States Meeting Transcript - 08/10/2009

STATES OF JERSEY

OFFICIAL REPORT

THURSDAY, 8th OCTOBER 2009

PUBLIC BUSINESS – resumption ...............................................................4

1. Draft Sex Offenders (Jersey) Law 200- (P.132/2009) - continued .......................4

1. Senator B.I. Le Marquand (The Minister for Home Affairs): ............................4
2. Senator B.I. Le Marquand:...............................................................4

1. Deputy M. Tadier of St. Brelade:........................................................6
2. Senator B.I. Le Marquand:...............................................................6
   3. Senator B.I. Le Marquand:...............................................................6

1. Deputy K.C. Lewis of St. Saviour:.......................................................7
2. Senator B.I. Le Marquand:...............................................................7

4. Senator B.I. Le Marquand:...............................................................7

1. Deputy A.T. Dupre of St. Clement:......................................................8
2. Deputy R.C. Duhamel of St. Saviour:....................................................8
3. Deputy M. Tadier :.......................................................................8

4. Deputy T.M. Pitman of St. Helier:.......................................................9
5. Deputy J.A. Martin of St. Helier:.......................................................10
6. Connétable P.F.M. Hanning of St. Saviour : ............................................10
7. Senator B.I. Le Marquand:..............................................................10 Mr. W.J. Bailhache Q.C., H.M. Attorney General:............................................11 Deputy J.A. Martin:..........................................................................12 Deputy M. Tadier : ............................................................................13 Deputy P.J. Rondel of St. John:...............................................................13

5. Senator B.I. Le Marquand:..............................................................15

1. Connétable D.W. Mezbourian of St. Lawrence:........................................16
2. Deputy R.G. Le Hérissier of St. Saviour:...............................................16
3. Deputy R.C. Duhamel: .................................................................16
4. Deputy A.E. Jeune of St. Brelade:......................................................16
5. Deputy M. Tadier :......................................................................16
6. The Attorney General:..................................................................17
7. Senator B.I. Le Marquand:..............................................................17

6. Senator B.I. Le Marquand:..............................................................19

1. Deputy M. Tadier :......................................................................20
2. Deputy T.M.Pitman:...................................................................20
3. Senator B.I. Le Marquand:..............................................................20

7. Senator B.I. Le Marquand:..............................................................21

1. Connétable G.F. Butcher of St. John:...................................................22
2. Deputy R.G. Le Hérissier: ..............................................................22
3. Deputy K.C. Lewis :....................................................................23
4. Deputy M. Tadier :......................................................................23
5. Deputy T.A. Vallois of St. Saviour:....................................................23
6. Senator B.I. Le Marquand:..............................................................24

8. Senator B.I. Le Marquand:..............................................................27

1. Deputy T.M.Pitman:...................................................................27
2. Deputy K.C. Lewis :....................................................................28 The Attorney General:........................................................................28
3. Senator B.I. Le Marquand:..............................................................28

9. Senator B.I. Le Marquand:..............................................................29

1.9.1 Deputy R.G. Le Hérissier: ..............................................................29

2. Draft Amendment (No. 12) of the Standing Orders of the States of Jersey (P.133/2009) ...........................................................................................31

1. Connétable J. Gallichan of St. Mary (Chairman, Privileges and Procedures Committee): .........................................................................................31
2. The Connétable of St. Mary:............................................................31

1. Deputy D.J.A. Wimberley of St. Mary:.................................................32
2. The Connétable of St. Mary:............................................................32
   3. The Connétable of St. Mary:............................................................33

3. Draft Protection of Children (Cigarette Lighter Refill) (Jersey) Regulations 200- (P.134/2009)..............................................................................33

1. Senator A.J.H. Maclean (The Minister for Economic Development):...................33

1. The Deputy of St. John:................................................................33
2. Senator B.E. Shenton:..................................................................34
3. The Deputy of St. Mary:................................................................34
4. Deputy K.C. Lewis .....................................................................34
5. The Connétable of St. Saviour:.........................................................34
6. Deputy M. Tadier :......................................................................34
7. Senator A.J.H. Maclean:................................................................34

2. Senator A.J.H. Maclean:................................................................36

3.2.1 Deputy G.P. Southern of St. Helier:....................................................37 Deputy J.M. Maçon of St. Saviour (Economic Affairs Scrutiny Panel):.......................38

4. Composition and election of the States: abolition of 6 Senatorial positions in 2011 (P.138/2009)..............................................................................38

4.1 Deputy A.E. Jeune :.....................................................................38

1. Deputy A.K.F. Green of St. Helier:.....................................................39
2. Deputy F.J. Hill of St. Martin : ..........................................................40
3. The Deputy of St. John:................................................................40
4. Deputy G.P. Southern :..................................................................40
5. Deputy A.T. Dupre:....................................................................40
6. The Deputy of St. Mary:................................................................40
7. Senator P.F.C. Ozouf :..................................................................41
8. Deputy S. Power of St. Brelade : ........................................................41
9. Deputy R.G. Le Hérissier: ..............................................................42
10. Deputy T.M.Pitman:................................................................42
11. The Connétable of St. Mary : ........................................................43
12. Deputy M. Tadier :...................................................................43
13. Senator J.L. Perchard: ...............................................................44
14. Senator S.C. Ferguson:..............................................................44
15. Deputy A.E. Jeune : ..................................................................44

5. Statistics User Group: re-appointment of Chairman (P.149/2009)....................44

5.1 Senator T.A. Le Sueur (The Chief Minister):...........................................45

1. The Deputy of St. Mary:................................................................45
2. Deputy G.P. Southern :..................................................................45
3. Senator A. Breckon: ....................................................................45
4. The Connétable of St. Lawrence:.......................................................46
5. The Deputy of St. John:................................................................46
6. Connétable K.P. Vibert of St. Ouen:....................................................46

7. Senator T.A. Le Sueur:.................................................................47

6. Jersey Police Complaints Authority: appointment of Chairman and members (P.150/2009)..............................................................................48

6.1 Senator B.I. Le Marquand (The Minister for Home Affairs): ...........................48

1. The Deputy of St. Martin:..............................................................49
2. The Deputy of St. John:................................................................50
3. Senator B.I. Le Marquand:..............................................................50

