HL Deb 10 April 2003 vol 647 cc348-70

11.42 a.m.

Lord Falconer of Thoroton

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 26 [Sections 18 to 22: sexual relationships which pre-date position of trust]:

On Question, Whether Clause 26 shall stand part of the Bill?

Baroness Blatch

Clause 26 exempts from prosecution those who were in a sexual relationship immediately before a position of trust arose. It introduces an entirely new defence to a charge of abuse of trust. That defence is not present in the existing law on abuse of trust brought in by the Sexual Offences (Amendment) Act 2000. The clause creates a blanket defence to all abuse of trust offences, whether created in 2000 or under this Bill. The clause represents a reversal of Government policy.

I shall illustrate the turnaround that there has been. I shall quote from the Home Office guidance on abuse of trust issued in 1999 in the run up to the 2000 Bill. That guidance is very firm—so firm that it grudgingly accepts a marriage exemption such as that now found in Clause 25 of the current Bill. In explaining the intention behind the 2000 Act, the guidance states: There would also be a defence if the parties were married to each other before the sexual relationship takes place. As a matter of good practice, however, we would not expect those married to remain in a relationship of trust". In other words a teacher who wants to marry a pupil must not under any circumstances consummate the marriage until the wedding night. If they do marry the teacher should quit his job. In 1999 the Home Office was worried that a teacher could get around the Bill by marrying a pupil. Now the pendulum has swung to the other extreme. In 2003 under Clause 26 a teacher can get around the Bill by having a one night stand with a pupil.

I quote again from the 1999 guidance, any sexual relationship within a relationship of trust is unacceptable so long as the relationship of trust continues". The guidance states that the reason for this is, A sexual relationship itself will be intrinsically unequal within a relationship of trust and is therefore unacceptable. It is also inappropriate since the 'professional' relationship of trust would be altered … given the inequality at the heart of a relationship of trust, the relationship of trust should be ended before any sexual relationship develops". That is precisely the point. It is the Government's own guidance. One cannot be in a position of trust and have a sexual relationship. Under the 2000 Act a defendant could not excuse himself by claiming that he was in a sexual relationship immediately before the position of trust arose. The Government thought that that was unacceptable, so the legislation contains no such defence. Neither should this Bill.

Clause 26 creates a serious loophole in the abuse of trust legislation; a loophole which I believe will be exploited to thwart many prosecutions. Under the clause, to escape conviction, all an accused person would have to show was that he had a sexual relationship with his victim prior to taking up his position of trust. Abuse of trust offences by their very nature are those most likely to have a young person spring to the defence of an adult who has abused their trust. By definition, prosecutors are not arguing that force has been used by the perpetrator, in which case a charge such as rape would have been laid. Instead, the young person has ostensibly consented.

The raison d'etre of the abuse of trust offence is that such consent is not real consent. The Government have decided that the risk to a young person of being manipulated is so great that such a relationship should be unlawful. The clause allows a defence which manipulative older persons can rely on routinely to escape prosecution. It is a defence that is much too easy to abuse. For example—a 16 year-old boy transfers to a new school. A 30-year-old female has sex with him and begins an intense relationship with the young man. The teacher is arrested for abuse of trust. She lies, claiming that their relationship started up before the boy started at the school. The boy is besotted with the teacher and agrees to back up her story. The police have to drop the case.

Clause 26 provides a defence if there was a sexual relationship "immediately" before the position of trust arose. That could presumably start up the weekend before term starts. Clause 26 could turn a one night stand into an alibi for abuse of trust. Indeed under Clause 26 it need not even be that.

For example—a 40 year-old male teacher starts his employment at a new secondary school on the first Monday of September. In a pub on the Saturday night before the start of term, the teacher meets a 16 year-old girl who attends the school. They get talking and the teacher realises that she is probably going to be in his A-level class. He ingratiates himself with the girl. She allows him to fondle her in a manner which is clearly sexual. After term begins, the teacher continues his relationship with the girl, who trusts him because of his position as a teacher and does not want to upset him because he is responsible for marking her work. He persuades her to have sexual intercourse with him. The girl's pa rents are concerned that she is out every night, and report the matter to the police. They are powerless to act, since the girl raises no complaint and the teacher argues a Clause 26 defence—that he had already had a sexual relationship with the girl before the position of trust arose.

In the area of education, the abuse of trust offence is tied to an institution. The teacher must regularly teach at the same school attended by the young person. Therefore Clause 26 will aid those manipulative adults who change their jobs in order to be in the same school as the young person whose trust is abused. Teachers from one school often meet pupils from another. Extra-curricular activities provide plenty of opportunities for this. Pupils who take part in inter-school competitions, sporting contests, or joint field-trips will often meet teachers from other schools. Many teachers also volunteer for other non school-related youth work, such as Scouts and Brownies. That is a particular practice of paedophiles.

It is possible that a teacher could have a sexual encounter with a 16 year-old from another school in one of those settings, relying on his position as a teacher. He would not be caught by any of the abuse of trust provisions because Clause 23(5) requires that the teacher and pupil must be at the same school. If the teacher then took a job at the child's school, he could continue the abuse of trust, free from legal sanction. He could argue that they already had a sexual relationship "immediately before" the position of trust arose.

What about the case of a paedophile who changes his job in order to gain access to young people whom he can abuse? It is a well-established fact that paedophiles often seek to put themselves in positions of trust over young people. Clause 26 hands them on a plate a technique for gaining immunity; they need only start the abuse before the position of trust arises. They can begin the relationship in a social setting or from a position of trust that is not covered by the Bill. In our debates on the second day in Committee, it was demonstrated clearly that there was a good number of such positions of trust. The abuser can then move into a position of trust from which they can continue and even intensify the abuse with impunity.

I shall give another example. Over a period of five years, a male social worker is assigned to help a family because of abuse of trust by a violent father. The social worker forms a relationship with an 11 year-old boy in the family, and the boy completely trusts the social worker. It is a common occurrence. After five years, the family is re-housed in a residential family centre, and the social worker takes up a job there a few months later. The police are tipped off by another member of staff that there is a sexual relationship between the social worker and the boy. The police suspect that the social worker may be a paedophile who groomed the boy for abuse over several years and took up the appointment at the family centre in order to be close to the boy, who, by this time, is 16. The social worker claims that the sexual relationship began when the boy was aged 16 and before he started his new job. He claims a Clause 26 defence, when arrested for abuse of trust. The boy supports his story. The police are powerless to act.

