DISQUALIFICATION (Hansard, 3 November 2003)

HC Deb 03 November 2003 vol 412 cc579-84 579

§ '(1) Notwithstanding the provisions of section 28 of the Criminal Justice and Court Services Act 2000 (c.43) an individual—

(a) who is convicted of any offence under sections 6 to 17 inclusive of this Act, and
(b) who receives a qualifying sentence

is, subject to subsections (2) to (4) below, disqualified from working with children.

§ (2) Where an individual believes that he should not be disqualified from working with children then he shall, at the time of advancing a plea of mitigation, apply to the court for a declaration that he is not disqualified.

§ (3) Where a court hears an application from an individual under subsection (2) above—

(a) it shall hear representation from both the individual and the prosecution, and
(b) it shall only declare a person is not disqualified to work with children if, having regard to all the circumstances, he is satisfied that the individual is unlikely to commit any further offence against a child.

§ (4) Where a court does declare that a person is not disqualified from working with children—

(a) it shall say in open court the reasons for making this declaration; and
(b) the provisions of subsection (1) will not apply to the individual named in the declaration.

§ (5) For the purposes of this section "a qualifying sentence" shall mean—

(a) a term of imprisonment of at least twelve months;
(b) a community rehabilitation order of twenty-four or more months duration;
(c) a community punishment order of one hundred and twenty or more hours duration;
(d) a community rehabilitation and punishment order, where the rehabilitation order component is of at least eighteen months' duration, and the punishment order component: is of at least sixty hours duration.

§ (6) A person who is disqualified from working with children under this Act shall be disqualified from working with children for the purposes of section 28 of the Criminal Justice and Court Services Act 2000 (c.43).'.—[Sir Paul Beresford.]

§ Brought up, and read the First time.

§ Sir Paul Beresford
I beg to move, That the clause be read a Second time.

§ Mr. Deputy Speaker (Sir Alan Haselhurst)
With this it will be convenient to consider the following amendments: Government amendment No. 8.
Amendment No. 146, in clause 28, leave out subsection (b).

§ Sir Paul Beresford
I am afraid that this is the second occasion in a row on which a flawed amendment has been tabled.
As the Minister is aware, I first raised this matter in Committee—[Interruption.]

§ Mr. Deputy Speaker
Order. I am sorry to interrupt the hon. Gentleman. Could hon. Members who are not staying for this debate please leave the Chamber, as their conversations are causing disturbance?

§ Sir Paul Beresford
The reference in the new clause to sections 6 to 17 inclusive", which is clearly not appropriate, should read "clauses 5 to 14 inclusive".
The reason why I raise this issue again is that, as the law stands, paedophiles convicted of sexual activities against children must be banned from working with children as part of that conviction. The simple problem is that, in the courts, the Crown Prosecution Service, or the court, on at least one occasion—I have not checked whether there are others—has simply forgotten. I want to press the Government to consider making that ban automatic.
The issue was brought to my attention by the recent case of Luke Sadowski, an individual who attempted, through the internet—initially in relation to the United States, then back in this country—to purchase a young child for sex. Fortunately, as he arrived for what he thought was the collection of his purchase, he met policemen. He arrived with an imitation firearm, and was taken to court after the usual procedures. During those procedures, his accommodation was inspected, and it was alarmingly clear from the equipment that was there, and from the attitude picked up from the information available there, that this young man was an appallingly dangerous individual to children. To make matters even worse, he was a trainee teacher. The case went to court, he pleaded guilty, but the court forgot to impose the ban. That is the difficulty.
When I raised the issue in Committee, the Minister said that he would reflect on it. The purpose of placing this slightly disturbed new clause on today's agenda is therefore to give the Minister an opportunity to tell us 581 his thoughts on how to overcome this problem, so that future Luke Sadowskis will be automatically banned from working with children.
Two amendments are to be considered with the new clause, one from the Government and one tabled by my hon. Friend the Member for Beaconsfield (Mr. Grieve), who will pick up from my comments.

