HL Deb 09 November 1976 vol 377 cc311-7

9.1 p.m.

Report received.

Clause 1 [Meaning of "rape" etc.]:

Lord MONSON moved the following Amendment:

Page 1, line 20, at end insert— ("(3) A boy under the age of 14 years shall not be presumed to be incapable of the offence of rape only by reason of his age.").

The noble Lord said: My Lords, when I referred in Committee last week to the matter which is the subject of this Amendment I said that it had been first considered during the Third Reading in another place, which occurred only a few weeks ago. I was not aware then that it had been discussed much more fully in Standing Committee as long ago as 31st March. This Amendment, therefore, is identical to the one which was moved in Standing Committee at that time.

The wording of the Amendment is self-explanatory. Its purpose is to rectify a self-evident nonsense of the kind that brings the law into disrepute. I am sure we all agree that the law should be brought into disrepute as infrequently as possible. Its coincidental effect, if agreed to, would be to bring English law on this subject into line with Scottish law. I do not normally subscribe to the assertion that the Scots are habitually more pragmatic, more commonsensical and more down to earth than the English, but I am bound to say that in this instance it is hard to deny.

For any noble Lord who may be unclear about what I mean, let me quote from the 1961 edition of Professor Glanville Williams's work on criminal law. He writes: By a strange rule, a boy under 14 cannot be convicted of rape, or assault with intent to rape, or unlawful sexual intercourse, being irrebuttably presumed by law to be physically incapable ". The mover of the Amendment in another place went on to say that 100 witnesses could be brought to prove that the boy had had sexual intercourse, and the boy could admit it, but nevertheless the law would say that he had not had sexual intercourse because the law believes, or behaves as though it believes, that he could not. This is a case where the law is flying straight in the face of common sense and the facts of life. Why should the law make a presumption that is not in accordance with biological fact?

Clearly the assumption underlying the present law is ridiculous and is recognised as such by anybody with any experience of life. However, the Amendment was defeated in another place on the basis of three main arguments, so far as I interpret them. The first argument, which was advanced by an honourable and learned Member, was that the law would have been amended a long time ago if it had been thought to be wholly unsatisfactory. No doubt a long time ago, and even as recently as a few years ago, there may well have been nothing very much to worry about, but things have changed. There is first—I concede that this is a minor point—the slightly earlier onset of puberty to take into account. Of far more importance is the growing incidence of violence in our society.

One of the forms that this increasing violence takes is, unhappily, the exceptionally distasteful and unpleasant one of gang rape: I forbear to use the more forceful colloquial expression. To some extent this is perhaps stimulated by certain films. Much as I dislike censorship, if ever there were a case for censorship I believe that it is in the case of those films which feature this kind of behaviour and therefore stimulate the minds of young people to endeavour to copy it. Since 31st March we have studied the case of the young Moroccans who carried out a most brutal assault on a young woman in Earl's Court. We have read that one of the defendants could not be charged with rape by virtue of being under the age of 14. Is it not possible that had the Members of the Standing Committee been able to foresee this case in March they might have arrived at a different decision?

The next objection was that accepting this Amendment would mean that one anomaly would be left outstanding, in that a charge of sodomy could still not be brought against a boy under the age of 14. First, sodomy is not necessarily an offence involving force. Secondly, I suggest that it is a static if not a declining crime, whereas rape in contrast is very much on the increase. There is plenty of time, therefore, to deal with this other offence at a later date; besides which, to include sodomy now would necessitate a change in the Long Title of the Bill.

The final objection which was advanced by another honourable and learned Member in another place was that one ought to beware of attacking the principle, thus putting the whole Bill into jeopardy. But what principle is being challenged? Even if one regards the Children and Young Persons Act 1969 as sacrosanct, nevertheless it is still the case, as the mover of the Amendment in the Commons pointed out, that a boy under the age of 14 can be charged with murder. If in the course of raping a girl he murders her, he may be charged with her murder but not with rape. He went on to say that this was downright stupid.

It must be said that since March of this year the Children and Young Persons Act has come under considerable criticism from widely varying quarters. In opposing the Amendment the Minister of State said that a youth of under 14 could instead be charged with indecent assault and his case would then be dealt with simply as being "in need of care and protection". I am bound to say, with respect, that the person in need of care and protection seems to me to be the unfortunate victim. I suggest that the perpetrator of this offence should be dealt with rather more stringently.

This is not a Party political matter. Both Labour and Conservative Members supported the Amendment in another place, while other Labour and Conservative Members opposed it and succeeded in defeating it. I believe that acceptance of the Amendment would accord with the state of public opinion, with common sense and, above all, with the interests of justice. I beg to move.