Such a case is not far removed from the sort of abuse that occurred in north Wales and was exposed by the Waterhouse report. That report showed that child abusers changed their jobs in order to abuse young people. The report also showed that it was not at all unusual for 16 and 17 year-olds to be abused. Some of the abusers deliberately waited until those whom they wanted to abuse had reached 16. For example, the social worker Jacqueline Thomas groomed a boy for abuse but did not have sexual intercourse with him until he was 16. One of the most horrifically abused boys in the report, boy "B", was abused by infamous paedophile Gary Cooke only after he had reached the age of 16.

Such examples show that the exception simply cannot be allowed to remain in the Bill. If it is thought right to criminalise abuse of trust, the law should not contain unjustified exceptions. If it is wrong for teachers to have sexual relationships with those whom they teach, a teacher must make a decision: he can maintain either the sexual relationship or his professional position. If Clause 26 remains in the Bill, a teacher who starts a sexual relationship the day after term starts will commit a criminal offence, but the one who starts it the day before will not. In the first case, such activity will be an abuse of trust with a potential five-year custodial penalty; in the second, it will be fully defensible, and there will be no case to answer.

Clause 26 breaches the principle, which, until recently, the Government strongly endorsed, that those in positions of trust should not have a sexual relationship with those in their care. That principle should be maintained under the Bill, as under the Act. We should offer protection, in particular, to those most vulnerable to such activity. I beg to move.

Baroness Noakes

My noble friend Lady Blatch has raised some important concerns about Clause 26. I find it a difficult area. In many ways, I find it more finely balanced than my noble friend does. I can see, on the one hand, that there may be circumstances in which a relationship between a child and somebody who later acquires a position of trust is not harmful. It is difficult to see why we should make something unlawful because of a change of circumstance. However, as my noble friend pointed out, people have choices in life and could choose to resign from a position of trust or find some other way of removing themselves from such a position.

My concern is that allowing pre-existing relationships would subtly undermine the basic prohibition created by the abuse of trust provisions. That would send the wrong message. We want the abuse of trust provisions to be strong and effective and to send a strong signal. I hope that the Government will consider the clause again.

Lord Monson

Time and time again, I find myself in agreement with the noble Baroness, Lady Blatch, on a wide variety of subjects—but not on this occasion, I am afraid.

The point is that the relationships ante-date the assumption of a position of trust by the older person, who may, after all, be only slightly older. The allegedly naïve and innocent 16 or 17 year-old could not have been swept off his or her feet at the outset by the exalted status of the older party. They would have met on level terms, so to speak. It seems cruel, on principle, for the state to break up an existing relationship for no compelling reason.

Baroness Carnegy of Lour

I listened carefully to what my noble friend Lady Blatch said. It strikes me rather strongly that the effect on a class being taught by the person with the previous relationship would be formidable. Children recognise acutely when sexual relationships exist. I tried to imagine what it would be like to be the parent of a child in a class where that was known to be going on. It would be difficult for that class to operate properly. I am not sure whether my noble friend made that point, but it is a powerful one.

I see the point that the noble Lord, Lord Monson, has just made. It is, of course, unkind to break up a relationship in that way, but, as my noble friend said, that person does not have to teach that class. That is an important point, and the Government should think seriously about it. Educationally speaking, it would not be doing the school a good turn.

The Earl of Listowel

I shall make a brief point on the issue of trust. It must be damaging for a child to have her or his trust abused by an adult. I want to point out the wider context of the issue. As the Minister has often said, we are not here, at the moment, to address those broader issues, but we need to keep them in mind.

We should keep in mind the fact that, often, young people who have had poor experiences—perhaps, they have been abused themselves—feel attracted to social work. They want to care for others because they identify with other children who have suffered. However, such young people may not have come to terms with their own experience and may be weak and vulnerable. They may go out to help others, without necessarily being fully equipped to do so. The Minister should bear in mind the necessity properly to train and support those working with vulnerable children who trust in them. I am not, in any way, excusing the abuse of trust, but, while we talk about punishment, we must remember our duty to support and train such workers. We must remember how poorly trained and supported staff in children's homes, for instance, have been.

Lord Falconer of Thoroton

This is an important issue, which we must consider extremely carefully. The protection of children is at the heart of the Sexual Offences Bill, and we are, as noble Lords will know, introducing several different offences to protect children from exploitative sexual acts.

The offence of abuse of trust is designed to protect a child from abuse in circumstances in which an adult holds a position of trust or authority in relation to the child—for example, in a residential home, a detention centre or an educational establishment of any sort. The primary motivation for introducing the offence is the need to protect young people aged 16 and 17. If they are under 16, they will be protected by provisions relating to other offences. We are dealing with children who are over the age of consent but are vulnerable to having the trust that they repose in somebody manipulated to the advantage of the defendant, with a view to that defendant having a sexual relationship with them.

As the noble Baroness, Lady Blatch, rightly said, the offence introduced in the Sexual Offences (Amendment) Act 2000 includes an exemption for any lawful sexual relationship that existed immediately before the commencement of that Act. The Act has been in place for more than two years, during which time any lawful relationship that pre-existed it will have moved out of the scope of the offence, by virtue of the fact that the younger party must now be over 18.

This Bill provides a similar exception in Clause 27 in relation to the new positions of trust that have been incorporated into the Bill. The noble Baroness, Lady Blatch, has tabled an amendment to strike Clause 27 from the Bill, and for the reasons that I shall explain during our debate on that amendment we agree with her thinking and intend to remove the clause. We are with the noble Baroness on that point. The clause provides that if a relationship is lawful only because it began before the enactment of the Bill and continues after enactment, that should not be a defence.

But in Clause 26 we are considering something else—a relationship between person A and a young person aged between 16 and 17 years which is lawful. The law explicitly does not intend to interfere with such a relationship and so the relationship of trust has not been manipulated in order to sustain that relationship. We must be clear where the line is drawn. I interpose at this stage to stress that it is the relationship that the Act defines as a defence, not a one-night stand, as referred to by the noble Baroness. That would not constitute a relationship. We are considering lawful relationships.

