not convinced by the Minister s reply, believing that the police do not in fact have the power to make calls on sex offenders, and that a new power would be beneficial: From the information that I have picked up, particularly from the American forces dealing with paedophiles, I have found that there is often casual calling in just to check the computers and talk to them. Those forces are able to do that because they have the power to walk in. That is much cheaper and easier than setting up a huge committee to consider sex offenders and go through the bureaucratic rigmarole, and so on. That activity picks up some surprising cases and it is preventive. The police here cannot do that and, even in spite of what the Under-Secretary said, they will not be able to do it. I would like him to think carefully about that and test it with those who have to implement the legislation, and have the duty to produce the safety that we are requiring. 9 II What powers do the police have? A. Notification requirements Part 2 of the Sexual Offences Act 2003 introduced a revised set of arrangements for the registration of sex offenders. The Home Office website sets out what it describes as the most important changes brought about by this part of the new Act: 8 9 ibid cc344-5 ibid cc

12 reducing the period within which a sex offender must notify the police of a change of details from 14 to 3 days; reducing the amount of time that a sex offender can spend at an address other than his home address before having to notify that address from 14 to 7 days; making all those on the register confirm their details on an annual basis, as at present there is no requirement for them to do so; giving the police the power to check the fingerprints and take a photograph of a sex offender each time a notification is made, not just on his initial notification; and requiring sex offenders to provide their national insurance number when making a notification. 10 In addition, sections 94 and 95 provide a power for the police (and national policing organisations) to verify that the details offenders have notified to the police match the information offenders may have supplied to other agencies (including the Department for Work and Pensions, the UK Passport Service and the Driver and Vehicle Licensing Agency). Breach of any of the notification requirements is a criminal offence. The Home Office guidance on Part 2 of the 2003 Act explains: 45 Section 91 of the Act provides that a person who is subject to the notification requirements commits a criminal offence if he fails, without reasonable excuse, to: make an initial notification in accordance with s.83(1) notify a change of details in accordance with s.84(1) make an annual re-notification in accordance with s.85(1) comply with any requirement imposed by regulations concerned with the notification of foreign travel (s.86(1)) notify the fact that a change did not happen as predicted when it had been notified in advance in accordance with s.84(4)(b) allow a police officer to take his photograph or fingerprints (s.87(4)) ensure that a young offender on whose behalf he is required by a parental direction to comply with the notification requirements attends a police station when a notification is made (s.89(2)(b)) in the first four cases set out above, if he knowingly provides false information

13 46 A reasonable excuse for failing to comply with the notification requirements could be, for example, where the offender is in hospital. However it will be for a court to decide what is a reasonable excuse in a particular case. 47 An offender convicted of such an offence on summary conviction (in a Magistrates Court) will be liable to a term of imprisonment of up to six months or to a fine or both; an offender convicted on indictment (in a Crown Court) will be liable to a term of imprisonment of up to five years. Breach of the requirements is an arrestable offence. 48 An offence is committed on the first day on which he fails to make an initial notification, periodic notification, to notify a change of details or to comply with any of the foreign travel notification requirements. The person continues to commit an offence for as long as he fails to comply with the notification requirements but he cannot be prosecuted more than once for the same failure. A prosecution for an offence may be started in any youth, magistrates or sheriff s court in the United Kingdom in a place where the subject lives or has otherwise come to the attention of the police. 11 B. Risk assessments A variety of agencies takes measures to protect the public from sex offenders, as the review of the sex offender registration scheme described: Registration of offenders is followed by an assessment of the risk they present and by identification of a plan to manage serious risks. For those offenders judged to present a serious risk of harm, this assessment is normally conducted on a multi-agency basis. [ ] under the Crime and Disorder Act 1998, sex or violent offenders may have their postrelease supervision by the probation service extended for up to 10 years in addition to their current periods of detention and supervision. an Early Warning System was introduced in April 1999 to alert the Home Office and other agencies to potentially violent or sexual offenders being released from prison or discharged from hospital. It enables risk assessments to be carried out prior to release of offenders into the community including those convicted of indecency with children. The Early Warning System has proved invaluable in promoting the safe management of high-risk offenders in the community joint work by the police and probation services to assess and manage the risk these offenders present. With the introduction of the Criminal Justice and Court Services Act 2000, this has become a statutory duty, underpinned by guidance 13

