Sexual Offences Bill [H.L.]

HL Deb 13 February 2003 vol 644 cc842-82

Second Reading debate resumed.

4.50 p.m.

Lord Hylton

My Lords, I shall confine myself to two technical issues arising from the Bill. Like the Minister, I am concerned about increasing the protection for the most vulnerable people. My first concern is with the so-called eight-day loophole, which allows convicted British sex offenders to travel abroad for less than eight days without notifying the United Kingdom authorities or the foreign authorities. It therefore allows registered offenders to travel to the Continent and even as far as south-east Asia to commit further offences and return here with impunity. It encourages sex tourism at its worst, because the offences often involve children. I am glad that the Home Secretary has reportedly undertaken to reduce that loophole. Will the Government cut it back to 72 hours, as recommended in the Home Office consultation in 2000? That would require offenders to give notice of their travel plans before leaving the United Kingdom. That measure would be strengthened if, at the same time, the courts in countries where sex tourism takes place were asked to inform the nearest British embassy or consulate of all convictions for sex offences by British residents.

To illustrate the scale of the problem, in the capital of Cambodia there are reckoned to be at least 10,000 child prostitutes, mostly girls aged between 12 and 17. Will the Government deal with this travel issue by an amendment to the Bill, perhaps to Clauses 75 or 88? That would be clearer and more straightforward than tackling it only by means of little-known guidance.

The noble Baroness, Lady Gibson of Market Rasen, referred to trafficking in persons, which is covered in Clauses 61 to 64. I welcome the Government's good intention, but, as usual, there are problems. I regret that the trafficking clauses do not differentiate between adults and children or adequately define a child. As a result, some children may escape protection. The onus is therefore on the Government to explain why they have not defined a child as anyone under 18, as was done in two UN conventions, on trafficking and on the rights of the child. We have ratified both conventions. ECPAT UK produced evidence in 2001 showing that trafficked children were mainly aged 13 to 17.

Another problem here concerns the inclusion of, for or in expectation of gain". The need to prove gain has reduced the number of prosecutions in the past and lessened their chances of success. I am bound to ask why these words have been kept in the Bill. There is evidence from the Gardai in Ireland, from high ranking officers in the Metropolitan Police and from Mr Allan Levy QC that the inclusion of gain or good will reduces the chances of achieving convictions for trafficking. Mr Levy also points out that the defence of reasonable belief that the trafficked person was over 18 is unhelpful. That defence was used recently by Mr Kadiu—a trafficker into this country—although I am glad to say that in the end he got a sentence of 10 years for rape and other offences.

The trafficking of persons in order to exploit their labour, which could affect children as well as adults, is another striking omission from the Bill. Why could not this and other categories of trafficking be included by amending the Long Title? Because of the EU framework decision on trafficking in 2000, the Government must legislate by July 2004 to penalise all forms of trafficking. How do they intend to cover economic exploitation in particular?

I conclude by raising the issue of adequate resources for victims of trafficking and victims of juvenile prostitution more generally. I understand that some progress is being made on providing safe housing for adult victims of trafficking. I have previously inquired about this with Home Office Ministers and the Housing Corporation. When will additional houses be functional? This will help to secure evidence against traffickers and controllers of prostitution. Social services, particularly in West Sussex, need adequate funds to provide care and adequate safety for child victims of trafficking. I am convinced that this is a national responsibility to protect trafficked children who reach this country. I agree very much with the noble Lord, Lord Carlile of Berriew, on that. The leakage of such children out of children's homes must be prevented. It will be expensive and the cost should not fall largely on council tax payers. What do the Government intend to do about that?

4.57 p.m.

Lord Campbell-Savours

My Lords, I congratulate my noble and learned friend on his decision to introduce this important Bill and on his statement that he will be flexible in his treatment of amendments. However, I must add the caveat that if ever a Bill cried out for prior scrutiny, it is this one. So many areas of it require examination by the legislature before drafting.

I want to deal with Clause 1 and the deplorable crime of rape. I congratulate the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew, on their excellent speeches. I agreed 100 per cent with them. The Liberal lawyers have come to our rescue once again.

Clause 1 puts an even stronger burden of proof on the defendant with regard to consent. Once again, the weight is being shifted in favour of the accuser and against the accused. I object. It will serve only to aggravate a system under which Britain's gaols contain large numbers of men accused of rape, many of whom—I repeat, many of whom—are innocent. They are there because of the way the law works. Men are too easily accused of date rape. when the trial hinges entirely on the issue of consent. The Bill will lead to more innocent men going to gaol because they cannot convince a jury that a woman consented. That is an outrage.

I feel strongly because a friend of mine, Owen Oyston, went to prison for three and a half years for a date rape he did not commit. I visited him as a friend. In that case, which did not turn on the issue of consent, there was no forensic evidence. Neither the time of the offence nor the day were identified in the trial. There were no photographs of physical damage. There were no medical reports from the time of the incident. There was one witness—the accuser's friend—who told the court that she was present throughout the period in question and that no rape took place. The accuser first made the allegation four years after the so-called event. There were no reports of conversations with third parties or friends revealing trauma at the time of the alleged incident. So why did he go to prison and serve three and a half years? Because a jury decided, on a whim, unimpressed by his demeanour before the court, that something must have happened and it must have been rape. Put simply, on no evidence other than a statement by the accuser, they decided that they believed her and not him.

The Criminal Cases Review Commission has had possession of this case since 1998. New evidence was submitted this January, which it is now considering. Several members of the public, including a police detective, questioned the treatment of the accuser prior to her giving evidence against Oyston, which may have prejudiced the case. The accuser was placed, in my view, in an utterly impossible position.

Andrew Rosthorne, another friend of mine, has worked tirelessly on this case for years and has repeatedly complained about it, as have I. The case is replicated in many other similar cases nationally.

Meanwhile, there have been other cases in which rape was obvious and consent was clearly not given, in which there may be meaningful evidence but the men go free and are found not guilty. Why is that" Because juries are loath to deprive a man of his liberty for six years in conditions of probable date rape.

I was most impressed by the words of the noble and learned Lord, Lord Ackner, who will follow me in this debate, when he intervened in a Statement last November. I shall introduce the noble and learned Lord's contribution by quoting what he said at the time, which I have discussed with many of my friends. He said that the word, 'rape' strikes horror in the mind of everyone, and in a jury in particular. It"— that is, the jury— knows that the starting rate of imprisonment is probably six years or thereabouts. It looks at the weeping family of the prisoner and it comes to the conclusion that not all that much harm was done—they were on reasonable terms, they flirted, they drank together—and for the man to go to prison for six years or thereabouts offends its sense of proportion, and accordingly the jury acquits. A lesser offence with a lesser tariff would make a big difference".—[Official Report.,19/11/02; col. 297.] That may be the area that we should consider, if we want to increase the number of successful prosecutions.

In my view, the law is nonsense. Prosecution without evidence, apart from a statement from the accuser, invites injustice. The treatment of date rape as being the same as "rape on the towpath" is a sop to political correctness. I hope that amendments that deal with deficiencies in the law are carried in Committee and on Report. I want more men in prison who are guilty and fewer men who are innocent.