7. Draft Public Holidays and Bank Holidays (Jersey) Act 200- (P.151/2009 .............51

7.1. Deputy J.A.N. Le Fondré of St. Lawrence (Assistant Minister, Chief Minister's Department - rapporteur):..............................................................51

1. Deputy J.A. Martin:....................................................................51
2. Deputy A.K.F. Green:..................................................................51
3. Senator B.I. Le Marquand:..............................................................52
4. Deputy T.M.Pitman:...................................................................52
5. The Connétable of St. Saviour:.........................................................52
6. Deputy A.T. Dupre:....................................................................52
7. The Deputy of St. John:................................................................52
8. Senator T.A. Le Sueur:.................................................................52
9. Deputy M. Tadier :......................................................................53
10. Senator A. Breckon:.................................................................53
11. Deputy A.E. Jeune : ..................................................................53
12. Deputy J.B. Fox of St. Helier : .......................................................53
13. Senator S.C. Ferguson:..............................................................54
14. Senator P.F.C. Ozouf : ...............................................................54 The Attorney General:........................................................................55
15. The Deputy of St. Mary:.............................................................55
16. Deputy M.R. Higgins of St. Helier:..................................................56 The Attorney General:........................................................................56
17. Senator J.L. Perchard: ...............................................................56
18. Deputy J.A.N. Le Fondré: ...........................................................56

ARRANGEMENT OF PUBLIC BUSINESS FOR FUTURE MEETINGS ....................58

8. The Connétable of St. Mary (Chairman, Privileges and Procedures Committee):.......58

1. The Connétable of St. Helier:...........................................................58
2. Deputy M.R.Higgins:..................................................................58

ADJOURNMENT................................................................................59

The Roll was called and the Dean led the Assembly in Prayer.

PUBLIC BUSINESS – resumption

1. Draft Sex Offenders (Jersey) Law 200- (P.132/2009) - continued

The Deputy Greffier of the States (in the Chair):

The Assembly resumes consideration of the Draft Sex Offenders (Jersey) Law in the name of the Minister for Home Affairs. Now, the principles have been adopted. The Scrutiny Panel has agreed it does not wish to look further at the law. So we move to the principles. How do you propose to take the principles, Minister?

1. Senator B.I. Le Marquand (The Minister for Home Affairs):

I sense that I may be pushing here to a relatively open door, so I think I will attempt to take this by parts until I run into difficulties.

The Deputy Greffier of the States (in the Chair): So you will start with Part 1?

Senator B.I. Le Marquand:

Start with Part 1 which is Articles 1 and 2. Article 1 is the interpretation section which has definitions of various different words which have particular meanings in the context of the law as a whole. It also deals with offences in terms of widening out the meaning of Article 2 to attempts and aiding and abetting and things of that nature. I will not go into any further detail. Article 2 is the sexual offences to which this law applies. Now this is a pretty well comprehensive list of all the existing sexual offences in Jersey but there are some safeguards which have been built in because there are certain sexual offences such as gross indecency which have various different forms and some of the forms would not be appropriate that the committing of the offence would lead automatically to being subject to notification requirements, so there are various different safeguards in relation to that and also technical issues on the law of sodomy. But I think that is all I wish to say at this stage.

The Deputy Greffier of the States (in the Chair):

Are Articles 1 and 2 seconded? [Seconded] Would anybody like to speak on Articles 1 and 2? We will go to the vote then on Articles 1 and 2. All Members kindly show, those in favour. Those against. Articles 1 and 2 are adopted. Moving on to Part 2, Senator.

2. Senator B.I. Le Marquand:

Article 3 is a very important Article because this deals with the persons who are subject to notification requirements. This is the core of the system and there are a whole variety of different routes by which people can come into that. The primary route is in 3(1) which is where a person is convicted in Jersey of an offence set out in Article 2. The secondary route will be a situation which a person is subject already elsewhere in the British Islands to notification requirements and to the system, and they then come to Jersey. They then have got to report and declare themselves and so on. After that there is a whole mass of different routes in which, broadly speaking, are there to deal with either offences committed outside the Island or offences committed before the law came into existence or offences which have been declared by another court or which can be declared by Jersey as sexually aggravated. The point here is that you might have an offence which was not a sexual offence within Article 2 or the equivalent of that, but nevertheless there was a strong sexual element which warranted it being brought in. In relation to most of the later examples of routes in, there is a requirement for a court order and also in the case of some of them, there is also a requirement that the people are found to constitute a risk to particular individuals or to a group of individuals. I will say no more at this stage. I could have spent hours on this and indeed have, already. Article 4 deals with the Court having powers to exempt persons from notification requirements. This is dealing with some of the more minor offences which are in Article 2 but, in

fact, can be anything or nothing, and a very good example of that would be indecent exposure, because indecent exposure can be a relatively minor offence caused by some mental frailty or temporary madness on the part of a person or if it is to children, or something of that nature, it could be really quite serious. So Article 4, in relation to the offences set out there, gives the courts, when sentencing, the power to say: "This person will not have to be subject to notification requirements because this is not serious enough to warrant that." Article 5 deals with the period during which people will be subject to notification requirements and a Court must set this period when sentencing or when a person comes into notification requirements via various different routes. Now the general principle that has been followed here is that the Court would set a minimum period of 5 years. It can set a lesser period but then has to give reasons. The period of 5 years is a period before a person can make application to no longer be subject to notification requirements. So if they do not make application or if the Attorney General does not make application, they will continue to be subject, although such applications can be made. I now need to deal with a point which was raised by Deputy Le Hérissier, who is not here at the moment, yesterday, the research in relation to the work which was done by the Scrutiny Panel as to why we have a different system. The Scrutiny Panel was correct that in the U.K. (United Kingdom) the system is that normally the notification periods are the same length as the period under the Rehabilitation of Offenders Law. That is absolutely correct. But the difference we have here, as the Attorney General explained yesterday, is that the English law did not attempt a catching up process whereas we are. We want to be able to go back. We have 35 people we think are high risk in relation to serious offences and so we have a different sort of system. We do not have a system where people are just coming in for the first time. We have got a system where we are looking back, and that of course then will throw the timings completely out as compared with the rehabilitation of offenders. I gave reasons why I did not agree with the Scrutiny Panel on this, which merit those given by the Attorney General. But I needed to cover this point, it having been raised yesterday. There are masses more detail on Article 5 but I will pass over that. Article 6 deals with the notification requirements, although in simple terms, a person who is subject to notification requirements must notify an authorised officer, who is a police officer authorised by the Chief Officer for that purpose, as to their home address and if the home address changes there are provisions as to how they keep that up to date, and also as to each name the person uses. They also have to notify of any attention to travel outside the Island and, again, there is a mass of detail which flows from that, technical detail about where and when a person notifies, what happens if they are in hospital or cannot notify at a particular time and provisions for all these kind of things. Again, I pass over a mass of detail. Article 7 contains additional requirements. The additional requirements are there so the police officers can check the identity of a person or utilise things like fingerprints or D.N.A. (Deoxyribonucleic acid) samples or photographs for purposes of identification in relation to suspicion of crimes, so this is part of the system of having such information available on the individuals who are subject to notification requirements and, again, there is this information as to when items can be shared. The system remains subject to the Data Protection Law and there are offences which are created in relation to that, indeed I should have mentioned there are offences also created for failures to comply with the notification requirements. Article 8 is the notification requirements for travel outside Jersey, which I have already mentioned in passing, because a person has to notify when they intend to leave the Island, here is a system for dealing with that, what they