Lord WILLIS

My Lords, I think the House will be impressed by the powerful arguments expressed by the noble Lord, Lord Monson, and I think we should have some sympathy with them. It is clearly ridiculous to suggest that a boy of 14 should not be capable of sexual intercourse. I think we could all quote from our own experience hundreds of examples of boys who are more than capable. However, I hope he will not press this Amendment because I think in a certain sense it is irrelevant to this particular Bill: irrelevant only in the sense that it is rather like taking a wheel out of the mechanism of a clock. If you take one wheel out of the mechanism of a clock you have then to alter all the other wheels. I want to suggest to the noble Lord, Lord Monson, that what he has put his finger on here is just such a wheel that involves a change in the whole complex of our law, and that to press it would in fact make it very difficult to get this simple and straightforward Bill on to the Statute Book.

The rule that a boy under the age of 14 is incapable of rape is really only part of a wider rule that such a boy is incapable of sexual intercourse. We may think that that is out of date and outmoded; nevertheless it happens to exist in our body of law and that law has a very wide application. It affects every sexual offence, including sexual intercourse and involving offences of an unnatural sexual nature, some people might think, like buggery, sodomy and so forth. We believe that it would be wrong to alter the rule in this single Bill, in this single application, while allowing it to survive in other offences, and we suggest that the best approach is to leave it to the Criminal Law Revision Committee, assisted by the Policy Advisory Committee on Sexual Offences, who will have the opportunity of considering the necessity of altering the rule over the whole area.

In short, what we want to do is to keep this Bill very simple and very short. We recognise that in this particular point it may be defective, but if the body of criminal law is altered as a result of discussions by the Criminal Law Revision Committee it will apply to this Bill as well, and therefore we shall all be happy. On that basis I ask the noble Lord, Lord Monson, not to press his Amendment.

9.12 p.m.

Lord McCLUSKEY

My Lords, in the absence of the noble Lord, Lord Harris of Greenwich, I may say that the Government view is exactly as expressed by my noble friend Lord Willis. Indeed, I cannot see that I can fruitfully add anything in relation to the general matter, but in view of the argument that was put forward, and with respect to it, perhaps I may say something which the noble Lord, Lord Harris of Greenwich, might not have been able to say about the Scots law. As the noble Lord, Lord Monson, pointed out, the rule in Scotland is not the same as the rule in England, and as a result in law a boy under the age of 14 may be convicted of rape. But to give your Lordships some notion of how practical and important that is, I may say that there is only one recorded case in our books of a boy under the age of 14 being convicted of rape. That was one Robert Fulton, who was convicted in 1841 at the age of 13 years and 10 months. So although it may be that in theory Scots law does not contain what was described—although I do not accept the term—as a "self-evident nonsense", in practice perhaps the difference is not a very important one.

Therefore in my submission that reason is not a very compelling one at this stage, and surely, given the circumstances that at the present time the Criminal Law Revision Committee, assisted by the Policy Advisory Committee on Sexual Offences, is, as my noble friend Lord Willis has said, seized of the situation, the better course is to allow the matter to be considered in that calm way and, if a change has to be made, let it be made.

Lord SOMERS: My Lords, I should just like to ask the noble and learned Lord whether he would agree that, since the date that he has mentioned, there is evidence to show that physical develop- ment takes place a good deal earlier than it did then?

Lord McCLUSKEY

My Lords, certainly I would not dispute what the noble Lord, Lord Somers, has said. But bearing in mind that that is the rule, and is still the rule today, in Scotland, as a practical matter it does not lead to charges of rape. Therefore, I do not think the argument is as compelling in practice as it sounds in theory. So I join in urging noble Lords not to support this Amendment, and I invite the noble Lord, Lord Monson, to withdraw it.

The Earl of MANSFIELD

My Lords, speaking as an English member of the Bar, I would just say some possible words of comfort to the noble Lord, Lord Monson. It is, I suggest, not a matter of practicality. The state of the law, perhaps, to the outsider may seem absurd. It is much more a two-fold question of philosophy, and really of what I might call penal mechanics. If society wishes to deal with boys who commit the act of rape, in my submission it is not going to deal with them in the way in which someone who is an adult will be dealt with. Society will do something which it hopes will persuade that boy to lead a better and more fruitful life when eventually (because certainly he will be incarcerated to some degree or other) he is released back to society.

It may be—I do not know—that the noble Lord will agree with the proposition that there is not much point in merely branding the boy as a rapist and having him convicted of the crime if we are not going to deal with him as one would with the adult rapist. So although the law may look an ass, as to the uninitiated it does, it is quite a benign ass on this occasion, and I can assure the noble Lord from my own experience that boys who do commit the act of rape are not merely turned on to the streets to laugh about it.

Lord MONSON

My Lords, quite clearly, at this late hour, after a long and exhausting day—in fact after a number of exhausting weeks—I have no intention of pressing the Amendment, particularly as I do not seem to have convinced any noble Lords, with possibly one exception, that the arguments against the Amendment are invalid. We have had a useful discussion. We have aired the subject. I would only say to the noble Earl, Lord Mansfield, that I do not really see the difference between a boy of 14 years and one month and a boy of 13 years 11 months, so far as treatment is concerned. I do not see why there should be a sharp cut-off on the 14th birthday. However, that is all that is to be said at this point, so I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.