My noble and learned friend the Minister will notice that I have recently tabled several Questions on the issue of rape, following questions that I asked in another place when I was the Member of Parliament for Workington. My Questions relate to drawing the distinction between date rape and "rape on the towpath". For women to argue that they are the same thing is monstrous and unreasonable. Men's lives can also be destroyed by an allegation of a rape on a date, when the argument hinges on whether consent was given and there are no witnesses other than a statement from the accuser.

I cannot accept that we must tinker with our laws because only 7 per cent of the rape cases reported to the police lead to convictions in court. To compare the rate of convictions in 1985 with that of 2002 is futile and dangerous and takes no account of how much our legal and police processes have changed since 1985. The police and the Crown Prosecution Service are too easily persuaded to push forward in all but the most preposterous of rape allegations. As many as 20 men every week endure remand on the most heinous of all charges before undergoing the horrible process of being found not guilty of rape. And yet someone complains that too many of them are getting away with it.

I shall mention some of the men who have been put in that situation in the Manchester area alone. Mark Jackson hanged himself at his home in Wigan after a jury in Somerset found him not guilty of raping his girlfriend. Dennis Proudfoot was accused and arrested for gang raping an 18-year-old girl in Bury. Ten days after he killed himself, his alleged victim sent a letter to his father declaring that Dennis was innocent after all.

Claire Calvert's false evidence sent her uncle John Griffin to jail for eight years. The case was investigated by Greater Manchester Police, who failed to discover that the complainant had previously been treated by doctors for Baron Munchausen's syndrome. Mr Griffin served five and a half months in prison; the case fell apart after his niece sent him a birthday card apologising for causing him trouble and promising to try to put things right. Before he was set free, he was attacked in Strangeways and Wakefield prisons.

Dennis Power and Joseph Gallagher, two Manchester engineering workers, were arrested, DNA tested and shunned by their friends on the unsupported evidence of Maxine Malton, the 22-year-old wife of a special police constable. Mrs Malton feared that her husband might discover that she had had a drunken sexual encounter with her cousin in Manchester. She picked on two total strangers in a pub—Mr Power and Mr Gallagher. Without even speaking to them, she carefully memorised their appearances so that she could describe them to the police when she reported that they had raped her. Mrs Malton then admitted making up the story about being raped by Power and Gallagher, but falsely claimed that she was raped by her cousin. Judge Rhys Davies, jailing her for four months in Manchester Crown Court in 1996, said that her pregnancy could not save her from prison. He told her: These men had nothing whatsoever to do with you, and what they went through afterwards illustrates how a false complaint can affect the lives of others". I would say that such false complaints ruin the lives of others because of the monstrous nature of the law as it stands today. Yet here again, the authorities are asking us to stack even higher the odds against those who find themselves accused of rape in years to come. The Government must listen to the faint voice of those whose lives have been wrecked and ruined by the law as it stands.

5.9 p.m.

Lord Ackner

My Lords, at the heart of the Bill is child protection. Strong new offences and deterrent sentences will be provided to deal with a situation that no one anticipated 10 or more years ago; that is, the vast number of paedophiles, sexual abusers, the breach of trust to be found among those in care, even in the Church. Clearly the Government are right to take the necessary steps to produce new law on that situation. As the noble Baroness, Lady Blatch, said, it may well be that they have not gone far enough, but those matters can be raised in Committee in due course.

I should like to draw attention to the fact that this Bill shows the folly of the noble Baroness, Lady Thatcher, terminating the Criminal Law Review's activities when she came to power. No longer do we have a highly impressive committee consisting of very senior High Court judges, Old Bailey judges, senior magistrates, senior members of the Bar, senior solicitors, police officers and the like, to produce recommendations and reports which the Home Office considers should be provided. Instead of that, the Home Office insists on doing the work itself. That has resulted in the administration of justice being politicised.

I refer in this regard to the government pamphlet—if that is the right phrase—which has been produced recently entitled, Protecting the Public. On page 9 there is—I speak with moderation as the noble Lord, Lord Mishcon, is looking at me—something which I think is quite monstrous. It is said by the Home Secretary: The law on sex offences, as it stands, is archaic, incoherent and discriminatory". I do not know to what he directs those offensive observations but if it is to the law of consent in rape, the Home Office has either overlooked or has suppressed a great deal of material which shows how sensible the law is.

