Prevention as the cure

Alison Cleland, in the Stair Memorial Encyclopaedia reissue of Child and Family Law (2004, para 499), suggests that the introduction in the Children (Scotland) Act 1995 of exclusion orders heralded a shift in the civil law’s focus on the child, and is evidence of what she calls “the rise of prevention and proactivity”. This is seen also in the “parenting orders” provisions of the Antisocial Behaviour etc (Scotland) Act 2004, which are aimed at making parents better at bringing up their children. A similar shift in focus from reaction to prevention is also evident in recent legislation on the criminal law. The two parliaments have recently enacted various pieces of legislation aimed at both offenders and potential offenders against children. The Sex Offenders Act 1997, for example, obliged persons convicted of sex offences (both common law and statutory) to register with the police, so that their movements could be more readily traced (in the belief that recidivism by this type of offender is more common than with other offences). These rules are now contained in Part II of the Sexual Offences Act 2003 (the part that applies to Scotland). The Crime and Disorder Act 1998 allows the chief constable to seek an order from the sheriff restricting the activities of a convicted sex offender if there is reasonable cause to believe that this is necessary to protect the public from serious harm.

Acting ahead of conviction

The preventive approach is the underlying basis also of the Protection of Children (Scotland) Act 2003, which obliges Scottish Ministers to keep a list of individuals whom they believe to be unsuitable to work with children, and obliges various organisations to refer to the list before deciding whether to employ someone in a post involving work with children. Like exclusion orders under the Children (Scotland) Act 1995, but unlike the provisions referred to above, this list can affect those who merely come under suspicion of child abuse and not just those convicted of it. The justification is the same as for exclusion orders: it is perceived to be more important to take action that might prevent children from being harmed than to ensure that an adult is not subjected to restrictions in his or her liberty which are, in the event, unnecessary.

It is this same thinking that underlies the Scottish Executive’s latest proposals, contained in the Protection of Children and Prevention of Sexual Offences (Scotland) Bill, introduced in the Scottish Parliament on 29 October 2004. This will make it an offence to meet or travel to meet children for the purpose of committing a sexual offence, following “grooming behaviour”. “Grooming” is the new word to describe activities which in themselves are legally (and indeed socially) innocuous but which are carried out with malign intent. Typically it involves an adult befriending a child and building up some trust in the child, but with the intention that the trust be cruelly abused by leading the child to unlawful sexual behaviour. The bill does not use the term “grooming”, but it defines the conduct it seeks to criminalise fairly precisely. A person aged over 18 (an “adult”) will commit an offence if he or she (i) has met or communicated with a person under 16 (a “child”) on at least two occasions, (ii) intentionally meets the child or travels with the intention of meeting the child, and (iii) intends to do anything with the child that would amount to any of the listed sexual offences. For the offence to be committed the adult must not reasonably believe the child to be over 16, and there must be a relevant connection with Scotland. So the offence is committed if there is “grooming”, which is constituted by any meeting or communication with the child more than once, a bad intent, and some action which is designed to put that bad intent into action.

Proof of the pudding

The first element is much wider than “grooming” as normally understood. Simply to meet with or to communicate with a child does not indicate that trust is being built up with the intention of exploiting that trust for sexual purposes. Most adults meet and communicate with children on a very regular basis. It is when this is done with malign intent that, in common parlance, one might describe meeting with and conversing with a child as “grooming”. However, the bill does not require that the meeting or communicating be done with intent to abuse, but merely that there be, in addition to meeting or communicating, an intent to abuse. Both elements must exist, but the bill does not require a causal connection between them. It follows that the crucial factor – the element that turns an everyday activity into a criminal offence – is intent.

The bill does not indicate how prosecutors will be able to prove intent, but the consultation document that preceded it suggested that intent may be inferred from the nature of the communication between the adult and the child, or from other circumstances such as the adult having condoms and lubricants in his possession when he travels to meet the child. In the absence of a sexually explicit communication, in which the adult expresses his intention (unlikely in the case of true grooming in which trust is being built up, and almost certainly a criminal offence in any case), it is difficult to see how a prosecutor could ensure a conviction merely through the possession of articles associated with sexual activity, for there will always remain a reasonable doubt that the articles were possessed for the purposes of sexual activity with another adult and not with a child. It may be that the only practical effect of this provision is to remove any doubt that sexualised communication with children is an offence.

Further action against an individual who has not been convicted of any criminal offence is proposed in the bill. It creates a new civil order, a “risk of sexual harm order”, based on the English precedent contained in the Sexual Offences Act 2003, which can be made by a sheriff, on application by the police, over an adult who has done one or more of various listed acts on two or more occasions which, though criminal in themselves, may or may not in fact have led to the adult being prosecuted. The order will prohibit the adult from doing the act again, and breach of the order, without reasonable excuse, is a criminal offence. As a civil order, the doing of the acts may be proved on the balance of probabilities, and so the major effect of the creation of this new order is to lower the standard of proof required for action to be taken against an adult who is thought to pose a risk to children.

Shaky foundations

There is no doubt that as a society we are much more conscious of the dangers of sexual exploitation of children, and it is of course right that we be proactive in seeking to prevent harmful exploitation. But important principles of the criminal law should not be sacrificed. An effective lowering of the standard of proof is worrying, as is the proposition that intent (even as wicked as to indulge in sexual abuse of children) is in itself worthy of punishment. A more pressing issue than the creation of new offences of dubious import and little likely effect is the updating of our ludicrous collection of existing sexual offences against children. Boys are given less protection than girls; same-sex sexual activity is treated more harshly than opposite-sex sexual activity; the law’s understanding of “sexual activity” is too often limited to penile penetration of the vagina; marriage decriminalises unlawful abuse. Part I of the Sexual Offences Act 2003 is a model from England (albeit from a very different background) for the Scottish Executive to use to produce a criminal code of sexual offences which is gender-neutral, sexuality-neutral and (in Professor Thomson’s fecund phrase) organ-neutral. The Scottish Law Commission has undertaken this as one of its imminent projects and getting the basic criminal law right will provide a more robust basis upon which to build an effective system for protecting children from sexual exploitation and harm.

Kenneth McK Norrie, University of Strathclyde