Press Release in
relation to these pages, 06 September, 2001:
Cyber-Rights & Cyber-Liberties (UK) released further information in relation to the activities of the Internet Task Force on Child Protection which was set up by the Home Office in March 2001. The documents at http://www.cyber-rights.org/foia/task_force/ provides information that has been received from the Home Office under the Open Government Code of Practice process. A letter from the Home Office to the members of the legal profession and civil liberty bodies request comments in relation to the preliminary proposals (New Criminal offence & Civil Order) developed by the Scrutiny of the Criminal law Subgroup of the Home Office Internet Task Force on Child Protection in August 2001. The letter suggests that comments are requested by 28 September, 2001 by the Sentencing and Offences Unit of the Home Office.
"We believe in openness and transparency of any government policy-making process and we are puzzled by the fact that a proper and open consultation was not deemed necessary by the Internet Task Force on Child Protection and by the Home Office in relation to the controversial proposals involving a new criminal offence (meeting a child with intent to engage in sexual activity) and a civil order. We are not sure who has received the following letter and the related information but the Home Office seems to persistently exclude public interest groups from consultation on important Internet related policy initiatives." Yaman Akdeniz, Director, Cyber-Rights & Cyber-Liberties (UK).
& Cyber-Liberties (UK) letter
to the Home office, May 2001 (unanswered)
Cyber-Rights & Cyber-Liberties (UK) Open Government Code of Practice Request, July 2001.
Letter from the Home Office to the members of the legal profession and civil liberty bodies - see below
Preliminary Proposals - New Criminal offence & Civil Order - see below
On 07 September, 2001
the Home Office website was updated to include the following information:
A website for the Internet Task Force
The recommendations that the Task Force made in an interim report to the Home Secretary on the 19 July ?001
Internet Taskforce Press releases
Internet Taskforce Members
Internet Taskforce Links page
But note that the Home Office pages do not include the information obtained and provided by Cyber-Rights & Cyber-Liberties in these pages.
Yahoo News, Internet 'grooming' legislation faces delays, 02 October, 2001.
The Taskforce aims are:
To review Internet content rating systems and develop a "kitemarking" scheme for Chat Rooms which deliver child friendly services.
To develop "safe surfing" education and awareness campaigns for parents and children.
To enhance co-operation between police and communications service providers.
To enhance co-operation between the police and communications service providers in the course of their investigations.
To review existing legislation to ensure that the law continues to protect children from ‘grooming? and other forms of abuse and keeps in step with changes in technology.
Our Ref DMG/SMcK/D03/0093
Date August 2001
I am writing to invite your comments on possible changes to the law to deal with the problem of those who "groom" children with the ultimate intention of meeting them to commit a substantive sex offence.
I am sure you will be aware of widespread and increasing public concern about protecting children from predatory sex offenders particularly where they use the Internet as a means of grooming a child. In response to this concern earlier this year a Task Force on Child Protection on the Internet was set up to consider the problem. The Task Force reported to the Home Secretary in July with proposals for tackling "grooming" activity on- and off-line. In particular, the Task Force proposed a new criminal offence relating to a meeting with a child with intent to commit a sex offence; and a new civil order to protect children from an adult making contact with them for a harmful or unlawful sexual purpose, whether by email, in Internet chat rooms, or by the school gates. It is these proposals which I would now like to invite your comments on ?details of them are set out in the enclosed paper.
Before making its proposals the Task Force considered whether the present criminal law could adequately address the concerns about grooming but concluded that it could not. Therefore we considered what could be done without, for instance, interfering with the present law on attempt - which would have much wider implications than the specific mischief we are trying to address. You will see therefore that we propose a new narrow criminal offence of "meeting with intent" (to which we envisage the Criminal Attempts Act 1981 would apply). However we also recognised that there was other worrying kinds of behaviour towards children but which would not justify the intervention of the criminal law ?which is why a civil restraining order has been proposed. I should also mention that we will be considering whether any amendment to the Protection from Harassment Act might achieve the same result.