The case of Regina v Morgan in 1976 created a great deal of anxiety because the House of Lords ruled that if a person honestly believes that he has the consent of the complainant, reasonable grounds for that belief do not have to be established by him. In order to deal with the public outcry that occurred, a Labour Home Secretary—one of the most reforming and respected ones—Mr Roy Jenkins, asked Mrs Justice Heilbron to set up a small working party in order to look at the law of rape and to see to what extent it should be reconsidered. That is what she did with commendable speed. I should like to draw your Lordships' attention to certain observations which were made during the course of the report which she provided. It states: This enquiry originated as a result of the widespread concern expressed by the public, the media and in Parliament in regard to the decision of the House of Lords in Director of Public Prosecutions v Morgan & Others. The Home Secretary appointed us in July 1975 with the following terms of reference: 'To give urgent consideration to the law of rape in the light of recent public concern and to advise the Home Secretary whether early changes in the law are desirable"". The next excerpt to which I should like to draw attention is on pages 6 and 7. Page 6 states that the point of law which was deemed to be of general public importance and which caused the case to go to the House of Lords, so certified was 'whether in rape the defendant can properly be convicted notwithstanding that he, in fact, believed that the woman consented if such belief was not based on reasonable grounds" The next reference states: In short the House of Lords decided that the reasonableness or otherwise of the belief was one of the factors, but only one, which the jury should take into account in deciding whether the belief was real…The jury can, and indeed they should, be directed that in considering what the defendant did intend they should take into account and draw relevant inferences from the totality of the evidence". I turn to page 8 which states. to convict a man who did not have a guilty mind of some kind would gravely offend this principle of law and of justice. This was strongly emphasised in the case of Sweet v Parsley when Lord Morris of Borth-y-Guest said 'My Lords, it has frequently been affirmed and should unhesitatingly be recognised that it is a cardinal principle of our law that mens rea, an evil intention or knowledge of the wrongfulness of the act, is in all ordinary cases an essential ingredient of guilt of a criminal offence". Page 10 states, under the heading, Reasonable grounds as an additional requirement… We have given this aspect of the controversy a very great deal of thought, but we have come to the conclusion that it is not a tenable suggestion. Apart from the basic principle to which we have already referred, namely, that a man should not be found guilty of a grave offence unless he has the requisite guilty mind, and that a genuine mistake negatives such mens rea, there are also matters of practical expediency. If it were to be accepted that a man could be found guilty of rape when he did not mean to commit the offence, ie when there was no deliberate or reckless violation, then it seems very likely that juries who have a strong sense of fairness might be reluctant to convict". The following page states, some critics seem to have thought, that an accused person was entitled to be acquitted, however ridiculous it might be nor did it decide that the reasonableness or unreasonableness…was irrelevant. Furthermore it is a mistaken assumption that one is entitled to be acquitted simply because he asserts this belief, without grounds. Such an assertion is a part only of the evidence. The jury will he told that they may or may not accept it, but that in deciding whether to do so or not they are entitled to take the view that the less reasonable they find it to be, the less likely is it to be true. A jury is unlikely to be misled by, or to accept, a bare assertion in the face of convincing evidence to the contrary". The following page—this is my penultimate reference to the document—states: That there are wrongful acquittals in rape as well as in other crimes is beyond question. Though, naturally, regretting this, we doubt that the causes can be eradicated by a departure from fundamental principles of fairness and justice". My final quotation is from page 14, where the recommendation for declaratory legislation states: We think there would be advantage if this matter could also be dealt with by a statutory provision which would…declare that (in cases where the question of belief is raised) the issue which the jury have to consider is whether the accused at the time when sexual intercourse took place believed that she was consenting and…making it clear that, while there is no requirement of law that such a belief must be based on reasonable grounds, the presence or absence of such grounds is a relevant consideration, to which the jury should have regard, in conjunction with all other evidence, in considering whether the accused genuinely had such a belief". Parliament accepted that advice and legislated so that the declaration was included. It legislated so that it was apparent that R v Morgan, as explained, was a sound and sensible decision. The Criminal Law Revision Committee, which had the inestimable advantage of having my noble and learned friend Lord Lloyd on it, took the same view. It said: If, however, the defendant was mistaken in his belief that the woman was consenting, he should not be liable to conviction for rape, even if he had no reasonable grounds…None of us would wish to extend the offence of rape to such a case. This would in effect turn rape into a crime of negligence, an approach which was rejected by the majority of their Lordships in Morgan. a decision endorsed by Parliament in 1976. Section 1(2) of the 1976 Act (jury to have regard to the presence or absence of reasonable grounds in assessing genuineness of the defendant's belief) makes it clear to the jury how they are to approach such a case…We see no reason why section 1(2) should not apply to all sexual offences in which a defendant's belief on a particular matter is relevant to his guilt or innocence, whether tried summarily or on indictment, and we so recommend". The next small matter that the Home Office seemed to think should be suppressed was the report of the earlier committee's decision in the 10th report dealing with claims, limits of burden of proof, falling or the accused. When there is a burden on the accused, it is necessary to know whether the burden is a 'persuasive' or an 'evidential' burden. The difference between these burdens was explained by the Court of Criminal Appeal in Gill. A persuasive burden means that the matter in question must be taken as proved against the accused unless he satisfies the jury (or the magistrates' court), on a balance of probabilities, to the contrary. An evidential burden means that the matter must be taken as proved against the accused unless there is sufficient evidence to raise an issue on the matter but that, if there is sufficient evidence, then the prosecution have the burden of satisfying the jury (or magistrates' court) The committee goes on to say: We are strongly of the opinion that, both on principle and for the sake of clarity and convenience in practice, burdens on the defence should be evidential only". It gives its reasons. One reason was: In the typical case where the essence of the offence is that the offender has acted with blameworthy intent, and the defence which the accused has the burden of proving implies that he has no such intent but acted wholly innocently, it seems to us repugnant to principle that the jury or magistrates' court should be under a legal duty if they are left in doubt whether or not the accused had the guilty intent, to convict him". That is what the Government want in this case—that the burdens of proof, which have been referred to, must not be evidential but persuasive.

The last reference that I wish to make is to a rather cheerful essay by Professor Hogan, written in 1978 and given in honour of Professor Glanville Williams, who was virtually a permanent member of the Criminal Law Revision Committee. He stated: The existing law relating to sexual offences is for the most part contained in the Sexual Offences Act 1956 with the additions and modifications of the Street Offences Act 1959, the Indecency with Children Act 1960, the Sexual Offences Act 1967 and the Sexual Offences (Amendment) Act 1976. The least that can be said in its favour is that it is accessible and, even with the accretions of case law, it may fairly be said that a layman possessing ordinary powers of comprehension is not at all hard put to make both head and tail of it. Since the layman, and sometimes the lawyer, is sometimes hard put to make either head or tail of much modern legislation these attributes should never be undervalued. Whether or not a man likes the law that he reads, it is a signal advantage to him to be able to understand it …Again, when in Morgan v. D. P. P. the House of Lords decided that an honest belief in consent was a defence to a charge of rape, the opposition was so considerable that it seemed only a matter of time before the decision was overturned. But in the end much of the opposition was brought round to accepting the essential good sense of that decision". I stress that it is quite wrong of the Home Office to have suppressed those reports and observations. It means that unless one has gone to the extent of research, or one is a professor and the information is at one's fingertips, one can be easily moved by the political rhetoric that runs through the statement by the Government to which I drew reference.

5.29 p.m.

Baroness Mallalieu

My Lords, I declare an interest as a practising member of the criminal Bar. As a woman and as a Queen's Counsel I find that a large proportion of the cases in which I am engaged, either as prosecuting counsel but more often as defence counsel, involve sexual offences of one kind or another. My noble and learned friend Lord Falconer has a difficult and a sensitive task. He has the women on the one hand and the lawyers on the other. In my case he has both.

The Minister has to ensure that the Bill strikes a balance between allowing adults to conduct their lives as they choose while protecting others from the consequences of their behaviour. An even more difficult balance is to ensure that those who commit sexual offences are brought to justice, while those who are not guilty, but are falsely accused, are not convicted. The House owes a debt to my noble friend Lord Campbell-Savours who was right to remind us, as he did with great force, that victims of sexual offences do not include just those who are the subject of attacks, but also those who are wrongly convicted and imprisoned as a result.

Primarily I am concerned—although I recognise that there is a great deal of good in the Bill—with matters that appear to me likely not to improve the situation at all or likely to worsen it. In that respect my main concerns relate to the changes proposed in the definition of rape. My experience is that there is no difficulty in obtaining convictions in the kind of rape which has been referred to as a "towpath rape"—the burglar who enters through a window, the stranger in the street or the rape committed at knife-point or after a beating. In my experience in most cases juries convict and readily do so.

Where juries tend not to convict is in those cases that depend on a defence of consent. As already stated, the conviction rate in relation to rape complaints generally appears to be very low. I have no doubt that the Government's intention in relation to the proposed changes is to move the goal posts and to tilt the playing field to alter what they and others see as an imbalance in relation to the conviction rate.

However, as the noble Lord, Lord Thomas of Gresford, did, it is right to look first at why so many complaints do not result in conviction. He mentioned some of the reasons. Another reason is the nature of the evidence. Such allegations often, indeed usually, involve one person's word against another. When a jury, which has to be sure of guilt, is not sure, it rightly acquits. False allegations are made. There was a time when, in a politically correct discussion on the subject, some people would never accept that that happened, but it is now recognised.

False allegations are usually made in the context of a pre-existing relationship. Sometimes the reason is clear. Someone who returns dishevelled in the morning and has to give an explanation may make up one that involves a rape allegation. Someone who has to explain away a pregnancy or a sexually transmitted disease or acts to punish rejection may make a false allegation. Human sensitivities are acute and there is no doubt that the feeling of having been used and discarded often lies behind a false complaint of rape. Often such a complaint is made not to a police officer or anyone in authority, but informally to a friend or to a relative. Although the complainant may never have intended the police to be involved, they may be brought in by others and once such a complaint is made it is virtually impossible to retract.