Taking the obvious example, after the relationship has commenced the defendant begins to teach the person aged 16 to 17 years. Plainly that relationship has not been brought about by the relationship of trust; it is a perfectly lawful relationship. We have thought very carefully about this point. We believe that it would be going too far in circumstances where it is plain that iniquity has not occurred; namely, the relationship was not abused, leading to the young person aged between 16 and 17 being victimised. We consider that, overall, the provisions of Clause 26 strike the right balance between keeping interference by the state into the private lives of individuals to a minimum and maintaining maximum protection under the law for children from sexual abuse and exploitation.

The noble Baroness is absolutely right to say that the clause introduces a new position from that taken under the Sexual Offences (Amendment) Act 2000, but I repeat that we believe that we have struck the right balance. I hope that Members of the Committee will take the same view and agree that Clause 26 should stand part of the Bill.

An important point was raised by the noble Baroness, Lady Carnegy of Lour. The noble Baroness was right to point out that difficulties would arise in the classroom if it was known that the teacher was conducting a sexual relationship with one of the pupils. Let us assume for the purposes of the argument that there was a pre-existing sexual relationship between the teacher and the pupil, one that pre-dated the point at which the pupil came into the school. I respectfully suggest that the correct way to deal with that situation would be for the school to ensure that there was no possibility of the teacher concerned taking lessons with the particular class. The problem is not whether the criminal law should intervene, rather it is a matter of ensuring that the school is properly run by the headteacher.

I agree also with the point made by the noble Earl, Lord Listowel. We need to ensure, as far as possible, that people who are in positions of trust are properly trained and supported.


Baroness Carnegy of Lour

Before the noble and learned Lord sits down, have the Government ascertained whether the teachers' unions have agreed to what he has stated? If they have not, a school would be put in the extremely difficult position of having to prevent teachers from taking their normal classes because a girlfriend happened to be a pupil in one of those classes.

Lord Falconer of Thoroton

I shall write to the noble Baroness about the consultation that has been undertaken with the teachers' unions. However, I am not sure whether any sensible headteacher would think it appropriate for a teacher and a member of one his classes to conduct a sexual relationship. I find it hard to believe that that would be regarded as an appropriate relationship in the context of a school.

Lord Cameron of Lochbroom

Would the noble and learned Lord describe when a position of trust arises in the circumstances mentioned by the noble Baroness, Lady Blatch? Let us consider a teacher who has just agreed a new contract with a school in which classes have not yet started. He is already a teacher at the school, but that fact is unknown to the particular girl, a pupil at the school, whom he meets in a public house just before the new term begins. In those circumstances, by virtue of his contract, one might argue that he is placed in a position of trust in relation to any person he discovers at any time thereafter to be a pupil at that school.

I should like to be certain that the phrase in Clause 26(1), before the position of trust arose", can be seen as being the start of a contract. I look back to Clause 23(5) which refers to person A looking after, persons under 18 who are receiving full-time education at an educational institution and B is receiving full-time education at that institution". I hope that the point is one the noble and learned Lord can clarify. It could present difficulties in the courts as regards determining the point at which Clause 26(1) would arise, so that the teacher would not be absolved, as it were, from his sexual relationship with the pupil.

Lord Falconer of Thoroton

The noble and learned Lord, Lord Cameron, will be aware that Clause 23(5) applies where person A, looks after persons under 18 who are receiving full-time education". He will also be aware that Clause 24(3) states: A person (A) looks after another person (B) on an individual basis if— (a) A is regularly involved in … training … B and that Clause 26(1) states that, is not an offence … if, immediately before the position of trust arose". I am loath to identify the precise moment at which the relationship of trust occurs, but certainly it can start before there has been an incident of teaching. Once it has become clear that person A is going to teach or train person B on a regular basis, then potentially the point at which the position of trust was established would have arrived. I think that it would be unwise to define it more precisely than that because it would depend on the facts of each individual case.

Baroness Blatch

I think that the noble and learned Lord, Lord Cameron of Lochbroom, has made a point in his remarks. Either person A would be committing an offence, in which case he would already be in a position of trust and therefore committing an offence under the Bill or—if I modify slightly my example of the same two people—where person A applied for a position having already struck up a relationship with person B, then of course the defence under Clause 26 would apply. I am rightly chided, I think, over the way I used that particular example. However, there is a choice to be made here. My noble friend Lady Carnegy made a very pertinent point. This is something about which the teaching unions are extremely concerned. We are referring here to sixth-formers. Sixth forms in schools tend to be close communities. If one sixth-form pupil is conducting an affair with a much older school teacher, and they claim a pre-existing relationship so that they benefit from immunity under Clause 26 if it remains part of the Bill, then there is an impact on other students in the school. Simply to say that the teacher should not teach the particular girl while she remains a sixth-former in the school, but that he should teach other children, does not resolve the difficulty.

The decent and honourable thing to do—indeed, as far as the school is concerned, it is what the teacher should do—is for the teacher to remove himself altogether from that position of trust. A choice is available to such people.

I remind Members of the Committee that if such relationships occurred only rarely, then I would not seek to make a further point to support my case for the removal of Clause 26 from the Bill. But I refer again to the Welsh case. A network of paedophiles was operating not only in north Wales, where young children were being passed around like parcels so that people could sexually abuse them, but also all over the country. Indeed, people from my own local authority sought jobs for themselves in that part of Wales because that kind of activity was going on. People in the paedophile networks will realise that they have a tailor-made defence under the provisions of Clause 26. They will manipulate circumstances so that a relationship is struck up before the position of trust commences. They know that they will be provided with immunity from prosecution beyond that point. The Minister is absolutely right that the relationship must be tested, but I return to the Welsh case because it is the most vivid for many of us. We all remember reading that dreadful report. That case went on for many years and the repercussions are still being felt in the lives of many people. Young people in that situation are extremely vulnerable. They are desperate to be loved. They will even allow the most awful things to happen to them because somebody is taking care of them and loving them—but at the same time seriously abusing and taking advantage of them. Those are the people we want to protect.

