ABUSE OF POSITION OF TRUST

HC Deb 01 March 1999 vol 326 cc776-84

Mr. Boateng

I beg to move amendment No. 1, in page 2, line 31, leave out 'two' and insert 'five'.

The amendment would raise the maximum penalty for the new offence of abuse of trust from two to five years. It has been tabled by my right hon. Friend the Secretary of State, the shadow Secretary of State, the Opposition spokesman, the hon. Member for Hertsmere (Mr. Clappison), and the hon. Member who deputises for the Opposition on these matters, the hon. Member for Ryedale (Mr. Greenway), so it enjoys the support of right hon. and hon. Members on both sides of the House. The amendment follows a detailed discussion in Committee on a similar amendment. We undertook to consider the position further in the light of the cogent arguments made then.

Hon. Members will recall that, on Second Reading, my hon. Friend the Member for St. Helens, South (Mr. Bermingham) made two persuasive interventions to raise the issue of penalties. It is right that his name should be mentioned in relation to this amendment.

We have looked at the amendment tabled in Committee and agree with the views that hon. Members expressed then that the amendment should be made. It may be helpful to explain briefly why we feel that that is so. First, we agree that analogy with the penalty for unlawful sexual intercourse with a girl between the ages of 13 and 15 is flawed. My view, for what it is worth, is that the penalty for unlawful sexual intercourse is too low. I know that a number of hon. Members on both sides of the House share that view. The Opposition spokesman on these matters certainly does.

As we said in Committee, we expect the penalty for unlawful sexual intercourse to be sorted out as part of the sexual offences review. However, as we believe that it is too low, we accept that it should not determine the level of penalty for the new offence. Given that we are considering a new offence, it is right to take this opportunity to set that penalty at an appropriate level. We must not be unduly influenced by the inappropriate level of penalty that applies in relation to unlawful sexual intercourse. Thus, we are considering the matter on its merits rather than on the basis of an analogy with what we regard to be a flawed penalty.

There is merit in a maximum penalty of five years for the new offence of abuse of trust. We believe that there could be cases, even of 16 or 17-year-olds with ostensibly consensual sexual relations, where a penalty of five years could be properly justified. For example, if someone in a position of trust in a detention setting had sex with a 16-year-old detainee, that would be a very serious offence, which would merit a maximum penalty of five years.

It is important for hon. Members to remember that we are discussing a maximum penalty, which would be used only rarely. Nevertheless, it is right that the courts should have it at their disposal to deal with the most serious cases of abuse. I hope that that argument will commend itself to right hon. and hon. Members on both sides of the House.

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It is important to view the circumstances where abuses of trust might stretch across a spectrum. At one end, there are circumstances—to which I have referred—where someone is held in detention and the maximum penalty might be appropriate. At the other, it is difficult to agree that, for example, teachers would merit such a penalty for consensual relations with a 16 or 17-year-old student where the teacher was, say, 23. In that instance, the lower end of the spectrum might be the most appropriate.

Mr. Hogg

The hon. Gentleman talks about the spectrum in which abuse of trust can take place. I wonder whether he could tell the House—I do not know the answer; he may have given it in the past—why the Government have decided not to extend the penalties and obligations that flow from the clause to those who are in loco parentis within the context of the domestic home?

Mr. Boateng

We have discussed that issue on the Floor of the House and Upstairs. I shared then with the House, and am happy to share now, the principles on which we arrived at our decisions in relation to abuse of trust. The most relevant one in terms of the situation that the right hon. and learned Gentleman describes is the availability of countervailing adult influences. Even though an au pair, for example, might be in a position where she could exercise undue influence due to a position of trust within the household, other adult influences would be brought to bear on the life of the young person that would countervail against the influence of the au pair who found herself in loco parentis.

Mr. Clappison

rose—

Mr. Boateng

That would be the principle there.

Where the line had to be drawn, and it is a matter of judgment in that domestic setting—a private home—it was properly drawn in such a way as to exclude the person acting as a nanny or an au pair, but the maximum penalty needs to reflect the requirement for sentences to express society' s condemnation of the most serious cases within that broad spectrum. It needs to be seen as a maximum, not as the norm. For those reasons, we share the view of members on both sides of the Committee who put forward, and supported, the proposition that we should seek a higher maximum penalty.