It is the so-called consent cases that pose the greatest difficulty. Juries rightly see that such allegations are easy to make and difficult to disprove. Juries are correctly wary of convicting unless there is other evidence or evidence of violence as well. That does not mean that such events do not happen, as we heard sadly from my noble friend Lord Campbell-Savours. It does and can happen. Juries, which do their best looking at people giving evidence in a court room, may come to a wrong conclusion.

Moving the goal posts to try to correct what is seen as an imbalance does not work. The abolition of the requirement to give a warning in sexual cases to look for corroboration, so far as I can judge, made no difference whatever to the conviction rates. Rape is quite rightly regarded as a very serious offence and offenders are sentenced as such. Juries are reluctant to convict in cases where the circumstances in their judgment do not merit such long custodial sentences: the boy who pushes his luck after a dance, the couple having difficulties and the husband who persists when the wife says she does not want sex, the cases where there has been a previous sexual history or a close friendship. Those may be serious matters; they may have lasting effects on those concerned. But juries are not fools. They look at the people who give evidence in front of them; they know how people can behave in delicate and highly charged emotional situations; and they believe that the label of "rape" should be reserved for the most serious of sexual attacks.

I am concerned about a number of aspects of what is proposed. I shall mention one that has not been raised so far—the intention to extend the definition of rape to include oral sex. I believe that a clear distinction is drawn particularly by young people between sexual intercourse and oral sex. Non-consensual oral sex is a serious and an unpleasant offence and should perhaps be a separate offence, but I do not believe, in the eyes of the majority of members of the public and the majority of those who are likely to be concerned by this legislation, that it is rape. I do not believe that the majority of young people would equate the two even when they are in force because of all the additional implications concerned with pregnancy and disease that can result from anal or vaginal rape. To extend the definition in that way is to diminish the seriousness of the label attached to a serious offence.

I am even more concerned by the intention to revise the definition to bring in the "reasonable person". I say that because in my experience if a jury, whatever direction it is given, thinks that no reasonable person could have thought that the woman gave consent, they convict because they simply do not believe the man who claims he thought she did.

Therefore, I suspect that that change would in practice make no difference. However, it would bring in complications beyond belief. As we know, and as the noble Lord, Lord Carlile of Berriew, mentioned, in relation to other aspects of the law where the reasonable person test has been imported, the jury is told to look at the characteristics of the defendant when applying it. We have now reached the situation where one must look to see what the reasonable glue-sniffer would have done in those circumstances.

We could easily have a situation of a jury having to try to decide what the reasonable person recently arrived in this country from a country with a totally different culture towards women might have felt was right in those circumstances. We are importing trouble and difficulties which will lead—I have no doubt—to appeals, to test cases and to redefinition. Do we really need to do that?

Clause 78 of the Bill—the shifting burden, the presumption of non-consent—alarms me even more. Most troubling is the shifting of the burden on to the accused person. I pause to say that many of these offences are old. They involve children and people who have been assaulted in care homes by people in whose trust they were. It is in their nature for cases not to be reported until months or often years after the event when evidence on either side will no longer be available. In those cases to shift the burden on to the defendant to establish that consent existed is a burden that should not be imposed. It tilts the playing field dramatically towards the danger of wrongful conviction.

In Clause 78, the circumstances that trigger the presumption of no consent are matters that a jury would be taking into account in any event. It has already been said by noble Lords, in particular by the noble Lord, Lord Thomas of Gresford, that in order to direct a jury about the proposed provisions, a judge will have to take them stage by stage through a whole list of hurdles which they must overcome. One thing that causes a defence counsel's heart to lift as the summing-up approaches is the realisation that the jury will have to be directed to reach its decision through just such a series of hoops and hurdles.

The greater the number of ingredients a jury is told it must consider, and the greater the number of possible options on the route to verdict, the greater the likelihood that a jury will be unsure at some stage. If you want safe convictions, you must keep it simple. These provisions vastly complicate issues. I indicate to my noble and learned friend that in Committee, as a woman and a lawyer, I shall be siding primarily with the lawyers who have so far spoken.

Although these proposals may be well intentioned—and I can see the perceived unfairness of someone who has been raped and complains of rape but believes someone has been acquitted because he unreasonably mistakenly believed that there was consent—I do not believe that the proposal will help. Indeed, it is likely to lead to some undeserved convictions.

Some other aspects of the Bill trouble me. I shall be grateful if my noble and learned friend can deal with them in due course. Some points have been dealt with by other noble Lords. I am very concerned that there should be nothing in the Bill to prevent someone who has a mental disorder or learning difficulties from forming consensual sexual relationships. As has already been said, sometimes happy marriages and children can occur when parties—both or just one—are so disabled. It would be tragic if that was prevented.

No one should be under any illusions about the provisions in the Bill in relation to children or those suffering from those disabilities. The real problem is that those people are unlikely to be excellent witnesses in court, simply because of factors of age and of the difficulties they experience. They may well be incapable of giving a consistent account or of handling even relatively gentle and controlled cross-examination. We must try somehow—and it may be beyond the scope of the Bill—to provide for those people where there is no prospect of a successful conviction but where help is needed, not just for them but for those who have perhaps been guilty of offences but cannot be brought to justice, so that they cannot re-offend.

We must find more and better ways to deal with offensive sexual behaviour outside the courtroom. That is often a very blunt instrument for dealing with behaviour which may occur, for example, within a family but which cannot be brought before the court without destroying that family.

Under the Bill, any girl who has sexual intercourse under the age of 13—like it or not, and as I mother I certainly do not like the idea—will be the victim of rape. By definition, whoever has sexual intercourse with a child, in whatever circumstances, is a rapist. I would like a reassurance from my noble and learned friend that it is not intended to use criminal law on children where, for example, consensual behaviour takes place between young people experimentally at school, in the playground or elsewhere. That is part of life and part of growing up. We must be terribly careful not to stigmatise at an early age behaviour that does not warrant the description of rape that the Bill appears to give.

I am concerned also about Clause 70, which deals with exposure. Is it right that a parent who walks from the bathroom to the bedroom in his or her own home with no clothes on and is "reckless" as to whether a child under 16 will see their genitals and possibly "be caused alarm or distress" will commit an offence? That would make many of us into criminals—at least those of us who are a distressing sight in the nude.

Can it possibly be right to criminalise sexual activity in a public place—which may be a cornfield or woodland—unless somebody is actually offended by it? On the first two occasions that I stumbled across such behaviour, my amusement greatly outweighed the embarrassment of those concerned. The third occasion was a rather different situation. I took a small daughter who could wait no longer into a public lavatory in Oxford where consensual sexual behaviour was taking place in a cubicle with the door shut—which I understand will be permitted. Not only was I embarrassed. I found that situation thoroughly distasteful. I was glad to hear what others said about that proposal.