This does not do a disservice to people in the kind of relationship mentioned by my noble friend Lady Noakes and the noble Lord, Lord Monson. If we are about anything when we come to legislate, it should not be about giving an excuse to somebody who manipulates the system. Once Clause 26 is part of the statute, it could be manipulated by taking advantage of young, vulnerable people who will always profess to having had or being in a relationship prior to the abuse of trust position.

If Clause 26 goes onto the statute book and allows persons to take sexual advantage of vulnerable people, paedophiles will be completely free of any kind of offence. However, I do not intend to press my opposition to Clause 26 at this stage. The noble and learned Lord has been marvellous between the last time that we met and this stage. He has listened very carefully in respect of other clauses about which I was equally concerned and responded. I shall read everything said in this debate and hope that the noble and learned Lord will do the same. If nothing changes, I shall return to this matter on Report.

Lord Monson

Does not the noble Baroness agree that persons who are attracted to 16-and 17-year-olds are not, strictly speaking, paedophiles?

Baroness Blatch

The case that I have been making over and over again is that persons engineer sexual relationships with people much younger than 16—so that at 16, as in the Welsh case and one of the examples that I gave, the offender almost has a free rein and can be free of committing an offence.

Clause 26 agreed to.

Clause 27 [Sections 18 to 22: existing sexual relationships]:

On Question, Whether Clause 27 shall stand part of the Bill?

Baroness Blatch

I was delighted to see the name of the noble and learned Lord associated with the opposition to Clause 27 and am mightily relieved that it will not stand part of the Bill.

Lord Monson

I realise that I am ploughing a lone furrow, in that I think that Clause 27 strikes the right balance as it stands and should not be deleted. That was presumably the view of the White Paper Setting the Boundaries and of the other documents mentioned in the Explanatory Notes. No doubt the noble and learned Lord will correct me if I am mistaken. I confess that I cannot remember what those different documents said about the clause.

We have been hearing from the media generally for months, if not years, and heard in earlier debates that a higher and higher proportion of young people are becoming sexually active at 13 or even earlier. I think that is deplorable, but there does not seem to be anything that anybody can do about it.

At the same time and perhaps consequentially, we are told that 16 and 17 year-olds are, to all intents and purposes, adults and should therefore be given the vote at 16. In this House, that proposal came from Conservative Back-Benchers but received support from all parts of the House—and many letters in the press in recent weeks have supported that idea. The Government seem to agree that 16 or 17 year-olds are de facto adults, as they used the Parliament Act to ensure that 16 and 17 year-olds of both sexes can now be legally sodomised by anyone not in a position of trust. That was against the wishes of the overwhelming majority of your Lordships on both sides of the House and the public—and against the wishes of a number of responsible homosexuals. That, despite the physical dangers involved and described so graphically by the noble Lord, Lord McColl, with his enormous medical expertise.

How strange then to demand up to five years imprisonment for someone in a position of trust—not a position of authority because an employer, office manager or foreman can get away with anything under the Bill—who perhaps merely kisses the younger person, as he or she may have been doing week after week or month after month prior to the Bill coming into force.

I realise that nothing that I say will change the Government's mind at this stage, but I thought that was worth saying none the less.

12.15 p.m.

Lord Falconer of Thoroton

I will briefly explain why we are not supporting Clause 27 anymore, which is entirely in line with my remarks about Clause 26. The abuse of trust offences are designed to protect children from being manipulated by the relationship of trust into what are ostensibly consensual relationships in circumstances where the genuine nature of the relationship must be in doubt.

As the rationale for these offences is to protect young people from being manipulated into such relationships, it follows that we should not make it a defence to a continuing sexual relationship that the manipulation occurred before it became unlawful. There is an option; namely, that the relationship of trust can be brought to an end. It is unlike Clause 26, where the start of the relationship was not the product of the abuse of trust relationship—whereas under Clause 27, the relationship would have been the product of the abuse of trust.

If Clause 27 stands part, the only reason for it not being unlawful would be if the relationship started before the Bill became law. It is very difficult to justify continuing the relationship after it becomes unlawful simply because it started before. For that reason, my name is added to that of the noble Baroness and we agree that Clause 27 should no longer stand part of the Bill.

My name also appears with that of the noble Baroness in relation to Clauses 32 and 51 stand part. Those deal with situations where a relationship or position of dominance is manipulated to start a relationship. That would have occurred before the Bill became law but continued after. The fact that the manipulation started before should not be justification for it continuing after the Bill becomes law. When we come to Clauses 32 and 51 stand part, I hope that we shall be able to deal with them as quickly as Clause 27.

Lord Monson

Before the Minister sits down, will be remind the Committee of the recommendations made in Setting the Boundaries and Part 1 of the Sex Offenders Act 1997 in respect of this particular clause?

Lord Falconer of Thoroton

The document Setting the Boundaries suggested that there should be a defence if a relationship started before and continued after. But the logic of saying that one acted in a way that would have been regarded as criminal and continued to do so after the law is enacted is difficult to defend.

Clause 27 disagreed to.

Clause 28 [Sexual activity with a child family member]:

Baroness Blatch moved Amendment No. 172: Page 13, line 15, after "offence" insert "of incest

The noble Baroness said: I moved amendments to the Sexual Offences (Amendment) Bill to extend the scope of the existing law covering abuse within the family. Although the word "incest" will not be used in the new offence in Clauses 28 to 32, I am very pleased that the scope of the protection to cover abuse within the family has been significantly widened in the way that I proposed some three years ago. For example, step-parents are included and so is abuse by a family member of the same sex.

The Government have in many respects produced a better law of incest than currently exists, re-implementing many aspects of English law on incest that were removed when the Ecclesiastical Courts lost their jurisdiction. But in doing so, the Government are dropping the title "incest" and so are weakening public understanding of the offence and recognition of its seriousness.

Existing law has three omissions. It does not cover sexual activity between family members of the same sex; oral sex or sexual acts falling short of penetration; and step-parents, step-siblings, uncles and aunts. Where a child is involved, Clauses 28 and 29 remedy those loopholes and form a better law of incest than we have at the moment. However, the name of the offence is changed in the title from incest to sexual activity with a child family member. Clauses 68 and 69 largely restate but rename the existing law of incest for adults. For the first time, same sex activity and oral sex are also covered, but unlike the offences protecting children, Clauses 68 and 69 do not include sexual activities falling short of penetration. Nor do they bring step-parents, step-siblings, uncles and aunts within the scope of the law.