We would very much welcome any comments you and others in the legal profession may wish to make on these proposals. I am afraid that because of the urgent need to take action in this area we need your comments rather more quickly than we would normally ask for them. I appreciate this is not ideal from your point of view and may cause difficulties. I apologise for this but would be grateful if you could provide me with any response by no later than Friday 28 September. Please let me know if this will cause difficulty.
Thank you in advance for any help you are able to offer us with these measures.
Sentences and Offences Unit, 50 Queen Anne's Gate, London SW1H 9AT
By the Scrutiny of the Criminal law Subgroup of the Home Office Internet Task Force on Child Protection - August 2001
POSSIBLE NEW CRIMINAL OFFENCE:
Meeting a child with intent to engage in sexual activity
The proposed elements of the potential new offence would be:
Actus Reus (Acts)
An adult (18 or over) meets with a child (see mental element regarding "child"), and
that meeting forms a stage in a course of conduct that has included previous communication with the child
Mens Rea (Mental Elements)
The adult knew or has reason to believe that the child was under 16,
the adult intended to have unlawful sexual activity with that child at that meeting or on another occasion, and
the adult had engaged in the course of conduct at least in part for the purpose of facilitating unlawful sexual activity with the child.
Mode of trial and penalty
Sex offending against children is serious criminal activity. It is proposed the offence should be triable either way with a maximum penalty on indictment of 5 years in prison, an unlimited fine, or both. This level of penalty would carry with it powers of arrest.
This proposal is still at a preliminary stage, and further research needs to be done on comparable and related offences (in the interests of consistency and coherence), and on checking ECHR compatibility.
The "mischief" that we are trying to address here is where an adult specifically grooms a child for the purpose of engaging in sexual activity with that child. Grooming means a course of conduct (more than one incident) that includes communication with the child, where the offender establishes a degree of confidence and friendship with the child, with the intention of having sexual activity with the child. The offence would apply equally online and offline.
This offence is not intended to deal with indecent or obscene communications or images per se, as we are separately examining whether the law on that has any gaps in it. In practice, there would often be an overlap, where an offender could be guilty of both the grooming offence and also, if appropriate, indecent/obscene communications offences. Moreover sending a child obscene images could form part of the course of conduct that goes to make up the grooming offence.
The grooming offence is also not intended to deal with situations of procurement, where a person seeks a child for sexual activity (whether paid or not), but has no prior communication or grooming relationship with that child. Procurement of a girl for sexual intercourse is already covered by the criminal law, and although the present offence needs to be extended (to protect all children under the age of consent and to cover all sexual activity), this is a ‘tidying up?exercise that we are looking at in the Sex Offences Review context. It does not raise issues of principle on the proper scope of the criminal law.
The general law of attempts would apply to the criminal offence, so that if a meeting were arranged, and the adult had set off to that meeting (ie had gone beyond mere preparatory steps), they would be guilty of an attempt. Similarly, there would be an attempt if the "child" was in fact an adult police officer, as one can attempt the impossible.
The prosecution would need to prove all of the elements of the crime, using admissible evidence (this would not normally include e.g. hearsay, previous convictions, unreliable confessions, opinion evidence, and so on).
Sex Offenders Act 1997
We suggest that this offence should have with it a registration requirement under the Sex Offenders Act 1997.
PROPOSED NEW CIVIL ORDER
Order designed to cover a situation where an adult engages in a course of conduct with a child for an illegal or harmful sexual purpose
The proposed elements of the new civil order would be:
Which a reasonable person would consider was for
(a) an unlawful sexual purpose relating to a child or children; or
(b) a sexual purpose relating to a child or children that puts a child (or children) at risk of [serious/significant] harm.
If these elements could be proved the court could prohibit the respondent from engaging in [certain] specified types of activity e.g. entering children’s chatrooms, or watching children in playgrounds and offering them gifts. The prohibitions would need to be justified as those necessary to protect the child/children in general from [serious/significant] harm.
The order could be finite or indefinite in duration. Variation and discharge would be provided for, plus an appeal mechanism etc. Application for the order would be made by the police [ or perhaps by private individuals] to the magistrates?court sitting as a civil court.
the order should not apply to situations where the course of conduct was for a lawful sexual purpose and not harmful eg meeting for education or medical advice, or in the best interests of the child ?ie a defence should effectively be provided where the purpose was lawful;
the penalty for breach of the civil order could be a criminal offence attracting a maximum penalty of perhaps of up to 5 years imprisonment.