have to do and the offences which arise from not so doing. Article 9 relates to powers to search. Now this is the powers to obtain search warrants for a whole variety of different purposes. In each case a search warrant has to be sought by an application either to the Bailiff or to a Jurat, and this is so that there could be a proper checking-up process that information provided for home addresses is correct. In extreme cases, a power to enter premises to check that there are not vulnerable persons or children there who should not be in breach of orders, and so on. A mass of details again which flows from that and penalties in relation to offences, but I do not think I need to go into more detail at this stage.

Are Articles 3 to 9 seconded? [Seconded] [Interruption] You propose that we have the défauts raised on Deputy T. Pitman, Deputy Le Fondré and Deputy Southern . Those in favour. Those against. The défauts are raised. Does any Member wish to speak on part 2?

1. Deputy M. Tadier of St. Brelade :

It is really just an issue of management or practical issue relating to Article 5 and I think one of my colleagues asked this during a hearing not so long ago with the Minister. It is really one to do with the list and the 5-year rule. One of the concerns raised was how the list would be maintained in that if the requirement is not that they are automatically removed after a 5-year period but that they have to approach the department or the relevant authorities to be removed, what checks are there going to be to make sure that any people who may be deceased in that time are removed or will that automatically happen anyway as the process goes on? Just maybe comment on the human rights implications, if one has to apply to be removed rather than the automatic removal after 5 years.

The Deputy Greffier of the States (in the Chair):

Does any other Member wish to speak on Part 2? Minister, I will ask you to reply to Part 2 please.

2. Senator B.I. Le Marquand:

The system is a proactive system. Once people are subject to notification requirements they will be meeting periodically with probation officers or other officers. The requirements for notification have an annual basis, which I should have mentioned but I was trying to avoid detail, and have to be renewed annually so if someone has died there is no doubt whatsoever that people are going to know they are not there. Deputy Tadier is quite right that the system is that a person remains on the list until they come off it but, as I said before, there is a lot of work to do here and people are not going to .. those operating it are not going to want people to be put on lists unnecessarily, although sometimes it is automatic because of a particular offence, or to be kept there for any longer than is really necessary. I am advised, but I cannot say by whom, that the whole law is human rights compliant.

The Deputy Greffier of the States (in the Chair):

Those Members in favour of Part 2 kindly show. Those against. Part 2 is adopted. We move on to Part 3, that is Articles 10 to 12, Minister.

3. Senator B.I. Le Marquand:

I want to take 10 on its own, if I may because 11 is the most controversial. I did want to flag that up to the Members of the House. Article 10 is restraining orders. Now, in very simple terms, restraining orders are orders made by a Court either at sentencing or subsequently, and that can include the Magistrates Court if the Magistrates Court were the sentencing court, which operates a bit like an injunction. It tells a person that there are things they must not do and it can tell them things that they must do and failure to comply with that is a criminal offence with sentencing up to 5 years. There are a variety of different routes into restraining orders. Sometimes what will effectively happen is that consideration will be given to a person being put on notification requirements at the same time, but it could theoretically happen separately with consideration just being given by the Court to a restraining order. There are safeguards built in, which I need to particularly point out, and that is that the Court must be satisfied on a balance of probabilities that the person poses a threat of serious sexual harm to the public or any person or persons. So it is quite a high test before this can come to operation, they pose a threat of serious sexual harm and orders cannot be made .. effectively the Attorney General cannot bring applications unless he satisfied with that. There is also a power to make interim orders because sometimes court proceedings can go on quite a long time, as Members are no doubt aware, and so there is a power to make an interim order prior to the final determination of the matter. There is a great deal of detail which I do not think I need to go through, but that is the essence of it.

The Deputy Greffier of the States (in the Chair):

Is Article 10 seconded? [Seconded] Would anybody like to speak on Article 10?

1. Deputy K.C. Lewis of St. Saviour :

Just briefly, this may even come under 11, would the courts be able to prohibit someone, for instance, a convicted paedophile who has done his term in prison from going within a certain radius of a school?

The Deputy Greffier of the States (in the Chair):

Does any other Member wish to speak? Minister, would you like to reply?

2. Senator B.I. Le Marquand:

Yes, they would if that was deemed necessary for the protection of youngsters; yes, they would. I expected someone to ask me an interesting question about chemical castration, but no one has, because they have just adopted that in Poland and I expected someone to ask me that question, which the answer is theoretically the Court could order that but of course courts are subject to human rights considerations. Although theoretically they could order a person to do anything, they would still have to be clear that it was necessary and proportionate within human rights considerations. Chemical castration is not actively being considered at this time but times may change.

The Deputy Greffier of the States (in the Chair):

All those in favour of Article 10 kindly show. Those again. Article 10 is adopted. Do you wish to take 11 and 12 together?