Clauses 28 to 32, 68 and 69 create a problem—although I know that Clause 32 will now not stand part of the Bill—by removing the word "incest" from the statute book. Incest is a term that is very well understood among the public; it recognises the particular nature and seriousness of the offence. There is all the difference in the world between the expression "non-consensual sex" and "rape". To say you are a victim of rape has a clear meaning—everyone knows what it means. To say you are a victim of non-consensual sex can never convey the same degree of seriousness. In the same way, there is all the difference in the world between "sexual activity with a child family member" and "incest".

Children who are victims of incest suffer a particularly grievous form of child abuse. In addition to the abuse, with all that that can mean, there is the violation of the close family relationship. This seriously handicaps the child's ability to trust other adults in future. The incest law exists to help preserve the sanctity of family ties.

The Government's White Paper said: The balance of power within the family and the close and trusting relationships that exist make children particularly vulnerable to abuse within its environment". I agree with that analysis. Incest is the greatest abuse of trust; it violates the assumed security of the family.

The word "incest" graphically captures the idea of impurity. This is the meaning of the Latin word "incestus" from which the English word derives. It encapsulates the desecration of a family relationship by the most appalling abuse of trust.

The overall section title in the Bill does not say "incest offences" but "familial child sex offences". The word "familial" lightens the gravity of the matter. It is an obscure medical term of comparatively recent origin, more common in the US than in Britain. In contrast, "incest" is a longstanding concept—it can be found in documents dating back to the time of Magna Carta. Its meaning is widely and immediately understood today. Anyone who comes across the term "incest" in a news report, book or film knows exactly what it means.

The title of Clause 28 simply reads: Sexual activity with a child family member". This is striking only in its neutrality. As a term, it does not possess the same degree of seriousness as the term "incest" and carries little stigma for the offender.

I understand that the sex offences review believed that the term "incest" should be removed as it might imply that the innocent party was complicit in the offence. If that was its aim, it has comprehensively failed. The descriptions "sexual activity with a child family member" or even "sex with an adult relative", the title of Clause 68, do not have any connotation that consent was withheld. Removing the concept of incest from the law removes from the name of the crime any concept of guilt. Ultimately, the only person who can benefit is the one who has committed the offence. Dropping the word "incest" makes the severity of what the victim has suffered appear much less serious.

I cannot help feeling that "incest" has been removed as a token gesture to political correctness. No doubt the Government will claim that they are merely tidying up or modernising the law. Whatever the case, I am afraid that this renaming downgrades and, I believe, sanitises the offence.

As I mentioned a moment ago, a plain contrast is that the Bill retains "rape" as an offence. Many noble Lords will be more than aware of this following lengthy debates earlier in Committee. Rape will still be called "rape". The Government have not proposed, so far as I am aware, to replace "rape" with an offence of "non-consensual sexual activity". There are moves from some activists in this country and in the United States to rename paedophilia "intergenerational sex". Will that be next? I sincerely hope not.

In defence of the name change in the Bill, it may be argued that the word "incest" should be used only to cover blood ties. I understand that argument, although I do not agree with it.

As brought in by the Government, the Bill rightly prohibits sexual activity between uncles and nieces. This relationship of affinity is also prohibited in the marriage law. Incest is the right description for this offence. In a real life case, most people who heard of it would immediately think that incest had taken place, not a "familial child sex offence".

One simple definition of incest is sexual intercourse between close relatives, the definition given by the Shorter Oxford English Dictionary. A sexual relationship between close relatives is commonly known as incest. The Bill defines the close relationships covered in Clauses 28 to 32 as "family". If these relationships are close enough to be defined as "family", they are also close enough to be defined as "incest".

The Government's proposals in this area are almost all found in the recommendations of the sexual offences review, which reported in July 2000. The review recommended the removal of "incest" from the law. However, one factor in its decision seems to have been its belief that prosecutions under the existing law were declining. It asserted that the number of crimes of incest tried in the magistrates' courts in 1997 was only one seventh of the number in 1987. There is an elementary error here. The review seems to have forgotten that most cases of incest are tried in the Crown Court. It was therefore incorrect to assert that there are few cases of incest each year. In fact, in recent years, there have been around 100 cases every year, not 26, as stated in the review. This is comparable to the number of perjury crimes reported each year, or to the incidences of unlawful sexual activity with a girl under the age of 13.

I repeat here that the sexual offences review's most positive proposal in relation to this offence was the widening of the relationships covered. The review drew attention, for example, to research evidence showing the high incidence of uncles involved in sexual abuse. As the noble Lord, Lord Monson, said on 13th February 2003 at Second Reading, incest is a taboo in all cultures and religions. The distinguished American sociologist. Talcott Parsons, argued that, the incest taboo is a universal of human societies". The Government are restoring to the English law on incest categories of close relationships which were covered by our law for centuries. Under the Bill, a wider range of relationships is covered by the offence. The pattern ultimately derives from the Judaeo-Christian tradition as recorded in the Bible, which covers step-parents, step-siblings, uncles and aunts.

"Incest" will remain in statute for Scotland and Northern Ireland. If the term can be retained and understood there, why can it not be the same in England and Wales?

Clauses 68 and 69 relate to incestuous activity between adults. Here, too, it should be recognised that a serious offence has been committed of which society strongly disapproves. This preserves the universal pattern of the family for all ages.

The sexual offences review supported the retention of such a law for the whole family. It noted that most cases of incest between adults had begun when one party was a child and represented, a long-term abuse of power". The review concluded. that society may properly apply standards through the criminal law that are intended to protect the family as an institution as well as individuals from abuse". Finally, I strongly support the effect of Clauses 28, 29, 68 and 69, but not the name. The word "incest" is striking in its immediate gravity. The alternatives offered by the Government are vague and vapid. They serve only to detract from the seriousness of the offence and, in that, can only aid its perpetrators. If my amendments are accepted, the headings in the Bill will be changed to include incest in the name of the offence. I beg to move.