14 from the Home Secretary, with the aim of introducing the best possible arrangements which are consistent from place to place. All offenders liable to registration under the SOA will fall within the statutory duty a great deal of work is being undertaken to identify effective programmes of supervision for sexual offenders, both undertaken in prison and by the probation service following release. These are based on proven evidence of effectiveness in terms of reducing re-offending rates. 12 The police can ask offenders who are still under supervision for information to help them assess and manage the risk of re-offending. High-risk offenders, including all registered sex offenders, are subject to close scrutiny under the Multi-Agency Public Protection Arrangements (MAPPA). The Criminal Justice and Court Services Act 2000 established the MAPPA and placed them on a statutory basis. The Criminal Justice Act 2003 then re-enacted and strengthened those provisions. Essentially, the legislation requires the police, prison and probation services (acting jointly as the Responsible Authority ) in each of the 42 police/probation areas of England and Wales: to establish arrangements for assessing and managing the risks posed by sexual and violent offenders; to review and monitor the arrangements; and, as part of the reviewing and monitoring arrangements, to prepare and publish an annual report on their operation. The 2004 MAPPA Guidance sets out best practice on risk assessment and management: 13 IV. Risk Assessment 96. The assessment of risk posed by an offender, and the identification of the factors that have contributed to the offending, are the starting points for all work with offenders. For sexual and violent offenders, the approved assessment tools throughout England and Wales are OASys (Offender Assessment System) and Risk Matrix Detailed guidance as to the use of OASys has been agreed by both the Prison Service and the National Probation Service and will be in use in all Probation Areas by April 2003 and rolling out in all Prison Service establishments from April OASys is a comprehensive assessment tool that applies to all offenders but is particularly valuable for sexual and violent offenders as it will incorporate both static and dynamic aspects of risk posed by offenders. Risk Matrix 2000 is a complementary assessment tool for sexual and violent adult offenders that provides a high degree of accuracy with regard re p12 Home Office/National Probation Service, Probation circular 54/2004: The MAPPA Guidance, 14 October 2004: 14

15 conviction rates within a two year period. Both assessment tools place offenders into levels of risk low, medium, high and very high risk. While this is not the place for a detailed explanation of how OASys operates 27 because it will increasingly have a significant impact on the MAPPA offenders it is worth providing an overview of its operation and structure. Offender Assessment System (OASys) 97. OASys is a central part of evidence-based practice and helps practitioners to make defensible decisions. It underpins What Works practice with a pivotal role in assessment, case management, targeting of intervention treatment programmes, referrals to partnerships, resource allocation and risk management. OASys is designed to: assess how likely an offender is to be re-convicted; identify and classify offending related needs, including basic personality characteristics and cognitive behavioural problems; assess risk of serious harm, risks to the individual and other risks; assist with the management of the risk of harm; link the assessment to the supervision or sentence plan; indicate the need for further specialist assessments; and, measure change during the period of supervision/ sentence. 98. OASys assesses an offender s risk of reoffending by systematically examining up to 13 offending-related factors which include offending history; accommodation, education/training and employment possibilities; relationships; drug and alcohol misuse; and emotional well-being, thinking and behaviour. The offender s self-assessment, which is also a part of OASys, is a useful for two reasons. First, it reflects the accuracy of the offender s selfperception. Secondly, the relationship between their ability to recognise their own problems is linked to the likelihood of their re-offending. However, it is in the analysis of the risk of serious harm that OASys brings significant benefits to the MAPPA. By quantifying that risk of serious harm, identifying to whom it applies and in what circumstances OASys will help prioritise public protection concerns and establish the basis for risk management plans. The levels of risk of harm 99. The levels of risk of harm used by OASys are as follows: Low: no significant, current indicators of risk of harm Medium: there are identifiable indicators of risk of harm. The offender has the potential to cause harm but is unlikely to do so unless there is a change in circumstances, for example, failure to take medication, loss of accommodation, relationship breakdown, drug or alcohol misuse. High: there are identifiable indicators of risk of serious harm. The potential event could happen at any time and the impact would be serious. 15