For that reason, we hope that the House will accept without Division the proposed increase in the maximum penalty from two to five years.

Mr. Clappison

It would be churlish of me not to welcome the Minister's contribution. One of our amendments in Committee first proposed the increase in the maximum sentence for breach of trust from two years to five years. We thought then that we supported it with a strong and persuasive argument. We followed that up by tabling the amendment for Report.

We are pleased that the Home Secretary has added his name to our amendment because we think that it does much to improve the Bill. Certainly, it is a Bill that could be much improved, and in other respects besides the maximum penalty.

My right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) made an acute point in his intervention on the Minister about the extent of the coverage of the concept of the position of trust. We are far from convinced by the doctrine that the Minister has put forward this evening and the others that he has put forward, which are slightly different, in trying to justify the Government's view of the position of trust.

The Minister referred to the availability of countervailing adult influences as the reason why the Government fixed the line for the position of trust where they did, but, if they really believed in that doctrine, they would have taken many teachers out of the ambit of the clause because, when a child is at school, there are many countervailing influences besides the teachers: other teachers, parents, other adults whom the children will know—

Mr. Boateng

rose—

Mr. Clappison

I shall give way to the Minister—although he did not do me the courtesy of giving way to me earlier—because I know that the Government's proposal has no justification at all.

Mr. Boateng

The hon. Gentleman is most kind, but he knows that there are four principles, to which we have returned again and again: the individual is particularly vulnerable; the location makes the individual particularly vulnerable; the lack of access to other adults and the absence of countervailing influence—that was the one to which I referred the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg)—and the special influence of an adult where the relationship is in loco parentis.

What is so significant about a teacher's role—one does not want to labour the point—is that a teacher is specifically in loco parentis. That stands at the heart of the relationship between a teacher and a pupil. In due course, we shall come to the issue of part-time teachers, but there the other prevailing principle comes into play: the existence of a countervailing influence because of the part-time nature of the teacher 's employment.

Mr. Clappison

The longer the Minister's intervention went on—it went on for a little while—the more confused he became. He has clearly shifted his ground from the original point that he made to my right hon. and learned Friend the Member for Sleaford and North Hykeham, when he referred to the absence of countervailing influences. My right hon. and learned Friend raised the question of in loco parentis. The Minister then said that the key principle is the absence of countervailing adult influences, but when I put the point to the Minister that, in the case of teachers, there were other influences, he returned to in loco parentis, so the Minister uses a bit of a circular argument.

Mrs. Ann Winterton

rose—

Mr. Clappison

Before I give way to my hon. Friend, so that the House understands the argument that we are advancing, let me say that we feel strongly that protection should be given where it is needed. The concept of a position of trust should run much wider than the Government have allowed it to run in the Bill.

Mrs. Winterton

While supporting what my hon. Friend has said, may I refer to the intervention by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and the explanation of not using in loco parentis? May I give the example that is frequently heard about: the uncle, cousin or member of the family who abuses a child? The child does not tell because that person is a member of the family, yet such an offence would not be caught by the Bill. That is an important point. There are known cases—we all know about them. It is disturbing.

Mr. Clappison

My hon. Friend makes an absolutely correct point. Some people in a higher position of trust may be outside the scope of the Bill, compared with some people who are inside it. Detailed examination of the Bill has revealed example after example of potential loopholes and inconsistencies not just as between people who fulfil one of the four conditions in the Bill and people in entirely different sectors, but people within the conditions in some ways. We heard from the Minister in Committee that, for some purposes, in some circumstances, supply teachers would not be caught by the Bill.

Mr. Boateng

indicated dissent.

Mr. Clappison

The Minister shakes his head, but he is on record in the Hansard of the Committee proceedings as saying that, in some circumstances, supply teachers would not be caught by the Bill. However, in the amendment, which originally came from Conservative Members, we are dealing with an increase in the maximum sentence. On that, we agree with what the Minister says.