4. Senator B.I. Le Marquand:

Yes, I will take 11 and 12 together. It is 11 particularly that is different. Now 11 is different and I had always intended to highlight this to the Members of this Assembly; 11 is the only case in which a person can be subject to an order, here called the Child Protection Order, without having ever committed a criminal offence. Now, when I first came across this I had to think very carefully about this as to whether it was necessary but we have had situations, historically in the past, we could have a situation in which a person might be acquitted of an offence and yet there might be huge amounts of evidence against him sufficient to have very real concerns. Or we might have a situation where there was not enough evidence on any individual case but nevertheless a clear indication that this person represented a danger, a serious risk, to children. Child Protection Orders are purely geared to the protection of children. The defendant must be 15 or over and the Attorney General applies to the Royal Courts in relation to a person who resides in Jersey or who the Attorney General believes is in or is intending to come to Jersey. The application can only be made if it appears to the Attorney General that the defendant has, whether before or after the commencement of the Article, done an act mentioned in paragraph 3 and that as a result of the act there is reasonable cause to believe that it is necessary for a Child Protection Order to be made. So that is a first safeguard. The Attorney General has to be satisfied of those things. The acts are contained in subparagraph (3) and involve engaging in sexual activity involving a child or in the presence of a child. Child is defined for the purposes of this paragraph as under the age of 16, whereas in other areas of law it is under the age of 18. Various other acts are mentioned. One of the things that concerned me when I first read that was that some of the acts in themselves could have an innocent explanation. The fact that an act, under this category, does not necessarily mean the person has done something wrong because they could be legitimate sex education or indeed a lot of films which contain matter which might potentially fall within this area. But the safeguards are contained in paragraph (4): "On the application the Court may make the order if it is satisfied on the balance of probabilities that .." firstly the person has done the act and secondly, and this is the core thing, that: "It is necessary to make the order to protect children generally or any child from harm from the defendant." So I am satisfied there are sufficient safeguards, firstly the process

by which the Attorney General has got to be satisfied of certain things. He then brings an application, act must have been done which falls within paragraph (3), and the necessity must be there of making the order to protect a specific child or children. A Child Protection Order prohibits the person from doing anything described in the order, and that could be targeted in relation to staying away from a particular child or away from schools generally, or whatever, and it has effect for a fixed period of not less than 2 years specified in the order. Again, paragraph (6) gives a further safeguard because it says: "The only prohibitions that may be imposed are those necessary to protect children generally or any child from harm from the defendant." I have gone through the core provisions there in more detail than other matters to demonstrate to the Members of the Assembly that there are appropriate safeguards. I believe this is necessary. We are talking about the protection of children from predatory paedophiles who may simply have got away with not having a conviction but nevertheless who represent a substantial risk. Of course there is the power to make interim orders and the offences in relation to breach, but I will not go into much more detail because I have dealt with the core.

The Deputy Greffier of the States (in the Chair): Are you going to talk through Article 12 as well?

Senator B.I. Le Marquand:

Article 12 is travel orders. Now, here this is one of the areas in the law where we are looking not just at responsibilities in Jersey but at international responsibilities relating to people who live in Jersey, who are subject to orders in Jersey, and who are going to travel away. We have international responsibilities towards the protection of vulnerable people in other parts of the world. But there is also another issue because if you are going to have sex offenders able to travel to other parts of the world and commit offences, in other words, get back into the habit of committing these sort of horrendous offences which they do, then it is more likely that they will commit such offences again upon returning to Jersey. So there is also a protection in Jersey element in relation to this. They have to notify, if they are subject to notification requirements, of the intention to leave, where they are going, et cetera, and a Court can make an order either prohibiting them from travelling or saying where they can go, where they have got to stay and what the details are, and when they come back into the Island they have to report again. So that is the essence. Again, in Article 12, the definition of children, once again, is a person under the age of 16 because it is there dealing with potential offences against those under the age of 16. Sixteen, of course, being the age in which most jurisdictions, or certainly the British jurisdiction, sexual intercourse outside of marriages is not a criminal offence. I will not go into much more detail. There are penalties for the offence in paragraph (9).

The Deputy Greffier of the States (in the Chair): Are Articles 11 and 12 seconded? [Seconded]

1. Deputy A.T. Dupre of St. Clement :

I just wondered on the Child Protection Orders in respect of the person's age is 15. Why is it 15 on this particular section and not 16 like the rest of them are please?

2. Deputy R.C. Duhamel of St. Saviour :

Similar point: is there not an element of inconsistency in that in other countries we do have different ages set for sexual maturity?

3. Deputy M. Tadier :

First of all, I just wanted to seek clarification for myself as to why 11 and 12 were taken together. I think the main contentious issue is Article 11 and certainly that is the case for the panel, and unless there is a good reason I would prefer them to be taken separately because I would not like to vote against Article 12 just because we have got a problem with Article 11, but maybe the Minister can

explain in summing up. But the real area our panel has an issue with, and I apologise that I am not as well versed in legal or technical speak as the Minister or, indeed, our chairman who cannot be here at the moment. But the real issue that we have is with the appeals process. Article 11 deals with people who may for quite valid reasons need to be served an order but people who either have not been convicted of an offence but who also may not have even been to court and acquitted of an offence, it may, as the Minister said, be behaviour which is deemed to be inappropriate which qualifies them for an order. But really the appeals process being held in public is something that we do have an issue with and I think it has to take into consideration human rights implications. But not simply that, just that natural justice would dictate, it would seem to myself and to the panel, that if somebody has not been to court, been convicted of an offence, or even been to court and been acquitted that certainly that information is very sensitive and if somebody is having to go to appeal something which is not already in the public domain, and having to prove their innocence, if you like, then I am very concerned and the panel is very concerned that this is all going to transpire in the public domain, in court. We have heard already from the Attorney General and from the Minister during the Scrutiny session, it is not ideal for courts to sit in camera, that is perfectly understandable. But also it is not satisfactory for people who may well be innocent, and we work on a principle of innocent until proven guilty in Jersey and in the U.K. So, at the moment we are not completely reassured. I know the Minister said yesterday that courts can and may under certain circumstances sit in camera but I am afraid the use of words such as "can" and "may" does not really reassure the panel and it may not reassure Members here. What we would like to have a reassurance from the Minister that in these circumstances, when somebody has yet to be able to prove their innocence, and the status quo is that as far as the law is concerned they have not committed an offence, that they should be entitled to this privacy to be able to clear their name with the accorded privacy. So I think that is the real area that we would like to seek clarification on. It is a very good law. I think in summing up again we will thank the Minister for the hard work, it is a tough piece of legislation but this is one sticking point and certainly  if we do not receive reassurances in this area then I think we are certainly going to have to either abstain or vote against. I would encourage Members that if the Minister does not give satisfactory reassurance that any Members who do have concerns should either abstain or vote against. I think the Article will get carried anyway, but just so that it sends a signal to the Minister that this is an area of concern for

the House.