This proposed new civil restraining order at a very preliminary stage and we are seeking a consensus with other Departments which have an interest in civil orders, such as LCD and checking for its ECHR compatibility.
The proposed order is intended to complement the new criminal offence and deal with situations, either on line or off line, where an adult makes contact with a child either for an unlawful sexual purpose or for some sexual purpose which puts the child at risk of [serious/significant] harm. This would include situations where grooming is taking place but go wider. For example it might cover where the child is being sent sexual material (verbal or visual) to encourage it to take part in ‘cyber sex?even though no meeting is ever intended by the adult, and in the offline context where an adult is advertising generally (eg in a public toilet) for children to meet up with him for sexual activity.
There are two possible triggers for the civil order. The first involves an unlawful sexual purpose, meaning that the purpose of the conduct is geared towards unlawful (ie criminal) sexual behaviour, whether that be indecent communication, indecent exposure, or sexual activity. The second trigger involves a sexual purpose that may not involve criminal behaviour per se, but that does put a child at risk of significant harm This might be the exchange of nude photographs, or cybersex, or sexual communication that does not amount to an indecent communication offence. It might include following a child, and photographing that child.
The civil order would differ from the criminal offence in that for civil matters there is a lower standard of proof (on the balance of probabilities, rather than beyond reasonable doubt), and a significantly lower threshold for the admissibility of evidence.
Like the criminal offence the order should only be available for use against those aged 18 or over - we do not wish to catch normal teenage conversation which may well be sexual; this could help in justifying the proportionality of the measure as a whole.
Similarly like the criminal offence we propose that any civil order should involve a course of conduct ie more than one incident, that e.g. might includes communication with the child or children.
Unlike the criminal offence however we consider that any civil order should not be tied to any meeting nor to pure sexual activity as such. If it could only be available if it had to be proved a meeting was attempted or intended this would be too restrictive ?it could fail to deal with a good deal of worrying behaviour by the adult where no meeting had been proposed. Similarly an adult might engage in conduct with a child where it could not be proved that ultimately sexual activity was intended but where the adult was engaging in the conduct for a sexual purpose eg early grooming; cybersex, exchange of nude photographs.
OVERLAP BETWEEN THE PROPOSED CIVIL RESTRAINING ORDER AND NEW CRIMINAL OFFENCE
The civil order would not require proof that either
The reasons for this are set out above but essentially the civil order is meant to deal with a course of conduct which objectively presents a danger to children but which precedes any attempt at a meeting or sexual activity. The criminal offence is intended to "kick in" once the adult gets as far as setting out to a meeting. Examples of where the civil order and/or the criminal offence might be used are set out in the attached table.
Nevertheless we envisage that there could and should be some overlap between the proposed civil order and criminal offence. The overlap would be not just with the new criminal offence, but with existing criminal offences too, for example the indecent communications offences. The reason for this is that while a meeting is not essential for the civil order it could cover a situation where a meeting is arranged and perhaps even embarked upon but where realistically the evidence was such that there would be little probability that the intent to engage in sexual activity could be proved. A civil order could be sought if the police considered that there was sufficient evidence to prove this lower threshold. In addition, where the police decided to go for a criminal prosecution, this could be coupled with the civil order to provide prohibitions on his conduct. In addition while the maximum penalty for the criminal offence would be five years, in some cases the court might not impose a custodial sentence and the availability of a restraining order could be very useful.
There is a useful precedent for a civil/criminal approach in the Protection from Harassment Act 1997 where there is an overlap between the two areas of law. Section 1 and 2 make it a criminal offence to pursue a course of conduct which amounts to harassment and section 3 provides for a civil injunction where damages are sought against the harasser, without the need for a criminal conviction.
Whether it would be appropriate for breach of the civil order to attract a registration requirement under the Sex Offenders Act 1997 will be considered as part of the review of that Act currently underway.