All of us will want to examine a number of matters, but the most serious without question is the proposed change to rape law. My noble friend Lord Campbell-Savours rightly reminded us that there are two sides to this legislation. There are those who have suffered and sometimes been unable to seek redress because of loopholes in the law that we all want to see plugged. There are also those who have already suffered from political correctness—the noble Lord's phrase, but mine as well. We must be careful that we do not tilt the balance of justice too far the wrong way.

5.47 p.m.

Lord Monson

My Lords, I address the House with some trepidation after the barrage of top-rate legal expertise to which we have been treated for the past half hour.

Nobody could accuse the Government of lacking a sense of humour. There is nothing that the media love more than the House of Lords talking about sex—partly because we can afford to be more frank than hon. Members in another place, being in the fortunate position of not having to worry about re-election or reselection. By scheduling this debate for a Thursday, when little in the way of drama normally occurs in another place nowadays and entails an early enough start to get the debate in the first editions of the newspapers, the Government have ensured that the media can go to town if they choose—particularly the often witty parliamentary diarists.

It cannot be denied that throughout history, human beings have understandably found many aspects of sex extremely funny. Today we are discussing, for the most part, entirely serious matters. Many people predicted that the Bill would create—but it does not—the separate offence of "date rape", with appropriately lower maximum penalties and, by implication, considerably lower average sentences. One can readily appreciate that some cases of date rape are just as traumatic as rape by a total stranger. I would not deny that for a moment. Equally, surely many other cases are not nearly as traumatic. The victim in such a case is at present torn between deciding to refuse to testify or to press charges—thereby letting the alleged culprit off the hook completely, which she may think is going too far—or deciding to press ahead and co-operate with a prosecution and possibly seeing her boyfriend, former boyfriend or even husband sentenced to a minimum of five years in prison, in conformity with the guidelines laid down by the Lord Chief Justice. That means a man spending at least three years and four months behind bars, possibly being seriously assaulted by other prisoners and almost certainly ruining his career.

The lady in question may well feel that to be a totally disproportionate and excessive punishment. Should there not at least be some mechanism whereby the victim—if she so chose, and she may well not so choose—could plead for a reduced or partially suspended sentence in such a case, with her plea taken fully into account by the trial judge before he decides on the appropriate sentence? That is all the more important given that, as noble Lords have mentioned, Clauses I and 78—albeit with the best of intentions—tip the balance somewhat more against the man than is the case at present. The noble Baroness, Lady Mallalieu, and others mentioned that. I should guess that for every man who dishonestly claims that he thought that the girl consented, there is at least one who claims that honestly. I agree with much of what was said by the noble Lords, Lord Thomas of Gresford and Lord Campbell-Saviours, on the matter.

Clause 5 provides for up to 10 years imprisonment for anyone who "touches" any other adult with sexual intent without being invited to do so. That would presumably include a tipsy individual at an office Christmas party who patted someone else's backside or put his or her arm round another employee's waist or shoulder. Ten years in prison? I know that the maximum sentence is not often imposed, but really! The Government are seeking to reduce the prison population; is that really the way to go about it?

Far more worrying is the absolutist nature of the undoubtedly well-intended Clause 18. Under the clause, if a hospital nurse aged 18 and a strapping young patient of 17 years, II months who, let us say, is perfectly healthy but has a broken wrist, or something of the sort, fell for each other when he was in hospital and sexual contact ensued—it might be only a kiss—the nurse could be imprisoned for five years, even though the age difference between them would be as little as a couple of months. That is wrong; I cannot believe that others would not agree about that.

However, having said that, I have absolutely no difficulty with Clauses 21 and 22, which, unlike Clause 18, are rightly aimed against perversion as opposed to infatuation.

Equally, among the Bill's many commendable provisions, I commend Clause 65, which tackles so-called date rape drugs, Clause 72, which reduces the maximum penalty from life imprisonment, which is a ridiculous penalty for bestiality, to two years and Clause 73, which, not before time, makes necrophiliac activity a criminal offence.

Clause 74, dealing with sexual activity in public, has given rise to enormous mirth in the press and among the public generally. It also creates certain paradoxes. Reading carefully the clause and the Explanatory Notes so helpfully provided, it appears that a couple making love in their garden who could not be seen from the street, but who could be seen from their neighbour's first-floor window, would not be guilty of an offence. I think that the noble Lord, Lord Alli, was needlessly pessimistic about that. However, their neighbour standing at that first-floor window would be guilty of an offence attracting a sentence of two years under Clause 71 if he or she spotted what was happening but did not immediately avert his or her gaze and pull down the blinds.

However, if a number of slats happened to be missing from a fence that separated the garden in question from the pavement or road outside and a number of fascinated passers-by paused to stare at the goings-on inside, the copulating couple would be committing an offence. However, they could be sent to prison for only six months but the voyeuristic passersby could serve four times as long. It is in such matters that seriousness gives way to comic relief.

Another provision seems at first glance risible but is the opposite. Many noble Lords have mentioned the Government's strange determination to turn public conveniences into public inconveniences or even, at one remove, to eliminate them altogether. As matters stand, all over the country—I have examples from Hexham, Aberdeen, Leeds, Malmesbury, Grantham, Derby and elsewhere—public lavatories are having to be closed down as a consequence of misuse by homosexual men to the great disgust and exasperation of families with children among others. In another place, the Minister, Mr Hilary Benn, asserted in the Sunday Telegraph of 9th February that, what people do away from the eyes of others is a matter for them". Perhaps I may submit that it is equally necessary to do it away from the ears of others, as the noble Baroness, Lady Noakes, the noble Lord, Lord Carlile, and others have argued.

Finally, perhaps I may backtrack to Clauses 28 to 32. I agree with the Christian Institute in deploring the proposed elimination from our statutes of the word "incest". It is an ancient word, understood by everyone, deriving from the Latin and found in near identical form in almost all Romance and some Nordic languages. Lord Kennet, a former colleague on the Labour Benches of the noble and learned Lord, Lord Falconer, once pointed out in one of his many books on matters sexual (written under the name of Wayland Young) that incest was the one taboo common to all religions, races, linguistic groups and civilisations, whether advanced or primitive. Although it may make little difference in strictly practical terms, for symbolic reasons it seems unnecessary and unwise to abolish it. It looks as though we shall have a very busy Committee stage.

5.57 p.m.

The Earl of Listowel

My Lords, my noble friend Lord Northbourne has asked me to tender his apologies for being unable to be present. He has to take part in an important family celebration. He asks me to alert your Lordships to his concerns about breach of trust provisions regarding social workers resident in children's homes. My noble friend believes that we need to approach the issue carefully in order not to drive away or intimidate such workers. I listened with great interest to the noble Baroness, Lady Blatch. I look forward to reading Hansard.

I confine my comments to children who display sexually harmful behaviour towards other children. Are we taking this opportunity to minimise the harm they cause and the harm caused to them? We need to consider with great care how such children may be enrolled on a sex offenders register. According to the adolescent psychiatrist, Dr Eileen Vizard, an expert in this area, at least a third of abusers are children. We know that most of those children have been abused themselves. Their behaviour is closely associated with violence in the family, either against them or other family members. Often they are victims of sexual or physical abuse or neglect.

