Risk of Sexual Harm Orders (RSHO), which can be applied for by police and granted by a sheriff, were introduced under the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005. The orders place restrictions on the activities of those who are deemed a risk to children, yet those on the receiving end need not have committed any offence or have any convictions.
The orders can be used where a child victim does not wish to give evidence – in some cases believing they are in love with their abuser – or would be unfit to take the stand.
Just 31 of the orders have been granted, leading Malcolm Graham, assistant chief constable for Major Crime and Public Protection, to suggest the bar for imposing them should be significantly lowered. The intervention came as it was warned significant levels of sex abuse on a similar scale to that uncovered in Rotherham, Yorkshire, where 1400 children are believed to have been sexually exploited in a 16-year period, may be going undetected in Scotland.
Child Abuse Law- the proposals
But the idea provoked an angry response from lawyers, who said they feared that innocent people could find themselves placed under an order on the basis of one false accusation.
Police can only apply for an order where it appears an individual has committed at least two acts directed at a child aged 15 or under that suggests they could be a risk. Activities covered range from engaging in sexual activity with a child to communicating with a child in a sexual manner. Under Graham’s proposals, individuals would have to have appeared to have committed just one act, while the age barrier at whom the behaviour was directed would rise to 18 from the current guideline which is 15 and under, and would also include “adults deemed at risk of physical or psychological harm” as well.
Graham said in a suggestion to the Scottish Parliament’s justice committee, which is to discuss apparent under use of a range of provisions designed to combat child sexual exploitation (CSE) brought in under the 2005 Act, that the changes would make the orders “truly preventative as opposed to requiring a form of corroboration” while increasing the ability of the force to protect vulnerable individuals.
But Aamer Anwar, one of Scotland’s leading civil rights lawyers, said Graham’s proposals were “a recipe for disaster”. He said: “I understand the desire to protect children, but what about those who are falsely accused? Ex-partners, for example, who want to destroy someone’s life, do bring allegations like this. The public needs to understand that anybody can be put in that situation.
“All it would take is for a single person to make a complaint. The finger is pointed, someone could find themselves subject to one of these orders and there is little they can do to reverse it. To reduce the number of acts from two to one, to lower the standard of proof with no need for corroboration, would be of serious concern and an extremely dangerous step for Police Scotland to take.”
Melissa Rutherford, a criminal defence solicitor with Glasgow-based Latta Law, said the introduction of RSHOs had been a positive step but she raised concern over Graham’s proposals, saying they could lead to an infringement on the rights of those accused. “A balance must always be struck when considering the protection of an individual, and the rights of others,” Rutherford, who practises children’s law, said. “These orders must only be granted if it is deemed necessary in order to protect a child, or children in general. There is a danger that if these changes are put into place, then the balance may not be achieved between the protection of the public and state interference.”
Child Abuse Law- protection?
According to Barnardo’s, there have been 42 prosecutions from the offences created under the 2005 Act.
Martin Crewe, director of Barnardo’s Scotland, said: “We are worried that child victims of sexual exploitation may not be being afforded the protection of the criminal justice system in Scotland as they should be. Low numbers of prosecutions does not mean that child sexual exploitation is not happening.
“We hope that the justice committee will take necessary steps to get to the bottom of why legislation which was brought in to tackle CSE in 2005 has been so little used.”
Detective Chief Superintendent Lesley Boal of Police Scotland said: “Police Scotland works nationally to support the Scottish Government’s action plan on CSE and we have developed a Police Scotland action plan to compliment this. In addition, at a local level, we have created 14 divisional public protection units that work in partnership with local authorities and health through child protection committees to tackle all forms of child abuse including CSE.”