Lord Thomas of Gresford

The Committee will recall my amendments to the earlier clauses in the Bill when I objected to the use of the bare word "rape" for purely practical reasons that I hope the noble Baroness, Lady Blatch, will understand. It is my view, from experience, that one of the reasons for low conviction rates for rape is the use of that word. Juries find it a word that connotes something very serious, that could lead to life imprisonment, while they are dealing with a degree of human relationships that may not be serious. Consequently, they do not convict.

When it comes to incest, the noble Baroness paints a picture of a horrible, disgusting crime—and, indeed, it can be—where a father manipulates his young children and has sexual intercourse with them. My experience of incest is that it occurs between very inadequate people. For example, it occurs between children or young adults who have never had any moral code taught them and who do not understand the stigma which is attached to relationships between siblings in that way. That is one example. Another quite frequent example is where, for some reason, the mother of the family is incapacitated, perhaps by illness or something of that nature, and the eldest daughter develops a relationship almost of the wife and mother in that family and performs the functions of both looking after the family home and also being a partner to the husband. They are the kinds of cases which come to court and to which the word "incest" is attached.

There are all kinds of degrees of seriousness of behaviour encapsulated in the human condition. It is quite right for the Government to get away from the old phrases which have connotations around them. The Government have taken away buggery, bestiality and incest. It is my view that the Bill would be greatly improved if the Government took away the word "rape" and recognised that there are very serious cases of rape and less serious cases.

12.30 p.m.

Lord Monson

I would like to be able to support the noble Baroness, Lady Blatch, this time, but I cannot do so. She was kind enough to refer to my Second Reading speech in which, among other things, I suggested that it was a shame that the Government seemed determined to strike the word "incest" from the statute book. It is an ancient English word found in identical or near-identical form in a number of other European languages. More importantly, it is well understood by the public at large.

I submit that rightly or wrongly the public at large associate incest with penetration of some sort and not mere touching. I believe that they would be confused if it were extended to cover forms of sexual activity other than the most serious. Although I am strongly in favour of retaining the word "incest" for the most serious forms of sexual activity between family members, I do not believe that it would be quite right to extend it to mere touching.

Lord Falconer of Thoroton

The noble Baroness, Lady Blatch, rightly describes the effect of the new provisions in the clause and the way in which it extends what had been the previous position as regards family sexual relationships. It expands their number and the sorts of conduct which are covered. It is based on the proposition that the family unit is a place where children should be able to feel safe and protected. However, because of the balance of power within the family unit and the close and trusting relationships which exist within it, the family creates opportunity for exploitation and abuse and within such a unit that can occur between people who are not simply blood relations.

In the light of that change we believe that it is wholly inappropriate to continue to use the word "incest". We believe that it goes further. There is a very short passage in Setting the Boundaries 2000 which I should like to read. It states: After careful consideration, we decided that the word incest, although well understood, was perhaps no longer the right one to use in the context of delivering protection in the family. It is generally understood as an offence of blood relations, and carries a very heavy burden, not only for the offender but also for the victim/survivor who can be seen as complicit. It seems inappropriate for the informal and temporary family arrangements that can be the cause of particular concern, and are well outside the present law of incest". We believe that is broadly right and that the time has come no longer to use the word. In the light of what I have said I invite the noble Baroness to withdraw her amendment.

Baroness Blatch

I believe that I dealt with the final point which the noble and learned Lord made about deeming complicity. The new terminology does not resolve that matter, which I dealt with in some detail.

The noble Lord, Lord Thomas of Gresford, was consistent in that he was concerned about the word "rape" as well. Whatever the activity is, if the degree of incest is sufficient to fall within the clauses in the early part of the Bill, then it is serious. It is certainly serious for the child. It links with the point made by the noble Lord, Lord Monson, as regards touching.

I have the same reservations as the noble Lord about that. For a long time I have supported the very difficult situation of a step-parent who has become a new member of a family with young children. It has always been my view that all members of most families touch their children and each other all the time and very often in a very affectionate way. It certainly happens in my family where one cuddles up on the sofa, watches television, reads stories and where children crawl into bed with their parents and even with step-parents. But we are not talking about such matters.

If it comes to the attention of the prosecution services that there is sufficient evidence that the degree of touching is such that it falls under the clauses in the Bill, then it is very serious for the child. There needs to be some protection in that regard. I believe that there is a commonality of understanding about the word "incest" and any child or member of a family who is violated by another member of the family, particularly children who are violated by parents and/or uncles and aunts. The evidence shows that there are very common occurrences of the uncle abusing the child. I believe that "incest" is the appropriate word. I am sorry that my amendment has not received support throughout the Chamber. For the moment I shall reflect on what has been said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford moved Amendment No. 173: Page 13, line 21, after first "he" insert "reasonably

The noble Lord said: When I tabled this amendment my purpose was to try to tidy up Clause 28 and to try to deal with the shifting burdens of proof that are contained within subsection (2). After the facts have been established under subsection (1) the burden shifted to the defendant to prove that he believed that the other person was 18 or over and then back to the prosecution to establish that the belief was unreasonable. We had discussion about a very similar matter at an earlier stage of the Committee.

Looking at the matter again, I am even more concerned about Clauses 28 and 29 when comparing them with Clauses 9 and 11, which we have already debated. Sexual activity with a child family member is concerned with a person who is under 18. If the person were under 16, presumably Clause 9 would apply. There would be no question of consent being given by the child under 16. Again, we are really dealing with 16 to 18-year olds where the other party to the sexual activity may very well consent to what is taking place, but that does not stop it from being an offence.

I do not understand why in Clause 9 it is for the prosecution to prove that A does not reasonably believe that B is 16 or over, but in Clause 28 the burden of proof shifts twice for the defendant to prove that he believed the other person was 18 or over and, as I have already said, for the prosecution to try to rebut that.

Why must there be a change of that nature? If one compares Clause 29 with Clause 11, we see that the same thing happens. In Clause 11, it is for the prosecution to prove that, B is under 16 and A does not reasonably believe that B is 16 or over". In Clause 29, the burden of proof changes to the defendant. It is for the defendant to prove, that he believed that the other person was 18 or over". I want an explanation for that.