We need to consider in our country the social context of this issue. We have far more children in prison than any of our continental neighbours. We have the lowest age of criminal responsibility. We have a care system which is still backward compared with that of many of our European neighbours despite important improvements by the Government. We struggle to recruit and retain the social workers who care for our vulnerable children and their families because of decades of under-investment in, and disparagement of, their work. We do not have a good track record in caring for our children in need.

A key point made by children's organisations is that all children are children first and foremost and that they have a large capacity for change. Adults who sexually abuse children are notoriously difficult to cure. Treatment programmes appear to concentrate on helping those adults to contain their desires towards children—the excitement and contemplation of sexual activity with a child seems to remain with them. Children are more amenable to change. That is why there is a reluctance to describe children who display sexually harmful behaviour towards other children as child abusers. There is a need to distinguish between adults and children.

I am concerned therefore that the decision as to whether a child is entered on the sex offenders register is taken with the utmost care. I appreciate the Minister's replies to my questions on this subject a few days ago. However, I hope that in Committee we shall consider how this might be done sensitively—for instance, whether it might be appropriate for a panel of experts to be involved and how often enrolment on the sex offenders register would be reviewed.

I also hope that this may be an opportunity to think more carefully about the roots of paedophilia. That we now recognise that one-third of cases of sexually harmful behaviour towards children derive from children, allows us to consider whether we are doing enough to intervene early and to prevent a further generation of sex offending adults.

Here, I should like to quote from Eileen Vizard. She wrote that, a public debate should occur about the need for early intervention to prevent the development of lifelong sexually abusive behaviour. Whilst it may appear sad to consider the sexually predatory behaviour of children against other children, it is encouraging to reflect that the early childhood origins of adult paedophilia and sex offending are being uncovered. It will now be vital that effective steps are taken to prevent a new generation of sex offenders and victims from being created". I am concerned that, in this country, we are prepared to say that 10 year-olds are able fully to understand the consequences of their actions, just as an adult should, and can be held criminally responsible. However, I also have to welcome the fact that we treat 10 year-olds as criminals. I have to welcome it because otherwise they will not receive the multi-disciplinary assessment, and the attention from child and adolescent mental health services, that they need.

Many of these children are victims—children in need—but they are unlikely to receive the services they need unless they behave in such a way as to become criminal. That is highly regrettable and is a situation that we should strive to change.

6.3 p.m.

Lord Lloyd of Berwick

My Lords, perhaps I may begin with a short word about my credentials to speak in this debate. Looking back on my career at the Bar and how I earned my living, my former pupil, the noble Lord, Lord Thomas of Gresford, might regard it as rather cheeky that I should be taking part at all. I knew very little about crime and absolutely nothing about sexual crime.

However, it so happens that, as has already been pointed out on my behalf by the noble and learned Lord, Lord Ackner, I was a member of the Criminal Law Revision Committee in July 1975 when we were asked by Lord Jenkins of Hillhead to look at the law of sexual offences. We reported on 30th December 1983—it took us eight years. I hasten to add that we were working part-time and not full-time. Nevertheless we took quite a long time to investigate the subject, but nothing like as long as successive governments have taken to act on our recommendations. It is nearly 20 years since we reported and only now is there a Bill before the House. That does not suggest to me that successive governments have given the matter of sexual offences the top high priority which has been claimed on behalf of the Government this afternoon.

The Criminal Law Revision Committee consisted of a number of lawyers and judges of all sorts under the chairmanship of Lord Lawton. But more important than the composition of the committee was the fact that we had a policy advisory committee of distinguished people, one of whom was the then Dean of King's better known now as the right reverend Prelate the Bishop of Oxford. It is sad that he is not in his place this afternoon because he would have been in a very good position to help us in this debate.

A committee of lawyers such as we were might have very many and grave disadvantages. But it had one great advantage that whatever we recommended, whether it be right or wrong, one could be sure that it would be workable. The trouble with a committee of civil servants—this point has already been made, certainly by my noble and learned friend Lord Ackner—is that it does not have the experience which judges have of directing juries. So it is perhaps hardly surprising if some of its recommendations prove difficult to put into practice when explaining the law to the 12 men and women sitting in the jury box. It is perhaps not surprising if some of its recommendations also savour of an attempt to raise moral standards generally, which no doubt is an admirable objective, but finds no proper place in the criminal law. One can find examples of that type of recommendation in the Bill which is now before your Lordships.

I start with Clause 1. It contains one of the most important and controversial changes in the existing law which I have seen for many years. It will be interesting to see how it will be defended in due course by Ministers because so far the noble and learned Lord has not persuaded me. At the risk of being tedious, I remind your Lordships of Section 1 of the 1956 Act, which is not so very long ago. I was 27 at the time. It simply says: It is an offence for a man to rape a woman". That is all that it says. The definition of rape was left to the common law as it still is, I believe, in Scotland. At common law the essence of the offence of rape was simply sexual intercourse with a woman without her consent. In other and older words it was intercourse by, force, fear or fraud". Then there was the case of Morgan in 1975, decided by this House. It was held that it was a defence if a man genuinely and honestly believed that the woman was consenting even if his belief was unreasonable. That decision was subject to review by Mrs Justice Heilbron and the committee which was appointed with her. The extracts from that report have already been read by the noble and learned Lord, Lord Ackner. But the essence of it was that the Heilbron committee came out in favour of the decision in Morgan, so much so that it suggested that it be codified. That is exactly what happened in the following year, 1976, subject to the safeguards that it recommended; namely, that the presence or absence of reasonable grounds for the defendant's belief is a matter that the jury must, not only may, take into account in considering whether the defendant had a reasonable belief. The 1976 solution was very simple, very sensible and very satisfactory. So far as I know, judges have never had any difficulty in directing juries in rape cases in accordance with the 1976 Act. I do not recall ever having had any difficulty myself.

So the question arises of why we should now make a change by recommending the reversal of the law as established by the House in Morgan and confirmed by the Heilbron committee. The really important point in this debate—as it has been the really important point for the noble Lords, Lord Thomas of Gresford and Lord Carlile, the noble and learned Lord, Lord Ackner., and the noble Baroness, Lady Mallalieu—is whether we should now seek to interfere with the mental element in the crime of rape.

I have no difficulty with Clause 1(2), which states in satisfactory words the existing law. But I have great difficulty with subsection (3). I find it objectionable on three grounds. First, it is wrong in principle. With few exceptions, a person cannot be found guilty of a criminal offence unless he has a guilty mind, especially in serious offences such as rape. That is a general principle of criminal law. In theft, for example, the prosecution must prove dishonesty. It is not enough in theft cases that a reasonable man would regard the defendant's action as dishonest. The prosecution must prove that the defendant himself regarded it as dishonest. The test is subjective, not objective. That was decided by the Court of Appeal in the case of Ghosh, to which I was a party.

The same is true of murder. As the noble and learned Lord will know full well, it is not enough that a reasonable man would have foreseen serious harm to the victim from the action that he takes. The defendant himself must have intended the serious harm. The same has always been true of rape. I see no reason now for making an exception for the first time in the case of rape. What a reasonable man would have done in the circumstances is very relevant to the question of whether the defendant had a guilty mind. That is what the 1976 Act says. But it is not an alternative ground on which he can be found guilty, as subsection (3) proposes.