§ Mr. Grieve
I welcome my hon. Friend's new clause, and I hope that the Government will be able to respond positively in the spirit in which it was moved.
It is clear that a serious problem exists in this area, and I shall not repeat the point that has been raised by my hon. Friend. We know of one case in which the court was unable to do what it should have done. On top of that, it was not even able to correct its mistake subsequently. That must raise the question of whether an automatic provision should be introduced, if that is what is desirable. In those circumstances, of course, that automatic provision could be rebuttable by the person raising it in court. In that sense, the new clause is extremely simple—it was complex to draft, but its intent is simple. As this is not a hypothetical matter, and an example of this problem has arisen, I hope that the Government are able to respond positively to his proposal
I was slightly surprised that amendment No. 146, which was tabled by me and my hon. Friends, was grouped with other amendments under the heading "Protection of under 16 year olds", because, in fact, that it not what it is about, as the Minister is probably aware. It is about whether sexual activity between cousins aged between 16 and 18 should be allowed to take place if they are living under the same roof. This point was raised in Committee, and it bears repetition. The Government, understandably, have wished to provide a substantial measure of protection for those who are in the care of others. As I understand it—the Minister will correct me if I have any of this wrong—the intention behind clauses 26 to 28 is to ensure that when somebody is in a family group, the protection to prevent sexual activity between the carer and the person cared for should extend up to the age of 18. That is a principle with which I have absolutely no disagreement whatever.
In addition, the Government wish to impose certain blanket prohibitions in relation to those who may not be caring for others but are in a close familial relationship—the obvious one, even if it is not within the prohibited degrees of sexual intercourse within family relationships, is that of a stepfather and a stepson. I have no disagreement with that either. Included in the definitions of family relationships in clause 28, however, under subsection (3), is the following: The relation of A to B is within this subsection if A and B live or have lived in the same household, or A is or has been regularly involved in caring for, training, supervising or being in sole charge of B, and … A and B are cousins". I interpret that as meaning that even if there is no caring relationship between the two individuals, if A and B are cousins and living in the same household, sexual relations between them are prohibited between the ages of 16 and 18, even though they are perfectly permissible in our general law. If I think only of Members of this 582 House, I am aware of at least one of my colleagues on the Conservative Benches who is the son of first cousins who are married to each other. This provision has therefore puzzled me somewhat.
If the Government's purpose is, for understandable reasons, to prevent, for example, a first cousin aged 28 having sexual relations with another cousin who is aged 17, I fully endorse that principle when there may be a caring connection between the two. However, that can be provided for elsewhere in this subsection. What the Government have done is to provide a blanket prohibition in relation to two first cousins who may meet under the same roof at the age of 17 starting a sexual relationship, when in any other context it would be perfectly permissible. It is a small matter that may affect very few people, but I remain troubled by the inclusion of the provision in the Bill in this way. I do not see the sense of it.
6.30 pm
Surely the purpose behind the Minister's intent in these clauses is to ensure that those in a caring relationship do not get involved in a sexual relationship with those aged under 18. I wholly applaud that, but the provision cannot be designed to catch two 17-year-olds who happen to live together in the same household when, in any other context, their commencing a sexual relationship would be completely permissible. Even at this late stage, I hope that the Minister will take these points on board.

§ Paul Goggins
I thank the hon. Member for Mole Valley (Sir Paul Beresford) for all that he has done in Committee and more widely as an active member of the taskforce for child protection on the internet. He rightly said that I said that I would reflect on the points that he made in Committee. I have reflected on them and, sadly from his point of view, I have concluded that I cannot accept his new clause. I hope that he will understand the reasons for that and feel comfortable about withdrawing it.
It is common ground between us that Luke Sadowski should have been disqualified. There appears to have been an error in the court procedure, but it is worth pointing out that the Department for Education and Skills operates list 99, which disqualifies teachers and trainee teachers from being able to work with children. I also confirm that the criminal records are checked for anyone who applies to become a teacher or trainee teacher.
I have raised the issue at the heart of the hon. Gentleman's concern with the Crown Prosecution Service and the Judicial Studies Board, and they have made a commitment to me that they will reissue guidance to prosecutors and improve the training of the judiciary to cover this deeply regrettable lapse, which should not have happened.
The hon. Gentleman accepts that we cannot have a completely automatic system of disqualification. His amendment refers to the fact that there would be certain penalty thresholds and it would enable someone to appeal against disqualification. Even if disqualification were automatic, the court would still need to state that openly in court to clarify that an offender had received one of the qualifying sentences and to ensure that the 583 offender knew that he was disqualified. That would enable him to appeal if he wished to exercise that right. Furthermore, it would only be an offence to apply for a job working with children if the offender knew that he had been disqualified. It would therefore be essential for that to be made known in court. I hope that the hon. Gentleman understands that the answer is to ensure that court procedures work properly, as they should have done in the case of Luke Sadowski and as they must do in future.
We must ensure that disqualification happens automatically even if, in law, it is not automatic. I give the hon. Gentleman the clear undertaking that I will follow up his concerns—they are also my concerns—to ensure that disqualification is applied in all the appropriate circumstances.
Government amendment No.8 will raise the maximum penalty for the offence of "Meeting a child following sexual grooming etc."—as clause 16 is headed—from seven to 10 years' imprisonment. This follows a positive and convincing debate in Committee in which strong arguments were advanced for raising the penalty to enable appropriate sentences to be passed in the most serious cases.