The Deputy Greffier of the States (in the Chair):

If you could just clarify briefly, Minister. Are you prepared to take separate votes on 11 and 12?

Senator B.I. Le Marquand:

Yes, this was the reason why I wanted to take 11 separately.

4. Deputy T.M. Pitman of St. Helier :

I can be very brief because despite what Deputy Tadier said, he put those concerns across very eloquently. Obviously I am member of the panel too. If I could just perhaps enlarge on that concern really. I remember a case some years ago where initially there was concern by Social Services that young children, well certainly below 16, were watching adult videos which, as I say, did give rise to concern and there were questions whether that was down to the parents. It turned out it was just a result of children looking where they should not, as children can do sometimes. But there was not any untoward motive. The parents certainly were not even aware. Perhaps they should have had a bigger lock on their cupboards in their bedroom or whatever, I am not quite aware of that. But the concern would be, as Deputy Tadier said, people in that case had not committed an offence yet if they were going to have to appeal then suddenly there is all that stigma around and I think .. well, I know the Senator agrees in a small Island that would be hugely damaging. So I really would ask, as Deputy Tadier has already done, that we do have some concerns because I am not sure we could support 11 because of this. Otherwise "can" and "may" is

not really good enough I am afraid, although again I congratulate the Senator on his hard work and the 33 drafts, or whatever it has taken. I am not trying to make more work for him but it is a very genuine concern. People are, as Deputy Tadier said, innocent until proven guilty.

5. Deputy J.A. Martin of St. Helier :

I thought my question had been asked already by Deputy Dupre but she has asked it the other way round. On the explanatory notes Article 11 allows the Royal Court to make orders restricting the activities of people who may be child abusers and then, as the Deputy says, in respect of a person aged 15 or over. If, and in these times where we have many families who, let us say have step families and we have older brothers with younger siblings or sisters, whatever, why 15? If there is inappropriate sexual activity taking place  from a child of 13 or 14 on a very much  younger member, why have we reached this age of 15? I do not understand we need an age there. It is a totally different question. I would just like that explained because I am concerned that at this time 15 may be too old and a lot of people start these offences at younger ages and I would just like to know the reason why we have agreed to 15.

6. Connétable P.F.M. Hanning of St. Saviour :

Perhaps the Minister could comment, there has been a question raised about the publicity for somebody who may not be convicted. The Court has the powers to restrict the publishing of names for cases which involve minors, is there any reason why the same orders could not be used in this case?

The Deputy Greffier of the States (in the Chair):

Are there any further contributions? I ask the Minister to reply.

7. Senator B.I. Le Marquand:

Firstly, in relation to Deputy Dupre's question, unless I have misunderstood her question, which is possible, I think she has misunderstood the age of 15. The age of 15 is referring to a potential offender not to their victim. That is why one has a different thing. I think that then leads me on to Deputy Martin's question which was on that particular point, and I do not know the answer to the question. I inherited the 29th draft of it and made improvements where I thought improvements were necessary. I suspect the significance of the age of 15 in Jersey law, the only significance I can think of is that that is the age at which a person can potentially be sent to prison .. I am sorry, to youth custody. As this is an order which would have to have enforceable sanctions, that might have been the thinking. I suppose the other rationale would be the assumption that younger children ought to be controllable and that if they were doing things which they ought not to do in relation to yet younger children that they would probably have to be removed from the home in any eventuality and there would be sufficient powers for Social Services. Apart from that I am speculating there, but I do not know. It may be we followed what is in the U.K. I do not know. Whether the Attorney General has a more detailed knowledge on the genesis of this, I do not know. I studied it as it is. The question raised by Deputy Duhamel in relation to different ages for sexual consent in different places is a good question, and that is absolutely correct. This is recognised in parts of the law where for an offence to be recognised in Jersey it also has to be an offence in the place where it is committed so there is accepted that, but I think the question is probably asked in the context of travel orders. I suppose the question he would be asking would be if it was lawful, say, in another jurisdiction for there to be sexual intercourse with under 16 year-olds, is it reasonable that there be a prohibition on the person going there. I think the answer is yes because it is our standards, surely, that should be applied to the issue and also, of course, how would you

know .. let us say hypothetically sexual intercourse was not illegal in a jurisdiction of 14 somewhere, how would you know the person would confine themselves to 14 year-olds, particularly if they had a record of offending with younger age groups than that. Courts do, of course, have discretion in relation to whether they make an order or do not make an order in

relation to a travel order. In relation to the Article 11 point raised by Deputy Tadier and Deputy Pitman, I did explain yesterday that this does not just relate to appeal proceedings, this relates to the initial application as well because the initial application is made to the Royal Court, and therefore that is a public court and so their concerns equally apply. I understand those concerns and I share those concerns because of the difficulty in a small Island of adverse publicity that an application has been made alleging such things. As I explained yesterday, the Royal Court does have powers under Article 29(4)(b) in particular, which says: "A Court may sit in private in proceedings in which any powers under this law may be exercised by the Court with respect to any child." Therefore my suspicion is that, as in most cases, I expect the Court to follow that although the law does not require the Court to make rules in that respect. As in most cases, the application will have originated because of particular things done with a particular child. I always thought in a vast majority of Child Protection Order cases that they would fall within that and I explained, I think, yesterday that in addition to that there are other powers under which the Court could provide that. But there is nothing in here saying the Court must do that and this creates a slightly difficult position because it will then be very difficult to test the feeling of the House in relation to this. If the House really felt that in all cases involving applications for Child Protection Orders where a person had no previous conviction, that they ought to be held in camera, then it would be possible, of course, to amend the law to say that and that would be the best way of doing it, although one would have to check first of all on the points raised by the Attorney General yesterday as to whether that breaches human rights in some other more subtle way. My own personal view, I am by nature trusting in Courts and in their wisdom having served there for many years and I personally am content to leave it as it is. I would hope that Members would not vote against this Article simply on that reason. I am struggling to try and work out a mechanism by which the feeling of the House can be tested on this. Perhaps if I urge Members who were concerned on that issue to abstain rather than voting against and/or to let me have a note saying that they really are concerned and would prefer if there was an amendment to the law in order to deal with this, then it would be possible to come back relatively quickly with an amendment and that would not delay the whole law because we could get that also up to the Privy Council. But I personally am happy to leave it to the Courts. I have run into a problem because I started writing down the question of the Connétable of St. Saviour's but did not write the whole of it down and now I cannot remember it.