My second objection is that I foresee great difficulty in explaining subsection (3) to a jury, especially in conjunction with Section 78. What sort of reasonable person? What sort of doubt? Whenever we refer to a "reasonable man" in criminal legislation we get into trouble. We have got ourselves into an unholy muddle in regard to the law on provocation in cases of murder, to which the noble Lord, Lord Thomas of Gresford, referred, because of the reference there to a "reasonable man". It is not the fault of the courts but of that word in the legislation If anyone doubts the muddle we have got into. I suggest that they look at the decision of this House in the case of Smith, 2001 Appeal Cases at page 146.

It is simply no good providing a definition of rape which would satisfy a philosopher or a logician; it has to be readily understood by a jury. Subsection (3) will never be understood.

My third objection is that I simply cannot see the point. It is said that the Government are concerned that the conviction rate for rape is lower than they would like it to be. But if the Government think that they will get even one extra conviction by relying on the new definition in subsection (3), in my opinion they are gravely mistaken. The only result of subsection (3) will be not more convictions but more appeals.

There are many reasons why the conviction rate is apparently so low, some of which were given in the magnificent speech, if I may say so, of the noble Baroness, Lady Mallalieu. Perhaps I may say in passing that I entirely agree with her about rape not including oral sex. I would have developed that point myself if she had not done so. I listened with great care to what the noble Baroness said and agree with every single word.

There are many reasons for the low conviction rate, but I suggest that it is possible that juries know more about the real meaning of the offence of rape than the Home Office or even ourselves in the House of Lords. I urge the Minister not to be led by statistics but to leave the law on the definition of rape as it is.

I shall now say a few brief words on some of the other provisions. I entirely support the new provisions relating to children, to those with mental disorders, to those with learning difficulties and to those in positions of trust. All are welcome. I support the principle underlying Clause 74 in regard to sexual activity in public, although not the drafting.

As to incest, I am surprised to find that sexual activity between brothers and sisters should remain unlawful once they have reached the age of 21. Our policy advisory committee was in favour of relaxing the law in that respect; so were we, and so am I. In accordance with the general principles stated in Wolfenden, which are of great importance, the criminal law should not be concerned with what consenting adults do in private as long as no one else is harmed.

I am surprised that there is nothing about brothels. Prostitution is mentioned but there is nothing about brothels. I may be wrong about that. Clause 71 in regard to voyeurism is an absurdity, and Clauses 66 and 67 are only marginally less absurd. Their provisions will never be used in practice and should not be on the statute book.

There are many improvements to be made to the Bill, especially in Clause 1, but otherwise, despite the fact that it comes very late in the day, the Bill is nevertheless welcome.

6.18 p.m.

Baroness Jay of Paddington

My Lords, it is a privilege to follow the noble and learned Lord, Lord Lloyd of Berwick. I, too, speak with some trepidation as a non-lawyer in this expert legal debate. But, as a laywoman—and I emphasis the laywoman aspects of my remarks—I welcome the Minister's words in introducing the Bill—words which, I understand, offended the noble and learned Lord, Lord Ackner, when he said that these archaic, inchoate and indiscriminatory laws are indeed in need of broad reform.

Given the remarks of my noble friend Lady Mallalieu, I appreciate that this is not a battle of the genders but, nevertheless, as a previous Minister for Women, I welcome the proposed changes on rape. Notwithstanding the sincere legal concerns raised in the debate, I follow my noble friend Lady Gould of Potternewton in seeing these measures as a positive step. After all, many courageous women's advocacy and victim support groups have campaigned on these issues for a long time. I say with respect to my noble friends who have spoken in the opposite way, particularly to my noble friend Lord Campbell-Savours, that I am sure that if they were present they would raise equally emotive individual cases on the other side to illustrate their point, and I think they would do so without a hint of political correctness. I certainly do so in supporting the Government on the issue.

As we have been reminded today, these measures have not been dreamt up by individual Ministers. They are based on the recommendations of two review bodies and detailed testing of public opinion, which has meant that numerous previously thwarted women's voices have now been heard.

I also welcome the proposals intended to produce greater equality before the law for practising adult homosexuals and those who have a mental disorder or are learning disabled. Their causes have been championed for many years by excellent advocates, including in this House by the noble Lords, Lord Alli and Lord Rix, from whom we have already heard. I am glad that the Government have listened carefully to many varied and authoritative views and to expert advice before bringing the Bill before Parliament. As we have learnt today, Ministers have achieved broad political support for the aims of these measures.

Although I am not a lawyer, as I have stressed, I can well understand the principles of the technical difficulties of evidence on consent in this area, although I would not necessarily want to face an examination on the finer points that the noble Lord, Lord Thomas of Gresford, raised this morning. The issues of consent and intention have always been hugely complicated, from a social as well as a legal point of view. We have already heard several examples of appropriate criminal action being stymied by personal loyalties or emotional regrets. I know from voluntary work in the field of sexual offences that there are enormous dangers, in that these laws and those who use them can be destructively ridiculed. That must be so in our adversarial system, when conflicting personal stories are the only basis for prosecution and genuine—or less genuine—victims and assailants suffer from the real burden of proof.

That is why I welcome the apparent shift in the balance in the Bill. The Government must respond to important legal questions on workability, but I hope they will stand firm on the principle of their proposals on rape and other serious offences. The tired old jibes about needing a policeman in every bedroom must not be allowed to resurface.

However, I must agree with previous speakers, including my noble friend Lady Thornton and the noble Baroness, Lady Noakes, who first raised the possibility of over-criminalising—I think that was the verb used by the noble Baroness, Lady Noakes—some sexual activities. I hope Ministers will not think me frivolous if I say that some parts of the Bill seem to provide more opportunities for television sitcom episodes than for proper, appropriate responsibility in criminal justice. Other noble Lords have given examples. My main examples are in Clauses 70 and 71, which deal with the appropriate issue of indecent exposure and voyeurism. I am glad to follow my noble friend Lady Mallalieu, who expressed her concerns on the issue. Before she spoke, I had begun to think that perhaps it was only the lay mind that boggled at the possible prosecution under Clause 70. The Explanatory Notes point out that if person A, is inside his house and has only adult guests, if he walks around in front of them naked, he will only commit the offence where he knows or intends to alarm those guests". As the noble and learned Lord, Lord Lloyd of Berwick, said, prosecutions under these laws seem highly unlikely.

None the less, most of the Bill reflects extremely important issues of protecting individual human rights and protecting the public from sexual offences. I hope that when it is enacted, great care will be given to providing significant resources, especially for training, which will enable the proposed changes to be implemented sensibly and sensitively in a social as well as legal context. The Government have rightly responded to public concerns in seeking to bring sexual offences laws into line with changed social attitudes and expectations. However, it is equally important that statutory changes are not held up to ridicule, either by expert lawyers or what I can only describe as a name-calling and, perhaps, witch-hunting media.