We made those arguments first. I welcome the Minister's acceptance of the argument that we advanced in Committee that the maximum sentence for such an offence should be judged on its merits, not by reference to other sentences that were perhaps not entirely applicable, particularly the one on unlawful sexual intercourse, which I note the Minister now accepts is too low a maximum sentence, in his personal view. [Interruption.] Well, the Minister expressed his personal view earlier that the maximum sentence for unlawful sexual intercourse was too low. I think that he expressed something similar in Committee and in correspondence. We have been making our case on that for some considerable time, not least in view of the fact that the maximum sentence for indecent assault is now 10 years.

We advanced the same argument during the passage of the Bill that became the Crime and Disorder Act 1998. It is a shame that the Government did not accept the amendment that we tabled then, which proposed the increasing of the maximum sentence for unlawful sexual intercourse. If they had accepted it, we should not be in our present anomalous position. In any event, we feel that five years is more appropriate than the two-year maximum that the Government envisaged before hearing our arguments.

I agree with the Minister that the fact that we have asked for a higher maximum—and the Government now accept that there should be one—does not mean that such a sentence should be imposed in every case of a breach of trust, in which an older person in a position of trust engages in sexual activity with a 16 or 17-year-old. We are talking about a maximum. That maximum, however, must cater for every type of case, including the very worst type.

The Minister cited circumstances in which a maximum sentence of five years, or approaching that length, would be appropriate, but there may well be many others. There may be many cases involving older men, perhaps in their 30s or 40s, who are in a position of substantial authority over younger people. Such a man might lead a youngster into sexual experiences—sexual experimentation—for his own gratification, with no regard for the welfare of the youngster, and possibly with permanent consequences for that youngster. There will be such cases, in which people are convicted of such offences in such circumstances, and, when those circumstances apply and when there is a gross breach of trust with permanent consequences for the youngster involved, a much longer sentence than two years is called for. That was manifestly too low a starting point.

We think that the proposed sentence represents a victory for common sense, and hope that it will continue to be regarded as the maximum, even when the review of sexual offences in general takes place. A five-year maximum will give stronger protection to vulnerable 16 and 17-year-olds, and, as I said at the outset, it would be churlish of us not to welcome the fact that the Government have now accepted our arguments.

Mr. Allan

We will not oppose the change. The Minister gave welcome assurances in describing the broad spectrum of possible sentences, and, in a letter to my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith), the Home Secretary wrote: I must stress that this would be a maximum penalty for use in the most extreme cases but we accept there could be rare circumstances where it could be justified. We can envisage those circumstances. The Minister referred to detention centres, but we are also thinking of residential institutions, especially institutions for those with disabilities, in which such a maximum sentence could be justified.

I was pleased to hear the Minister revert to Latin in describing "in loco parentis" as an important concept. In Committee, when I expressed concern about the definition of in loco parentis in regard to the offences that we are discussing, I was told off for being old fashioned: the Government were trying to move forward and establish clear definitions, suggesting, for instance, the definition of a person regularly involved in caring for, training, supervising or being in sole charge of such persons as a pithy replacement for "in loco parentis".

Our main wish is to establish that there is a difference between consensual and non-consensual offences. I hope that, when he sums up the debate, the Minister will mention indecent assault, and will tell us that the review of sexual offences will examine the way in which the prosecuting authorities deal with non-consensual offences such as indecent assault, as opposed to the offences introduced by the Bill. We feel that, in some of the circumstances that we are discussing, the coercive element in a relationship could be used as a ground to argue that consent had been overridden. In such circumstances, rather than prosecuting on the basis of an offence involving a consensual act—as provided for in the Bill—the authorities could override the consent, demonstrate that to the court and thereby act on the basis of the more serious offence of indecent assault, or similar sexual offences, on the ground that no consent had been given. We hope that the introduction of additional measures will not make us lose the will to demonstrate the lack of consent, and fall back on an offence that may be easier to prove.

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I am pleased that the Minister has said that the matter will be for the discretion of the court. As he will know, we are opposed to mandatory sentences in general, but, in regard to sexual offences, especially the offence that we are discussing, we believe that, when issues of consent are involved and a wide range of possible circumstances exists, it is important to leave the determination of the appropriate sentences to skilled judges, advised by equally skilful lawyers.