16 Very High: there is an imminent risk of serious harm. The potential event is more likely than not to happen imminently and the impact would be serious. This provides a standardised categorisation of risk for all MAPPA offenders The categorisation of risk is refined by reference to who may be the subject of that harm. This includes: the public: either generally or a specific group such as the elderly, women or a minority ethnic group; prisoners: within a custodial setting; a known adult: such as a previous victim or partner; children: who may be vulnerable to harm of various kinds, including violent or sexual behaviour, emotional harm or neglect;. staff: anyone working with the offender whether from probation, prison, police or other agency. This relates to all forms of abuse, threats and assaults that arise out of their employment; and, self: the possibility that the offender will commit suicide or self-harm. Risk Matrix 2000, ASSET and other sources of risk assessment 101. OASys cannot provide in-depth assessment of all aspects, especially the specialist aspects of risk. It is designed to trigger further assessments in some areas relating, for example, to sex offenders; violent offenders; basic skills, drugs and alcohol; mental health and dangerous and severe personality disorder; racially motivated offending and domestic violence. Importantly, Risk Matrix 2000, the specialist assessment for sex offenders which is triggered by OASys, is an evidenced-based actuarial risk assessment that has also been approved by the Association of Chief Police Officers for use by the Police Service within England and Wales. Risk Matrix 2000 uses the same classifications of risk of serious harm as OASys and where there is any disparity between the two assessment tools in respect of the likelihood of re-conviction, the Risk Matrix 2000 risk level should take predominance It should be noted that OASys can only be used on offenders aged 18 years or over. Youth Offending Teams use ASSET assessments on young people up to the age of 18 years, and there are common elements between ASSET and OASys so that when an offender reaches 18 years information from ASSET can be drawn across to complete OASys It is important to recognise the contribution that other agencies will make to risk assessment by providing new information, their own interpretation of risk factors and their own risk or needs assessments. This is likely to be of particular importance in the context of mental health where there may be a mixture of actuarial and clinical assessments that informs the seriousness and nature of the risk posed from a mental health perspective. Clearly, access and use of this type information depends upon good information sharing arrangements with other agencies (see paragraphs 78 95, above). 16

17 104. The definitions of risk used in this Guidance to ensure greater consistency in the MAPPA are based upon OASys which is becoming the common basis of risk assessment throughout the National Probation Service and Prison Service. However, risk assessment must recognise differences the purpose of OASys is not to pigeon-hole offenders for administrative convenience: it provides a common framework a common language and system. Just as professional judgement must inform risk assessment, so it is understood that other systems of risk assessment may be used in addition to OASys. But this is not to suggest that any risk assessment tool can be used. Kemshall 28 identified, the following criteria as essential in choosing a risk assessment tool: it should be validated against a relevant offender group; be empirically grounded in the risk factors with a proven track record in the research literature; differentiate risk categories; have inter-rater reliability; and, have been validated using a UK population The Responsible Authority may therefore use other assessment tools in addition to OASys. One of the benefits of closer working relationships with other agencies in the MAPPA is that access to other forms of needs assessment are made available which can complement formal risk assessment. These assessments will be of particular importance in assessing offenders with for example, mental health or learning difficulties. Needs assessments made by colleagues in other agencies, including those in the health, education, housing and social services, can critically inform the MAPPA s assessment of the risk of harm. Ultimately formal risk assessments inform professional judgements and underpin by defensible decision-making (see section I paragraph 16-18). The key principle for MAPPA is that risk assessments undertaken by individuals within agencies should be based on the use of the tools and procedures currently approved for use within that agency. Agency protocols and procedures must be carefully adhered to and current guidance on the use of the respective tools must be followed. 27 See OASys Manual V Kemshall H. The Community Management of High-Risk Offenders: a consideration of best practice MAPPA. Prison Service Journal March Because the level and type of risk may be constantly changing, the OASys process is regularly re-applied to offenders under supervision to ensure that the risk management plan can be amended as necessary. 17