It is not sufficient to say, as the noble and learned Lord said when we earlier discussed the issue, that my amendment, which would have made it, reasonably believed that the other person was 18 or over", in subsection (2), would offend the European convention. I have looked at the European convention, and I see nothing in that or in case law that supports that explanation.

The other matter that concerns me is the level of sentencing. In subsection (5), for a person over 18 the maximum sentence is 14 years. That accords with Clause 9, when a person is under 16. But under Clause 28(6), unless subsection (5) applies—that is, unless the person is over 18— a person guilty of an offence under this section"— in other words, a person under 18— is liable … on summary conviction … to … 6 months", and, on conviction on indictment, to … 5 years". The position that that postulates is that the other family member who is the defendant is under 18, dealing with someone who is between 16 and 18. The defendant could be 12, 13 or 14—in other words, he could be younger than the person that the clause aims to protect. That person, under subsection (6), seems to be open to conviction on indictment of up to five years. I do not understand the thinking behind that, but perhaps I am muddled and have not understood it fully.

One may compare that provision with the clauses that we have discussed—Clauses 68 and 69, which deal with sex with an adult relative—and consider the level of sentencing. In Clauses 68 and 69, the sentence is six months or two years, whether one is the person doing the penetration or the person receiving the penetration. In Clause 28, which deals with sexual activity with a child family member, there is a sentence of 14 years and, for a person under 18, five years. Why are there such discrepancies? Why do sexual assault, with which Clause 28 deals, or inciting sexual assault, with which Clause 29 deals, carry such enormous sentences of imprisonment as compared with what the noble Baroness, Lady Blatch, would call the incest provisions in Clauses 68 and 69? A lot of explaining needs to be done about the two clauses, and I look forward to hearing from the Minister. I beg to move.

Baroness Noakes

We on these Benches associate ourselves with the concerns expressed by the noble Lord, Lord Thomas of Gresford, in relation to the shifting burden of proof. We discussed that in almost the same terms in relation to the abuse of trust provisions in our previous Committee day, and drew the distinction between the drafting of those clauses and the sexual offences with children clauses—Clauses 9 to 14. We do not understand that difference, and hope that we will get an explanation or that the noble and learned Lord will consider the matter again.

12.45 p.m.

Lord Falconer of Thoroton

The noble Lord, Lord Thomas, raised two separate points. First, he asked why we place all the burden of proof on the prosecution in relation to Clause 9 and yet place part of the burden in relation to belief about age under Clause 28. Secondly, he asked why, even if the first question is answered, is there a shifting burden dividing it in two?

The noble Lord asked a separate wodge of questions about sentencing. He asked why the maximum penalty under Clause 69 was two years, whereas the maximum penalty under Clause 28 was two years—

Lord Thomas of Gresford

Fourteen and five years.

Lord Falconer of Thoroton


In relation to the first question, the reason for the difference in overall approach between the Clause 9 and 11 offence and the Clause 28 and following offences is that in Clause 9 the defendant and the child may not know each other. In Clause 28 and associated offences, there is a familial relationship, so it is reasonable to say that the defendant should have the burden of saying, "I did not know or I did not believe that the child fell below the relevant age".

The second question concerned the burden of proof. When there is a burden on the defendant to set out what his or her knowledge was about the age, why shift the burden of reasonableness back to the prosecution? The European convention does not specifically refer to the question, but our view is that as a matter of law the convention in the circumstances of this offence would not uphold a reverse burden on the question of reasonableness, when it is an objective matter that a jury has to determine, and not something peculiarly in the knowledge of the defendant, such as the knowledge of age. It is purely because of that legal issue that the two have been separated.

As for the discrepancy between the sentencing for Clause 28 and for Clauses 68 and 69, that is accounted for specifically by reference to the age of the victim. For Clause 28 it is under 18 and for Clauses 68 and 69 it is over 18. Under Clause 28, when the defendant is very young, one would expect prosecutorial discretion to be used. The distinction is made because of the age of the victim.

Lord Thomas of Gresford

I do not see the need to shift the burden of proof to the defendant under Clauses 28 and 29, in the way that the noble and learned Lord describes. If the burden of proof remains with the prosecution, it is still for the defendant to raise the issue and give evidence that he did not believe, otherwise it is not an issue in the case. It is for the defendant to have the evidential burden, in the sense that he has to raise the issue by giving evidence about it. However, it is only right and fair that the prosecution should retain the overall burden of proof so that the jury is sure that the defendant did not have that belief. I shall return to that matter.

As for sentencing, Clause 69 is where a person over 16 receives penetration from a family member, perhaps with consent. That carries a maximum of two years imprisonment. In Clause 28, the defendant may be under 18 and be facing five years imprisonment. I do not see how one can marry those two levels of sentencing. It seems totally ridiculous that sexual touching should carry such a heavy penalty, whereas giving or receiving penetration from a family member with consent—all these offences are postulated as being with consent—should have the levels of sentencing to which I referred.

To follow the noble Baroness, Lady Blatch, there is a degree of political correctness here. Consensual intercourse between adult family members—people over 16—is regarded as not too serious, but when the word "child" is put into the offence, the sentence must immediately be more than doubled. That is offensive, and I shall return to the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 174 and 175 not moved.]

Lord Falconer of Thoroton moved Amendments Nos. 176 and 177: Page 13, line 22, after "proved" insert "(a) Page 13, line 22, at end insert ", or (b) that the other person was under 13.

On Question, amendments agreed to.

[Amendments Nos. 178 to 182 not moved.]

Lord Falconer of Thoroton moved Amendment No. 183: Page 13, line 31, leave out subsection (4).

On Question, amendment agreed to.

Baroness Noakes moved Amendment No. 184: Page 13, line 37, leave out paragraph (a).

The noble Baroness said: In moving Amendment No. 184 I shall also speak to Amendment No. 198, both of which are probing amendments related to the use of family proceedings rather than indictment for the familial child sex offences in Clauses 28 and 29. Under those clauses, sexual activity with a child family member under 18 or inciting a child family member to sexual activity generally attracts a 14-year sentence except where the defendant is under 18, where sentence is either five years on conviction on indictment or six months or a fine on summary conviction. My amendments are designed to elicit the Government's thinking on how they see these clauses being used for those aged 17 or less and how they see the distinctions between summary proceedings and proceedings by indictment.