We hope that the review will bear fruit in respect of the critical issue of non-consensual indecent assault, as opposed to consensual offences, in due course, but believe that this may be the most appropriate sentence for the extreme and rare circumstances described by the Home Secretary when, in the near future, the Bill comes into force.

Mr. Hogg

I want to make two points. The first relates to my intervention on the Minister's speech; I am grateful to my hon. Friend the Member for Congleton (Mrs. Winterton) for what she said in my support.

I feel that there are circumstances involving abuse of trust that the Bill simply does not address. I am talking about the concept of in loco parentis. The father, the uncle and the person who employs the au pair are just three examples. I well understand why many would think that such people should be subject to the penalties prescribed in clause 2 just as much as those who exercise some other function in the prescribed institutions. The Minister may be right, but I hope that he will think again. The Bill will go to the other place, and, in any event, there is to be a review of sexual law. We should ask whether those exercising the function in loco parentis should be subject to the law that we are now applying to the groups specified in clause 2.

Let me raise a different point, which comes from the opposite direction. Many abuses of trust are clearly very grave. It is serious, and a real abuse, when an older man takes advantage of either a man or a woman in a school, prison or other prescribed institution. Quite different circumstances can arise when there is a close similarity in age between the person who is under 18 and the person who is over 18. I have in mind, for instance, a young teacher who might form a relationship with a pupil of, say, 17. That teacher could be found guilty of a serious criminal offence attracting a sentence of up to five years. It is true that we would not expect the courts to subject that person to such a penalty, but I am nevertheless uneasy about the position that we are creating.

Let me make a suggestion to the Minister. He may care to reflect on it before the Bill goes to the other place, where it can be amended further. My hon. Friend the Member for Hertsmere (Mr. Clappison) referred to the statutory defence applying to those under 24. The Minister might well wish to consider whether, when there is an age similarity—let us take up to 24 as an example—the consent of, say, the Attorney-General should be obtained before there can be a prosecution. There is a risk of injustice, and I am reluctant to leave the matter to the good sense of the prosecuting authorities. I hope that the Minister will contemplate a specific approach to deal with cases that will otherwise fall within the prescribed categories, involving people whose ages are close. I would be greatly reassured if he would do so, bearing in mind the possibility of making the consent of the Attorney-General a condition of prosecution.

Mr. Boateng

I am obliged to hon. Members on both sides of the House for their contributions to a short but important debate. Let me deal first with what was said by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). I accept that we should address relationships that are caught under the umbrella of abuse of trust—relationships that might develop between a 24-year-old teacher and a pupil of 17. Under the Bill as drafted, such a relationship would constitute a criminal offence. Although it is a matter of judgment, I believe that such relationships should be caught by the Bill and subject to the criminal law.

On balance, as a matter of public policy, such relationships should be discouraged. Hon. Members will have a view on relationships between teachers and pupils, and may have experience of the impact on school discipline and the lives of young people if such a relationship develops. Such relationships can be highly disruptive, both of young lives and to school discipline. It is therefore right that such relationships should fall within the ambit of the criminal law.

Such relationships are, however, at one end of the spectrum that we have debated today. Progress on the matter may entail determining how codes of practice, which are envisaged as part of the mechanism created by the Bill, and guidelines to the Crown Prosecution Service might provide means of ensuring that only cases that should properly be prosecuted are prosecuted. There should therefore be a combination of a code of practice—to modify and regulate conduct in the circumstances that we have discussed—and guidelines for those who bring prosecutions to clarify the basis on which prosecutions should be brought.

Mr. Hogg

I am grateful to the Minister for giving a relatively sympathetic reply to my suggestion. Although he may not be going the whole way, he will doubtless think further about the suggestion. However, if we are going to go down the road of codes of practice—which is a course that Governments adopt in dealing with the type of circumstances we are debating—does he accept that it is desirable that the code of practice should take the form of a statutory instrument, so that the House can debate the code and express our views on it?

