§ Mr. Michael
I beg to move amendment No. 22, in page 12, leave out line 32 and insert—'(a) Where the offender was under 20—
- (i)paragraph (a)(v) and (vi) does not apply;
- (ii)paragraph (a)(vii) and (viii) does not apply where the act would not have been an offence but for section 14(2) or section 15(2) of the Sexual Offences Act 1956, unless the court has imposed a term of imprisonment for the offence; and
- (iii)paragraph a(iii) does not apply unless the court, having regard to the circumstances of the offence and the offender, in the interests of child protection, so directs.'
§ Mr. Deputy Speaker (Mr. Michael Morris)
With this, it will be convenient to discuss amendment No. 23, in page 12, line 35, after 'over;' insert—'(bb) paragraph (a)(vi) above does not apply where the other party was 16 or over at the time of the offence and the offender was not sentenced to a term of imprisonment.'
§ Mr. Michael
There is an anomaly in the Bill arising from the Government's wish to have a degree of flexibility in relation to teenagers. In schedule 1 the requirement to register in relation to three offences—intercourse with a girl between 13 and 16, buggery, and indecency between men—does not apply where the offender was under 20. The amendment rephrases that provision to deal differently with each of the offences.
As I said in Committee, intercourse with a girl aged between 13 and 16 is one of the excluded offences. I understand that the Minister wants to avoid individuals involved in teenage sex being forced to register on a permanent basis under the terms of a Bill that targets paedophiles. However, by excluding the 18-year-old who has sex with a girl of almost 16, the Bill also leaves out the 19-year-old who has sex with a girl who has only just reached her 13th birthday. That illustrates the enormous range and variety of the offences that can be caught under the Bill; some are much more serious than others and the Minister must surely intend to catch those cases, particularly when the offence is very serious.
240 I pointed out in Committee that Lord Woolf ruled that indecency between men can only be consensual. We need to ensure that we target those who are a danger to children and not those who are not. The amendment would include for registration any serious cases of indecency involving 16 or 17-year-olds with someone over 20 if the seriousness of the offence was such that a court had imposed a term of imprisonment, but it would not catch cases in which there was a closeness of age, which is parallel to the exclusion that the Minister has allowed for heterosexual sex.
The amendments are modest, aimed at ensuring fairness and that we hit the target of those who are a danger to children, without accidentally hitting those who are not a danger to children. The Minister has also sought not to target such people.
§ Mr. Kirkhope
The aim of the first main proposal in amendment No. 22 is to exclude from the registration requirement offences of indecent assault on a girl or boy under 16 in which the so-called assault is in fact consensual, and no custodial sentence is imposed. The hon. Member for Cardiff, South and Penarth (Mr. Michael) has focused on the fact that such behaviour may constitute an offence, even though consensual, because, under the 1956 Act, a child under 16 is not considered to be able to give consent to activities that, if non-consensual, would count as assault. The hon. Gentleman's solution is to seek to distinguish between serious and less serious cases with the test of imprisonment.
I agree that the amendment identifies a theoretical anomaly. A teenager who has committed consensual unlawful intercourse with a girl under 16 would avoid registration, whereas the same teenager, if charged with assault as a result of consensual indecent behaviour falling short of intercourse, would be required to register. I agreed in Committee to consider the matter further to see whether there was a way round that point. We have thought very hard about the matter, but we have concluded that any problem is more apparent then real, and that any solution would make the Bill more complex than it is already.
There could be difficulties, for example with offences tried before the passage of the Act, in knowing whether consent had been given, as the court would not necessarily have addressed that. We would have to put cases resulting in a custodial sentence in a separate category from, for example, those resulting in a community sentence, which could still be serious instances of the offence.
I do not believe that there is likely to be a problem in practice. I do not believe that cases are likely to come to court in respect of teenagers engaged in what are patently consensual intimate acts. The problem, if it exists, is inherent in the structure of the offences. Such offences could, in theory, occur whenever young teenagers cuddle one another, but I am not aware that prosecutions frequently take place following dances and discos for youngsters.
The second part of amendment No. 22 would toughen up the proposal in the Bill. Instead of our approach—under which the offence of unlawful sexual intercourse 241 with a girl between 13 and 16 would not attract registration if the offender was under 20—the amendment would give the court discretion to require registration when the interests of child protection made that appropriate.
I have some sympathy with the motivation behind the amendment. I undertook in Committee to reflect on the hon. Gentleman's concern, but I am not persuaded that his proposal is the answer. It would make the scheme more complex and would create a further category of offenders subject to the registration requirement. It would make enforcement more difficult, because the police would not know, from the facts of the case and the sentence passed, whether the offender was liable for registration. The court would be invited to exercise discretion on whether registration was required in the particular instance, which we have avoided elsewhere in the Bill.