18 C. Entry to premises 1. Without a warrant Where police officers enter premises lawfully, including when they are there by invitation, they are on the premises for all lawful purposes. 14 This means that they can then carry out any lawful functions while on the premises, even if that was not the original purpose for entry. Various statutes provide for police powers of entry without a warrant, and the common law power of entry without warrant for dealing with a breach of the peace is preserved by statute In relation to an arrest Section 17 of the Police and Criminal Evidence Act ( PACE ) gives police the power to enter and search any premises to execute an arrest warrant, or to arrest a person for an arrestable offence or certain other specified offences. PACE section 24 creates three categories of arrestable offences, which are set out in a Library Standard Note. 16 Breach of the notification requirements of the 2003 Act is not an arrestable offence. Part 3 of the Serious Organised Crime and Police Bill would substitute a new section 24 of PACE allowing police officers to arrest for any offence, providing that he has reasonable grounds for believing that this is necessary for certain reasons. 17 Exercising the power of arrest for an arrestable offence currently triggers a range of other powers such as powers of entry and search for the purposes of arrest, and powers of entry, search and seizure relating to premises controlled by the arrested person. Applying the power of arrest to all offences would mean that these more intrusive powers would also be applied to all offences, but this is not the Government s intention. Schedule 7 to the Bill therefore replaces the relevant references to arrestable offences with indictable offences. The term indictable covers triable on indictment (ie with a jury in the High Court) and triable either way (ie. either on indictiment or in a magistrates court). The offence of breaching sex offender notification requirements is triable either way. Police officers also have general powers of arrest under section 25 of PACE for all offences (not just arrestable ones) where there is doubt about the identity or address of the suspect or concern over safety or further offending McLeod v Commissioner of Police for the Metropolis [1994] 4 All ER 553 Police and Criminal Evidence Act 1984 s17(6) and see McLeod v Commissioner of Police for the Metropolis [1994] 4 All ER 553 The Classification of Criminal Offences, SN/HA/1730 See Library Research Paper 04/89 pp

19 If a person is under arrest for an arrestable offence (and, in certain circumstances, for other offences), the police have powers to enter and search premises occupied or controlled by him Under a warrant Many statutes allow the police to apply to a justice of the peace for a warrant to enter and search premises where they reasonably suspect a specific crime has been or is being committed and there is evidence of that on the premises. For instance a justice may grant the police a warrant to enter and search premises to search for stolen goods, 19 indecent images of children 20 or controlled drugs. 21 PACE for the first time introduced a general power to apply for a warrant to search for evidence. However, this applies only in relation to serious arrestable offences, 22 and the justice must be satisfied that all four of the following conditions are met: there are reasonable grounds for believing that a serious arrestable offence has been committed; there are reasonable grounds for believing that there is material on the specified premises which is likely to be of substantial value to the investigation of the offence; the material is likely to be admissible at a trial for the offence; and it does not consist of items subject to legal privilege, or excluded or special procedure material. 23 If all four of these conditions are satisfied, then the justice must go on to consider whether there are reasonable grounds for believing that one or more of the following further conditions applies: it is not practicable to communicate with any person entitled to grant entry to the premises; it is practicable to communicate with such a person, but not practicable as regards the person entitled to grant access to the evidence; entry to the premises will note be granted unless a warrant is produced; or the purposes of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them PACE ss 18 and 32 Theft Act 1968 s26 Protection of Children Act 1978 s4 Misuse of Drugs Act 1971 s23 see Library Standard Note SN/HA/1730 The Classification of Criminal Offences PACE s8 ibid 19

20 The Serious Organised Crime and Police Bill would substitute the words indictable offence for serious arrestable offence here, thus allowing the police to apply for warrants in connection with the offence of breach of the notification requirements of the Sexual Offences Act Unless a specific power is given or the offence is a serious arrestable offence, the police cannot apply for an entry or search warrant in the investigation of a crime. 4. General requirements for powers of entry All warrants for entry and search must comply with the requirements of sections 15,16 and 19 of PACE. These relate to formalities of warrants, privileged material, and powers of seizure. Those powers of entry which do not depend on a warrant, or which depend on a warrant permitting, for example, inspection rather than search, will be subject only to section 19. III Statistics The number of sex offenders in England and Wales who were subject to a notification requirement has risen over the last three years to 24,572 on 31 March All of these were subject to MAPPA supervision and risk assessment for the duration of their notification requirement, as were 12,754 violent offenders and other sex offenders and 2,166 other offenders in 2003/ The Government estimates that compliance rates for those subject to notification requirements are approximately 97%. 27 In 2003/04, 854 offenders were cautioned for or convicted of a breach of their notification requirements. The table overleaf gives details of registered sex offenders and cautions/convictions for breaches of the registration/notification requirement in each police/probation area in England and Wales Schedule 7 Probation service press release, Public Protection From Dangerous Offenders Better Than Ever, 27 July 2004: HC Deb 26 January 2004 c236w 20