Mr. Boateng

The Government have already, in Committee, tabled a draft code of practice for consideration. Undoubtedly, in our deliberations in the House, we shall return to that draft—which will be available also to the other place, so that it might inform debates there.

I am reluctant to go down the path suggested by the right hon. and learned Member for Sleaford and North Hykeham in creating a requirement to obtain the Attorney-General's consent to a prosecution. However, I accept the thrust of the argument underpinning the suggestion—that one should apply the criminal law only in circumstances in which doing so is clearly justified. We have made it clear that there would have to be consultation and discussion with teachers' associations and unions in developing a code of practice, to ensure that we get it right.

The hon. Member for Congleton (Mrs. Winterton) and the right hon. and learned Member for Sleaford and North Hykeham raised the wider issue of uncles, aunts and "dads"—who are intermittently involved in domestic life but are not the natural father and are perhaps one of a succession of man friends. Hon. Members will know that some of the most serious cases of child abuse occur in that type of family context—which, as it involves "consensual relations" and is not subject to the law of incest, currently falls outside the criminal law. There is therefore a very strong feeling—which was expressed on both sides of the Committee—that we have to re-examine the law of incest.

Incest is a very complex matter, and we shall have to take advice on dealing with it. The law of incest has developed to protect the gene pool rather than to protect children. Although the Government believe that the time has come to re-examine the law of incest, we do not think of the Bill as a vehicle for changing it. However, we shall certainly expect the sexual offences review to consider the matter, to take evidence on it and to make suggestions on how Parliament might properly address that very real issue.

Mr. Hogg

Will the hon. Gentleman also address the issue—not necessarily now, but in the review—of how to deal with cases involving the natural father? Although it is true that the law of incest may apply in the circumstances that he mentioned, sexual activity falling short of normal sexual intercourse and involving the father is not covered by clause 2. It is difficult to say why it should not be so covered.

Mr. Boateng

Sexual activity between the natural father and his son also does not constitute incest—precisely because it is not linked to the possibility of procreation and consequent pollution of the gene pool. It is clearly a mischief that should properly be remedied. We shall expect the sexual offences review to do so.

Mrs. Gorman

Surely society's attitude towards incest long predates any concept of gene pools? Is not that attitude part of the structure, and taboos, on which our society is built? Is that not why it is viewed with such horror in our society?

Mr. Boateng

I was not suggesting for one moment that it should not be viewed with horror. I was merely pointing out what I thought was the generally accepted view, that the taboo developed because it was thought to be genetically undesirable to make connection with one's own relative.

Mr. Bercow

What about moral concerns?

Mr. Boateng

The hon. Gentleman makes an interesting point. However, the moral concerns arise from concerns to preserve, so far as possible, the health of the gene pool. Although this is not the time to deal with that interesting byway, the sexual offences review will undoubtedly wish to deal with it. Our modern concern is with child abuse, and there is no doubt that child abuse has flourished in the circumstances described by the hon. Member for Congleton.

The hon. Member for Sheffield, Hallam (Mr. Allan) made, as ever, some interesting and important points. He did so with great succinctness and brevity, in stark contrast to some of his fellow Liberal Democrat Members, who are sadly and inexplicably absent from the Chamber. The Government will ensure that the code of practice and the review take on board the specific circumstances and instances that he outlined in his speech. Those matters will have to fall within the ambit of the review's deliberations.

I should tell the hon. Member for Hertsmere (Mr. Clappison) that, although I am only too pleased to see that it is possible to arrive at some bipartisan—or tripartisan—unanimity on the issue, I am sure that he will wish to pay tribute to my hon. Friend the Member for St. Helens, South (Mr. Bermingham), who, sadly, is not able to participate in today's debate. In the debate on Second Reading, my hon. Friend intervened in my speech no fewer than twice, precisely to gain from me the assurance that I gave that we would return to the issue of increasing the maximum sentence both in Committee and on Report. Therefore, although I am happy to see the extent to which it is possible to make common cause on the matter, I should say that the issue was raised first by my hon. Friend. He deserves credit for that, even in his absence.

On that basis, I hope that it will be possible for the House to approve the amendment without a Division.

Amendment agreed to.