Can I ask him to clarify what his question was?

The Greffier of the States (in the Chair): I am sure he can clarify that for you.

The Connétable of St. Saviour :

I think part of it has already been answered. It was in relation to the Court having the powers to restrain disclosure from the media of names for minors and could that be done in the case of people who did not have convictions?

Senator B.I. Le Marquand:

The answer to that is that the power exists. It is already in here somewhere but I cannot remember at this stage exactly where. There is an Article making it a criminal offence to give details which would lead to the identity of a child who was referred to and so on. That is here in addition to the powers that generally exist.

Deputy S. Power:

It was really to ask the Attorney General if he were prepared to comment on what the Minister for Home Affairs has been saying for the last few minutes.

Mr. W.J. Bailhache Q.C., H.M. Attorney General:

I wish to address some of the human rights aspects which the Minister has just touched upon, but in doing so I think perhaps it is necessary to go back over what this Article is doing. Under Article 11(1) the Attorney General may apply to the Court for a Child Protection Order in respect of a person aged 15 or over who is the defendant. So that is to say the Attorney General is going to Court to get an order against a person who might be aged from 15 or above, and I think the reason that 15 has been chosen is that that is an age where predatory sexual activity in relation to younger children might start rather than 14, and also there is a feeling that it is wrong to drag 14 year-olds before the Court as a defendant, and there will be some learning in the international conventions about this which, I am sorry, I have not got to hand because I was not expecting this question. But I am sure that there is, as I say, some learning in international conventions about that. But the nature of this order is that it is an order against somebody who might be aged 15 to 18 but who might be aged, of course, in the age above that. It seems to me that if one is looking at the issue of whether or not proceedings should be heard in public or in private there are a number of competing interests. Generally speaking, the Royal Court must sit in public. That is a requirement under Article 6 of the Human Rights Convention. It should sit in public. There are express cases where it is allowed to sit in camera but if one is looking at human rights issues you need to be sure that it is proportionate to sit in camera and not in public. If the Assembly were to pass a law which said the Court must always sit in private, in camera, that would be saying that there are no circumstances at all, any circumstances, where it is proportionate to sit in public and that seems to me to be very unlikely. I think we would have a serious human rights problem with the legislation if that were the case. The Minister says that the Courts can be trusted to sit in private where it is necessary and in public when it is not, and I respectfully agree with that. There is an ability to make rules. It is clear that if one is looking at getting orders against children aged 15 to 18 the Court is going to be sitting in private and the children not going to be identified. So it is really only a question of are there any circumstances with people who are over 18 where it would be right to sit in public, and there may well be. It may be the case that there has been a full trial and there is no doubt about the evidence which has come out in the trial, which shows that the accused has done some activity which, nonetheless .. which falls within 11(3) but nonetheless falls short of being a criminal evidence. So that it may be that he has given the child something which relates to sexual activity. He may be charged with a criminal offence of sexual activity and been acquitted of that because there is not enough evidence of it but nonetheless there has been enough evidence, which is not really disputed, that he has given the child something which falls within 11(3)(c). So in those circumstances it would be proportionate to sit in public because the Court has already heard that evidence in public and when the child protection application is made immediately afterwards it makes no sense to say this is going to be heard in private. So that is why I say, I think there is a problem in saying the Court must always sit in private because there will be circumstances where it is proportionate to sit in public, and I think there would be a real human rights problem with the law if it were to be

amended to say that the Court must always sit in private.

Deputy J.A. Martin:

Can I just have a clarification from the Attorney General please? Because of the answer given by the Minister the age of 15 being: "Oh well, it will be Social Services and they will have to be removed from the home." Now is he talking about the child that is being abused or the abuser? But where does that leave Social Services, with all due respect to the Attorney's comments, he said 15 is usually the age that sexual predatory could begin. Well, it might be usual but it is not always and where does that leave .. is there another law under the Children's Law that I do not think I am aware of, that this states over the age of 15? Where would that leave someone who is 14? I agree with you saying dragging a 14 year-old to Court but the Attorney himself already said that these would be held in camera.  I just am nervous of this 15 when in today's age younger people are exposed so much to sexuality .. things sexual earlier. The age of predatory being 15, I am not convinced of and I am wondering whether there is any movement on that or ..? I really am concerned that it is going to fall back on Social Services and there will not be a law for us to protect. I am very sorry, I just need clarification.

The Attorney General:

I think there will be powers with younger children of 13 or 14 who might be engaging in that sort of activity. There will be powers under the Children's Law where one would expect the application to be made to Court for some sort of interim or permanent care order which will allow a care plan to be made, which addresses that child's behaviour. But surely the practical answer for this is to ask the Minister to undertake to review the age which he can do and bring it back at a later stage if it looks like being a problem in practice. I think that is the practical way forward.

Deputy M. Tadier :

I appreciate the whole area of the Courts and the issue of not sitting in public but in camera but I think the whole problem is that these kind of deals have to be done by the Court. If there were another system whereby the appeal could take place in a Tribunal as it might otherwise for an employment case or something that would not be such an issue. But my understanding is it is only the Court that can issue the order and it is only the Court that can deal with the appeal. I still do not think the panel has received satisfactory .. the question I would have .. and also I just comment on the fact that the evidence has to be heard in public in the first place is probably something the panel did not pick up. I mean we have an issue with that as well, I believe, and consequently with the appeal being held in public, so I would ask, is there any way that this House or the Minister for Home Affairs can give clear direction to the Court that is the will of the House and the Minister for Home Affairs that in these circumstances the Court should sit in camera. That is the simple question. I know we are in a catch-22 but that is what I would ask.

The Greffier of the States (in the Chair):

Is that a question for the Minister or the Attorney?