21 Registered Sex Offenders (RSOs) by police/probation area, England and Wales Breaches /04 Avon and Somerset Bedfordshire Cambridgeshire Cheshire Cumbria Derbyshire Devon and Cornwall Dorset Durham Dyfed-Powys Essex Gloucestershire Greater Manchester 1,158 1,278 1, Gwent Hampshire Hertfordshire Humberside Kent Lancashire Leicestershire Lincolnshire London 1,847 2,085 2, Merseyside Norfolk North Wales North Yorkshire Northamptonshire Northumbria Nottinghamshire South Wales South Yorkshire Staffordshire Suffolk Surrey Sussex Teesside Thames Valley Warwickshire West Mercia West Midlands 1,192 1,312 1, West Yorkshire 1,045 1,227 1, Wiltshire England and Wales 18,513 21,413 24, Notes: Source: MAPPA Annual Report, 2003/04 Number of RSOs at 31st March 1 1 These figures refer to the number of offenders living in the community required to comply with the notification requirements set out in the Sex Offenders Act 1997 (as amended by the Criminal Justice and Court Services Act 2000). 2 The number of sex offenders having a registration requirement who were either cautioned or convicted for breaches of the requirement, between 1 April 2003 and 31 March

22 IV The Bill A. Commentary This two-clause Bill essentially seeks to do the same thing as Sir Paul s unsuccessful amendment to the Bill which became the Sexual Offences Act It proposes amendments to the 2003 Act to give the police specific powers to enter and search - without a warrant - any premises in England and Wales which had been notified to them as the home or regular address of a registered child sex offender. The police could enter the premises to ascertain whether the offender was in fact living or staying there, and could search the premises for information which would help in the MAPPA risk assessment process. The new power would apply not in relation to all registered sex offenders. To be subject to the proposed powers the offender must: be subject to the notification requirements of the 2003 Act; 28 have been convicted of a sexual offence involving a victim who was under the age of sixteen; 29 actually have been convicted of a relevant offence, rather than cautioned, found not guilty by reason of insanity, or found to be under a disability but to have done the act charged against him; 30 be in the UK; 31 and not be in prison or detention 32 The Bill provides for offences of obstructing (without reasonable excuse) a police officer exercising one of the new powers. 33 The Bill would apply only to England and Wales, even though the sex offender notification requirements of the 2003 Act apply also to Scotland and Northern Ireland. The reference in the long title to section 67 of the Criminal Justice and Court Service Act 2000 is incorrect the correct reference (to section 325 of the Criminal Justice Act 2003) is contained in the body of the Bill new section 129A(3) of the 2003 Act, as inserted by clause 1(2) of the Bill new section 129A(4) of the 2003 Act, as inserted by clause 1(2) of the Bill new section 129A(3)(b) of the 2003 Act, as inserted by clause 1(2) of the Bill new section 129A(5) of the 2003 Act, as inserted by clause 1(2) of the Bill ibid new section 129B of the 2003 Act, as inserted by clause 1(2) of the Bill new section 129A(1)(b) of the 2003 Act, as inserted by clause 1(2) of the Bill. 22

23 B. Police responses The Metropolitan Police supports the Bill, because they feel they need more support to deal with recalcitrant offenders: This is an extremely important tool that will allow police and partners to assess and manage effectively those people on the sex offenders register. The majority of offenders comply with the registration requirements in terms of notifying police of their address (97%). There are however no real means of confirming that they physically reside at the address given, or assessing whether they are involved in offender behaviour without using extremely intrusive and resource intensive methods. A visit to the address at a reasonable time will allow us to perform some of the functions already incumbent on us through existing legislation. The power will also allow us to police restriction orders imposed by courts and prevent the current problem of offenders refusing to speak to police during their period of registration. In the main this will not affect those offenders who recognise the risk that they pose or have posed to the public. It will however provide us with legislative support to manage those that currently pose a risk and do not wish to stop. 35 The Association of Chief Police Officers (ACPO) is opposed to the Bill, and considers that it risks breaching the Human Rights Act 1998: This Amendment Bill if successful would provide the police with a specific new power to enter and search the homes of registered sex offenders who have been convicted of sexual offences against children under 16. As it stands today, ACPO and the Home Office feel that these amendments are a 'step too far' and there is a very real risk that this new power could make the notification requirements onerous that they may become disproportionate in terms of Article 8 of the Human Rights Act. 36 ACPO will be issuing new guidance on Investigating Child Abuse and Safeguarding Children at its National Child Abuse Investigation Conference on 3-4 March Metropolitan Police, 1 March 2005 Terry Grange, Chief Constable of Dyfed Powys and ACPO lead on sex offenders 23