I do not believe that there is a real cause for concern. We decided to exclude consensual teenage sexual activity from the scheme and have used the age point as the means of achieving that end. Any age point may appear somewhat arbitrary at the margins, but I do not believe that it is likely to mean that those who should register will escape the requirement.
The effect of amendment No. 23 would be to exclude registration in any case of indecency between men where the victim is over 16 years old. I am aware of the arguments for reducing the age of homosexual consent to 16, but the fact remains that Parliament has decided that for homosexual offences the age of 18 must remain the threshold. That being so, I am not prepared to lift registration where the offence is committed against someone who is a minor for those purposes. I hope that the hon. Gentleman will agree not to press either of the amendments.
§ Mr. Michael
I am grateful to the Minister for his response, which acknowledged that basically there is an inconsistency. It seems that there is an inconsistency in one direction in the Bill, and we have sought at least to install fairness. That is all that we have sought to do. I should make it quite clear that we have not tried to go beyond what the Bill can do. As the Minister says, there is an argument in respect of the age of consent, but we have not sought to address that in any way, and I hope that he was not suggesting that we have.
Had the amendments been accepted, they would have taken us a step nearer fairness, balance and the protection of children. As the Minister clearly does not intend to accept them, I ask him to keep thinking and to talk to his colleagues in another place in the hope that we shall see fairness in the Bill before it completes its passage through Parliament.
I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Deputy Speaker
With this, it will be convenient to discuss the following: Government amendment No. 33.
242 Amendment No. 10, in page 13, line 36, after '(x)', insert'subsections (5) and (6) of'.Government amendments Nos. 34 to 39.
Amendment No. 7, in page 13, line 45, at end insert'; and(e) paragraphs (a)(viii) and (d)(x) do not apply where every person involved in the offence was 18 or over and was a willing participant.'.
§ Mr. Maclean
The broad purpose of this group of amendments is to align the Scottish offences with those in the list for England and Wales. Clearly it is important that there should be as close an alignment as possible between the two jurisdictions, so that offenders in different parts of the United Kingdom will be treated in the same way for registration purposes.
Half the amendments in the group cover homosexual offences, where we think it right to remove from the qualifying offences the Scottish offences that deal with procuring homosexual acts between two other men and those covering consensual adult homosexual activities. The amendments tabled by the hon. Member for Dumbarton (Mr. McFall) and others are in similar terms. We clearly share the same objective of ensuring that there is parity of treatment between homosexual offenders on either side of the border.
Similar considerations apply to exclusion of the procuring offences involving women, which would not trigger registration south of the border, and to the inclusion of the Scottish offence of unlawful sexual intercourse with a girl below the age of 13 where the offender is a teenager. In the amendments we have sought to achieve consistency across the jurisdictions.
Amendment No. 34 takes on board the concern expressed by the hon. Member for Dumbarton in Committee that there was an anomaly as between a person convicted of having intercourse with a step-child over the age of 18 and someone convicted of incest with a blood relative. The amendment cures that anomaly, and I am grateful to the hon. Gentleman for drawing it to the Government's attention.
I commend the whole series of Government amendments to the House and I invite the hon. Gentleman not to press his own amendments.
§ Mr. McFall
I shall not press amendments Nos. 7 and 10. I thank the Minister very much for his consideration of the points made in Committee. When the matter was put to the Scottish Office there seemed to be little forthcoming, but in Committee we had a very fruitful discussion. Those who are concerned about the issues in Scotland are certainly very pleased with the action that the Government have taken.
Amendment agreed to.
Amendments made: No. 33, in page 13, line 36, at beginning insert "subsection (5) of'.
No. 34, in page 13, line 39, leave out '(vi)' and insert '(ii)'.
No. 35, in page 13, line 40, at end insert—'() paragraphs (a)(viii) and (d)(x) above do not apply where every person involved in the offence, other than the offender, was 18 or over and was a willing participant;'.243 No. 36, in page 13, line 43, leave out'paragraphs (a)(viii) and (d)(x) do'and insert 'paragraph (a)(viii) does'.
No. 37, in page 13, line 44, leave out second 'and'.
No. 38, in page 13, line 45, after "apply" insert "in the case of an offence in contravention of subsection (3) of section 5 (unlawful sexual intercourse with a girl over 13 but under 16)'.
No. 39, in page 13, line 45, at end insert'and() paragraph (d)(x) does not apply where the offender was under 20 and—
- (i)where the offence involved an act of sodomy contrary to subsection (5) of section 13, every other person involved in the offence was a willing participant; or
- (ii)the offence involved an act of gross indecency or shameless indecency contrary to the said subsection (5).'.—[Mr. Maclean.]