The Attorney General:

With respect to the Assembly, the Assembly cannot give directions of that kind to the Court but the evidence will be given in public only .. I was giving an example of cases where the evidence might be given in public. If it is appropriate to sit in camera, in private, because, for example a 16 year- old or 17 year-old is the subject of the application, then the whole proceedings will take place in private anyway, including all the evidence. There will be no question of identification of that person and no question of the matter becoming public. The point I was making was that unless you can say there are no cases where it is appropriate to sit in public you have to let the law stand as it is and let the Court decide on a case by case basis when it is going to sit in private.

Deputy P.J. Rondel of St. John :

Could the Attorney General explain to me and also to the House, given that young people can vote at 16 and we have a child law that says 18, when does a youngster become an adult? In the Children's Law it says 18 and yet they can vote at 16. Could he try and give some clarity to that for me please?

The Attorney General: No, Sir. [Laughter]

The Greffier of the States (in the Chair):

Minister, I understand you are willing to take the vote separate on the 2 Articles?

Senator B.I. Le Marquand:

Could I just improve on my answer to the Connétable of St. Saviour because I have now found the Article to the question. It is Article 29(5) and (6) which together create an offence of publishing material which is intended or likely to identify a child as being concerned in proceedings before the Court and so on. I move the vote on Article 11 separately. Perhaps I should have commented on Deputy Martin's second comment. I cannot amend a solution(?) but if there were proved to be problems in relation to the age of 15 this would be a matter that would have to be reviewed by an amendment to the law. It could be. So I propose Article 11. I call for the appel.

The Greffier of the States (in the Chair):

The appel is called for on Article 11. All Members who wish to vote are in their designated seats. The Greffier will open the voting on Article 11.

The Greffier of the States (in the Chair): Do you move Article 12?

Senator B.I. Le Marquand: I propose Article 12.

The Greffier of the States (in the Chair):

The appel is called for. [Interruption] No, the Minister proposed them together but took the votes separately I am afraid, Deputy . Very well, the Greffier will reset the voting system and the Greffier will open the voting on Article 12.

The Greffier of the States (in the Chair):

Do you move Part 4, Minister, Articles 13 to 17?

5. Senator B.I. Le Marquand:

Articles 13 to 16 are 4 of the routes into the notification requirements. In the case of Article 13, this is where there has been a conviction for sexual offences before the commencement of the law and either in Jersey or elsewhere and application has to be made by the Attorney General to the Royal Court and that leads to notification requirements. Article 14 is convictions for sexually aggravated offences before the commencement of the law and this is in relation to offences in Jersey or outside. Again there has to be an application, and there is a safeguard here that an order is only made so that notification requirements only apply where the Court is also satisfied that the offender poses a risk of sexual harm to the public or any particular person or persons. So there has to be a continuing risk for it to operate. Article 15 is convictions for sexual offences outside Jersey. Again an application has to be made to the Court. There are some slight technical complications in that one, but I will not bother at this stage to go into them. Article 16 is convictions for sexually aggravated  offences  outside  Jersey  and  again  there  is  the  same  safeguard,  rather  similar  to Article 14 that the Court has got to be satisfied the offender poses a risk. In all of these cases, these are  routes  into  the  notification  requirements.   Article 17  is  completely  different  from  those, although it is in the same section. This is part of our international responsibilities again, and this relates to a situation where we have a person ordinarily resident in Jersey who does not act in a jurisdiction outside Jersey, which is an offence under the law in that jurisdiction, so that should satisfy Deputy Duhamel  in this particular  case,  and where the Act,  if done  in Jersey, would constitute a sexual offence in Jersey, which means that the person can be tried in Jersey for an offence  committed  in  another  jurisdiction  if  these  conditions  are  met.   That  is  part  of  our

international obligations. It is also a recognition, in relation to some of the countries, to which people from Jersey might travel and commit sexual offences that there may be difficulties in relation to extradition proceedings. So it is right and proper that they be capable of being tried here. Article 17 may be slightly more controversial than 16 so I propose to take comments on all but perhaps may take the vote on 13 to 16 separately to the vote on 17 in case there are any Members who want to record abstention to that.

The Greffier of the States (in the Chair): Are Article 13 to 17 seconded? [Seconded]

1. Connétable D.W. Mezbourian of St. Lawrence :

I wonder if the Minster will explain how these cases will be brought to the attention of the Attorney General and does it mean that every single person who has been convicted of a sexual offence in Jersey will have to be considered for referral to him or whether they will be automatically referred? What will accord him to make the decision that they should be sanctioned under this legislation? Does this Minister know .. I am sure the Minister will know how they will be brought to the Attorney General's attention, can he given an indication of numbers?

2. Deputy R.G. Le Hérissier of St. Saviour :

Building on what the Constable of St. Lawrence has asked. Under 15, how will the Attorney General reassure him or herself that indeed the offence committed overseas was directly comparable to an offence on the Jersey statute book? How will they also assure themselves that the criminal trial process was similar, if indeed that is part of it. Secondly, under 17, acts outside Jersey; how will a trial take place here? Will witnesses have to appear, for example, or will it be done on the basis of sort of written depositions or dispositions or whatever? How will a trial take place on that basis? If the authorities are not prepared to extradite, for example, then how will the jurisdiction here get the evidence?

3. Deputy R.C. Duhamel:

I think we have problems to which I was alluding under the section 12 of the travel orders. I am not at all clear whether or not if an offence is deemed to be an offence, and it has not been committed in another country. Say, for example, they go to Spain and there is underage sex with a 13 year-old which is permitted in Spain, is that deemed under the Jersey rules and law as an offence under our rules, in which case that if a person who came from Spain to Jersey has undertaken these practices do we nab them and say, as they come through the airport or the harbour, to say: "Well, sorry, you are subject to a notification order, or whatever, because you have done something that under our laws are deemed to be an offence." It is a little bit ambiguous in my mind and perhaps the Minister would explain or  indeed if the Attorney General is in a position to give me an assurance or reassurance on the issue then that would help.

4. Deputy A.E. Jeune of St. Brelade :

Just picking up the point that Deputy Duhamel made; what would happen if it was a Jersey child in Spain with a Jersey person at the age of 13?

5. Deputy M. Tadier :

That was the concern I was going to raise, it seems like a very strange situation. I may be too late to speak on this but I will ask the Minister for Home Affairs anyway as it may be relevant for the whole debate in general. This law, while it is to do with child protection, the sex offenders register is to deal with anyone who has committed any sexual offence, for example, a rapist who does not have a predilection for children but maybe for older people of either gender, presumably they are still a threat, though not necessarily to children, the question I wanted to ask before is that why is it restricted just to children because presumably anyone who commits a sexual offence is still a threat to women, let us say, and why are we not restricting travel on those people in other countries?