I tabled a similar amendment to Clause 14 which carries a similar sentence level in relation to under 18s who are involved in child sex offences under Clause 14, but I think that the Minister perhaps forgot to reply to it because I could not find that reply in Hansard—no doubt because our debate on Clause 14 ranged much wider than the matter of indictment and summary conviction. As with Clause 14, however, we are talking here about offences by young people, mainly 16 and 17 year-olds, against children. All of the points made when we debated Clause 14 are relevant here. The noble Baronesses, Lady Walmsley and Lady Jay, and the noble Earl, Lord Listowel—all of whom are in their place—raised points about children needing to be dealt with outside the criminal justice system. The force of all of those points is at least as great when considering the type of young people covered by Clauses 28 and 29.

I am well aware that there is a spectrum in relation to the gravity of offences involving children and that discretion will be used. However, I hope that the noble and learned Lord will say what will drive the decision on whether to pursue a prosecution. I believe that the Crown Prosecution Service will pursue a prosecution only when it is the only way in which to ensure that the child is treated properly and/or to protect other children. As I understand it, the criminal justice system will be used only when other remedies would not be effective. So we are talking about very serious child sex offence cases that should be left to non-criminal justice remedies.

If that is so, and if we have concluded that an offence is so serious that there must be a prosecution to ensure that the young person is dealt with or that children are protected, would we ever contemplate using summary proceedings which could result in a mere fine? Do we expect the offences in these clauses to be used only for the more serious type of familial child sex offences, when the other mechanisms—child protection, social care, medical care—cannot exclusively be used? If that is so, how could we contemplate using the summary proceedings with the minor penalties that they allow? I beg to move.

Lord Thomas of Gresford

I have already made my comments on the wide range of human behaviour and I shall not repeat them. However, the effect of Amendment No. 184 is on people who are under 18. It removes from them the possibility of appearing before a magistrates' court and receiving a summary conviction, simply for consensual touching of a family member who is also under 18. If I could be assured that forms of treatment and the measures to which the noble Baroness, Lady Noakes, and my noble friend Lady Walmsley referred were in place, perhaps it would be right to make the offence so serious that it could be dealt with only on indictment. However, until those measures are in place, and they are not at the moment, I think that one has to leave it open for those under 18 to be dealt with properly in the magistrates' court.

Lord Falconer of Thoroton

The noble Baroness, Lady Noakes, has refined her argument. She agrees that a wide spectrum of offending can occur. We all agree that much of that spectrum will necessarily entail a trial in the Crown Court. She then posed a question: if only very serious cases should be brought, should not the option of a summary case be excluded? I think that that would be unwise. Surely the right course is to let the prosecutorial authorities have the full range of options in dealing with what can happen in sexual situations and allow them to make their judgment on that basis. It would be unwise and much too difficult to make the guidelines so clear that although one thought that the criminal law should intervene, it could do so only in a way in which it could make a judgment on the seriousness of the case.

The problem arises only in relation to over 18s. If the defendant were under 18, he would start off in the youth court, which could decide whether the case was so grave that it had to go to the Crown Court. The noble Baroness said that one could not contemplate a situation in which a tine would be appropriate. One can be fined in the Crown Court.

Baroness Noakes

I thank the Minister for that reply. One could be fined in the Crown Court, but not for offences under Clauses 28 and 29—

Lord Falconer of Thoroton


Baroness Noakes

Would they if on indictment?

Lord Falconer of Thoroton


Baroness Noakes

I stand corrected. As the noble and learned Lord will know, my legal knowledge is rusty. I am still concerned that in dealing with young people we are retaining a range of criminal justice measures, when we should be focusing on non-criminal justice measures and simply retaining backstops for dealing with those children. The issue has been raised before but we have not had a satisfactory answer. Those arrangements are not in place, and that is where I think that the policy efforts need to be concentrated. Although I accept that those issues are difficult to accommodate in debates on this Bill, I hope that the Minister will accept the concerns that many noble Lords share about this particular aspect of offending behaviour. We are debating the criminal justice aspects of the issue, but that should not be our predominant concern. We should be looking to many other remedies. However, in the light of what the Minister said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

1 p.m.

[Amendments Nos. 185 and 186 not moved.]

Clause 28, as amended, agreed to.

Clause 29 [Inciting a child family member to engage in sexual activity]:

[Amendments Nos. 187 to 196 not moved.]

Lord Falconer of Thoroton moved Amendment No. 197: Page 14, line 19, leave out from beginning to "applies" in line 22 and insert— (4) A person guilty of an offence under this section, if he was aged 18 or over and the other person was under 13 at the time of the offence, and the activity incited involved—

  1. (a) penetration of B's anus or vagina with a part of A's body or anything else,
  2. (b) penetration of B's mouth with A's penis,
  3. (c) penetration of A's anus or vagina with a part of B's body, or
  4. (d) penetration of A's mouth with B's penis, is liable, on conviction on indictment, to imprisonment for life.
(4A) Unless subsection (4) applies, a person guilty of an offence under this section, if he was aged 18 or over at the time of the offence, is liable on conviction on indictment to imprisonment for a term not exceeding 14 years. (5) Unless subsection (4) or (4A)

The noble and learned Lord said: Amendment No. 197 raises the maximum penalty from 14 years to life for an adult aged 18 or over who incites a child family member aged under 13 to engage in penetrative sexual activity. Where the child family member is over this age or the activity incited is not penetrative, the maximum penalty will remain at 14 years. Where the incitement is carried out by a family member aged under 18 the penalty will remain at five years. Inciting a child aged under 13 to engage in sexual activity is in itself a serious offence. When the person who does that is a member of the child's family or household the betrayal of the child's trust is greater. Moreover, Clause 29 as drafted does not differentiate between victims aged under 13 or over; or between adults who incite a child family member to sexual kissing or to sexual intercourse.

The penalty of incitement needs to be comparable with the penalty for the most serious behaviour that might be incited; that is, sexual intercourse. The amendment provides for this differentiation which marks the most serious behaviour and the particular vulnerability of children aged under 13. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 198 to 200 not moved.]

Clause 29, as amended, agreed to.

Lord Bassam of Brighton

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

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