§ Mr. Grieve
I realise that I failed to welcome what the Government have done. I do so wholeheartedly, and I am grateful to the Minister for taking on board the representations that have been made.

§ Paul Goggins
I am grateful to the hon. Gentleman. In a sense, this amendment exemplifies the spirit in which we conducted the Committee stage. A great deal of consensus emerged.
A situation could arise in which a paedophile with many previous and serious convictions had repeatedly communicated with a number of children on the internet and in which there was clear evidence that he intended to commit perhaps a violent sex offence against one or more of them. He might set off to meet one of these children for this purpose, but the police might intervene to protect the child. We would all be clearly relieved that the offence of carrying out the sexual assault on the child did not take place but, in such cases, a maximum sentence of seven years' imprisonment may not be adequate. The proposed new maximum penalty of 10 years brings the offence in clause 16 into line with the preparatory offences in clauses 61 to 63 that also carry 10-year maximum penalties.
The hon. Gentleman spoke to amendment No. 146, and I remind the House that the child familial sex offences are primarily designed to protect children up to the age of 18 within the family environment where they are particularly vulnerable to sexual abuse and exploitation. Because of the balance of power within the family unit and the close and trusting relationships that exist within it, the family can create particular opportunities for exploitation and abuse.
A great deal of thought was given to the scope of this offence and the familial relationships that should be covered. It is clear that the most important factors are the proximity of the relationship and the balance of power that exists between the abuser and his victim, and these issues can extend beyond the immediate blood relatives of a child.
584 The definition of the family unit also needs to be drawn widely to reflect the fairly loose structure of the modern family and the sometimes transitory nature of familial relationships. Cousins have always been included in the scope of these offences and this view was generally supported in another place. The only issue raised for discussion in Committee there was the definition of the term "cousin" and the wish that this should be restricted to first cousins. That is the effect of the definition in clause 28(5)(b). I hope that the hon. Gentleman will be reassured on that point.
We believe that it is right to include cousins within the scope of these offences in circumstances where they live, or have lived, in the same household as the child or if they are, or have been, regularly involved in caring for, training or supervising the child. In such circumstances, when one cousin is so closely involved in the life of another, there will clearly be the opportunity for exploitative behaviour to take place and for an unsuitable relationship to develop. The hon. Gentleman asked for the reasons for our approach, and I have outlined why I cannot accept his amendment. I ask him not to press it.

§ Sir Paul Beresford
This has been an unusual Bill, and it was particularly so in Committee. The Committee kept to the timetable because we had a genuine interest in targeting our discussions on certain issues. The same thing has happened this evening. The Government have shifted their posit ion in the other place and here in response to the pressures put on them, and this group of amendments is an example of that.
Amendment No. 146 pressed for the response that we had asked for in Committee. I think that my hon. Friend the Member for Beaconsfield (Mr. Grieve) will be satisfied that we have at least received some response.
We certainly support Government amendment No. 8. The Minister was pressed by both sides in Committee and we give him his considerable due for responding in the correct way even if he did not respond in quite the way that we would have liked.
New clause 5 was tabled to make sure that the Government were aware of the slips in court procedures that might allow a convicted and vicious paedophile to be let loose on children. The Minister has taken our points on board and clearly acted upon them. His face in Committee suggested that he would be helpful, and he has been this evening. I therefore beg to seek leave to withdraw the motion.

§ Motion and clause, by leave, withdrawn.