6. The Attorney General:

Perhaps I could address some of the questions which relate directly to me. The first thing I want to say is Article 17, which is the provisions which deal with criminal prosecutions in Jersey for acts done by residents of Jersey outside Jersey. The first thing to say is that the jurisdiction of the Court is usually a territorial jurisdiction. The court has jurisdiction over acts that take place within its jurisdiction. Therefore, if, taking Deputy Jeune 's example, a Jersey person takes a 13 year-old person who lives in Jersey off to Spain and has sexual relations with that person in Spain, a Jersey court would not have jurisdiction over that unless you create the jurisdiction by some statutory provision. That is what this does. It does create a jurisdiction for the Royal Court to exercise in respect of acts which take place outside Jersey. Now, there is under this Article dual criminality, in other words, the act which takes place must be an offence, not only under Jersey law but also under the law of the jurisdiction where it takes place. It is only in those circumstances that criminal proceedings in Jersey can be started. The next thing to tackle, I think, is perhaps Deputy Le Hérissier's point about evidence. Of course there will be some circumstances when it is difficult to get all the evidence before the Court. That is no different from any other case, that sometimes it is difficult to get evidence which proves that the offence has taken place, even though you might have a reasonable suspicion that it has. But the assessment of whether or not there is sufficient evidence to take it forward is a matter for prosecutors and they will do that on a case-by-case basis, looking at the evidence that exists. Sometimes there may be admissions made by the accused to the police. That may be enough to take the case forward to court. It may be a case, as Deputy Jeune 's example shows, where the victim is also resident in Jersey and therefore can give evidence. It may a case where the person concerned is prepared to come to Jersey to give evidence voluntarily. You cannot make them come. So it is not a question of extradition here in relation to getting evidence from somebody other than the accused but it may be that they are prepared to come to Jersey to give evidence. This assessment will have to be made on a case-by-case basis. The other thing I would say about Article 17 is that certainly our applications, where, under the U.K. legislation there is an ability to prosecute in the U.K. for acts taken outside the U.K. and these usually are targeted at British citizens and therefore apply to British people in Jersey, it is desirable, so it seems to me - it is a matter for Members, obviously - that one has a provision of this kind because if one is looking at prosecuting a person in Jersey for acts done abroad, it is better that they should be prosecuted in Jersey where they live than have the possibility of facing charges in the English courts where they do not live. So it seems to me to be right that the Island exercises a jurisdiction over its own residents, which is what this Article is doing. I am not sure if there were questions which I have

missed but I will try and deal with them, if any.

The Greffier of the States (in the Chair): I call on the Minister to reply.

7. Senator B.I. Le Marquand:

Firstly, the Connétable of St. Lawrence , in relation to how matters will come to the attention of the Attorney General. Well, of course, in relation to previous offences in Jersey, there is going to be a process, part of the catching up, of looking at those, which are a matter of record, of course, and assessing risk and so on. I have got the figure of somewhere between 200 and 250 people in relation to that. Now, if the question was also intended to cover people who might have convictions in other parts of the world it was not, I see. I wanted that question. If it was a question of somebody in relation to the trial process in relation to some of the different Articles within 13 to 16, well, of course, if an application is made by the Attorney General and is opposed, there may well be a need to hear evidence in order to establish the facts in relation to it. So it is no different from any other trial process. That is where the Royal Court will need to, among other things, make rules of court to set out what the full process is and no doubt will adopt similar procedures, appropriately adjusted to those which already exist in the U.K. in parallel cases because that is the normal route which is taken. In relation to the question of Deputy Le Hérissier, yes, of

course, there will be practical difficulties. The Attorney General has already answered this. There may well be practical difficulties in getting witnesses. But this only applies in relation to people who are ordinary residents; they are people who are here, who have gone outside and committed these offences. So there is a logic to their being subject to the authority of the authorities in Jersey. I did make the point for the benefit of Deputy Duhamel that Article 17 was only where the act constituted an offence under the law in force in that jurisdiction. But he may not have heard that because I think he was talking to Deputy Tadier at the time I made the comment. But I would also .. to reassure him, that also implies, and I think perhaps it was Deputy Jeune who raised the particular point, although she may not have spoken, she may just have looked at me. I may have interpreted what she was saying. But all these Articles which refer to previous convictions are referring to convictions, if it is outside the Island, under the law of the country. So no case under 13, 14, 15, 16 could be a situation where there was not an offence in Spain or otherwise in the particular jurisdiction involved. Deputy Tadier very cunningly got in a question on Article 12, out of time, which was why travel orders - we have already, of course, agreed to this, Deputy - were restricted to the purpose of protecting children generally. I assume because these are the worst type of categories of matter and also because it can be quite difficult in relation to a person travelling to a country to know whether or not they were going with the intent of committing an offence against someone there. You have to have a total blanket, almost, provision. Whereas if you see somebody is travelling to Thailand or some other jurisdiction which is well known for matters relating to child prostitution, then you really have got rational reasons for it to be. But I assume those are the reasons. So I would like to move to the votes on Articles 13 to 16, separately, if I may.

Deputy R.G. Le Hérissier:

I wonder if I could ask for clarification either from the Minister or the A.G. (Attorney General)? If somebody is asked to declare sex offences because they come from a country and we are employing a lot of people in residential homes, for example, who are not from the jurisdictions named here, is there a legal requirement that they declare, prior to the vetting and barring law? In other words, we have got a vast number of people - it was raised yesterday - who may have been convicted overseas in an overseas jurisdiction. What steps are we going to take to verify, if, indeed, we can take any?

Senator B.I. Le Marquand:

I think I can answer that. There is not a legal requirement at the moment that is part of the vetting and barring package that there would be legal responsibilities. But if you have got a person who is coming into the Island from outside the E.U. (European Union), then, of course, there will be immigration issues and they will have to apply for permits and so on and checks would then be done in that context. It is in relation to people from the E.U. who have the right to come and the right to work. There could, hypothetically, be irresponsible employers out there who are not currently following the current vetting arrangements. It would be most regrettable if they were. But that is one of the reasons why we have to move to the full package of vetting and barring.