That is particularly true in the context of offences involving children and young people. I follow other speakers in welcoming the tightened laws on abuse of trust and sexual exploitation by adults of children and young people. My major concern is with the blanket proposal that no young person of 13 or below is capable of consenting to sexual activity, even with someone of a similar age. Here, too, I agree with my noble friend Lady Mallalieu.

In an earlier debate, on the White Paper, my noble and learned friend the Minister was precise on the matter. He quoted from the White Paper, which says that, where it is another child or someone in their mid teens who has sexual activity involving physical contact with someone under 13, the only charge available will be a non-consensual offence". That is rape. However, he acknowledged in response to a question from me that some instances might be better dealt with by the child protection agencies rather than the courts.

I want to pursue my noble and learned friend on that matter, because the Government seem to have updated the law without paying sufficient attention to changing sexual behaviour among and between very young teenagers. That point was helpfully noted in the extensive briefing distributed to us all by the important children's organisations. We have already heard some figures from my noble friend Lady Gould. I remind the House that the average age of reported first intercourse is now 16, which is the legal age of consent. That means that very many young people are sexually active at a younger age.

Several research reports have suggested that girls, in particular, may later regret an early sexual experience, but as far as I know there is little indication that sex between young partners is non-consensual in the commonly understood sense. The capacity to consent is rarely challenged. By making a young teenager or a child automatically legally incapable of giving consent, the Bill could act against the grain of the vital work of schools, health educators and child protection agencies in trying to bring about mature sex and relationship behaviour in that age group.

If officiously implemented, the measures could follow some of the worst aspects of the problems that we saw in relation to Section 28, as well as reinforcing youthful opinions that the adult world is totally alien to their experience. We may regard early sexual experience as immoral, misguided or simply precocious, but there is nothing to suggest that by making it automatically criminal, we do anything except, perhaps, make it excitingly illicit.

The Department of Health is, apparently, working on drafting proposals on the legal concept of capacity. The noble Lord, Lord Rix, referred to that matter today in relation to mental disability. I hope that it may be possible to incorporate some of that thinking into these proposals—especially with regard to a child's evolving capacity to consent—before they become law. Otherwise, I suspect that these well-intended provisions may undermine other aspects of the Government's health and social education policy, such as the relatively successful campaign to reduce the appallingly high rate of teenage pregnancies in the United Kingdom.

My other concerns touch on issues such as the detail of clauses on child prostitution and child pornography on the Internet, authoritatively addressed by my noble friend Lady Thornton. Many of these concerns are embraced by the broad topic of consent and intention, which I look forward to discussing in Committee.

Overall, I congratulate the Government on bringing forward such a wide-ranging Bill. I am not alarmed by the reference of the noble Lord, Lord Alli, to buses! I am sure that as we examine the provisions closely, the consistency and the workability of the Government's ambitions will be clear.

6.29 p.m.

Lord Adebowale

My Lords, early in my career I was told that you should never start a contribution to a debate with an apology. I apologise to the House that I missed this morning's contributions. I have apologised to the Minister and I take this opportunity to apologise to the House. It was an error due to ignorance of the House's protocols, for which I hope that noble Lords will forgive me.

I am not a lawyer and feel humbled having listened to the excellent contributions made by those skilled in the law. My interest in the Bill stems from my position—in making this point I declare an interest—as Chief Executive of Turning Point. Turning Point has provided learning disability services in England for some considerable time—well over a decade. Our services span residential and day support and community services for people with severe learning disabilities. Our day service provision in Salisbury and our residential provision in Durham provide services for people who, in addition to their learning disability, also have a mental health need or have been involved in the criminal justice system. Those are just two examples of our services.

The law around sex offences is part of the criminal law that deals with the most private and intimate part of life, sexual relationships when they are nonconsensual, inappropriate or just plain wrong. The law often needs to balance two competing interests: the law must respect the right of all consenting adults to have sex, and that must include those with learning disabilities. As we have heard, many people with learning disabilities have successful relationships and many are parents. However, that needs to be balanced against the need to protect people with a learning disability from abuse and exploitation. What is important is to make sure that people are not pressurised or threatened into having sex and that those who cannot consent are safeguarded from abuse. That suggests treating sexual intercourse with someone who has not clearly consented as rape and imposing severe penalties on people who in committing sexual offences have betrayed a position of trust.

The Bill seeks to improve the current patchwork quilt of provisions that have to date poorly served people with a learning disability. Clearly, the current law of "sex with a mental defective" is offensive and outdated. It has not sufficiently protected people with a learning disability. The scope of abuse remains extensive and the law does not offer a sufficient remedy. It has not ensured that abusers are appropriately punished. Uncertain laws only serve to perpetuate misconceptions about the sexuality of people with a learning disability and fail to serve their best interests.

Clause 33 makes it an offence to have sex with a person who cannot consent to sexual relations. The Government have drawn up a sensible test of capacity to consent so it is clear whether someone was capable of entering into a sexual relationship. However, I am concerned that the defendant will still be able to claim a defence that they did not know that the victim was a person with a learning disability and lacked the capacity to consent. This is a dangerous loophole. Once it has been established that an individual does not understand the nature of the sexual act or its implications, it cannot be a valid defence for the perpetrator to claim that the person consented. There cannot be any excuse for a defendant's actions. The prosecution will still need to demonstrate that the act took place and that an individual lacks the capacity to consent based on the balance of evidence presented to court. This is still a high evidential burden. However, those who cannot consent to sex should be given absolute protection by law and should not have to get involved in complex legal battles.

Clauses 43 to 48 make it an offence for an individual working in a residential home or other setting to have sex with a person with a learning disability living or receiving services in that care setting. Care workers are in a position of power or influence over the people they look after and are certainly entrusted with work of a very intimate nature. There is a relationship of care and trust in these situations. The presence of that power imbalance undermines the ability of an individual to give free consent. For those reasons, compliance should not be confused with informed consent. It will mean that people find it difficult to deny sexual demands or protest effectively about their actions. It may be impossible for a resident to confide in anybody about abuse perpetrated by a care worker, and the resident may be afraid to speak out.

Noble Lords may be familiar with the Long Care inquiry, set up following extensive abuse of people with a learning disability in Buckinghamshire. In that case more than 50 people suffered serious abuse at the hands of Gordon Rowe and his staff at two homes. Effectively, the homes were running a systematic regime of physical and sexual abuse of residents, including rapes and sexual assaults, for more than 10 years. Residents lived in a climate of fear. Gordon Rowe raped women and made them undress and watch pornographic videos. He forced women to have sex with other people and with animals, which he filmed and then forced them to watch. One blind man was made to sit in a chair for days while Gordon Rowe struck him round the head each time he passed by.

I hope that that case alone will persuade the Government to reconsider the sentencing provisions under the offence. The Bill currently carries a maximum sentence of seven years and, more worryingly, a sentence of only six months under summary conviction. Inappropriate, abusive relationships between care workers and those in care should be made illegal. They should carry a maximum sentence of life, although full appeal rights should be available. While it is for the judge to consider the maximum level of sentence based on the facts of the case, the option of life imprisonment should be available in instances of grave abuse.

Clause 48 defines care workers. I understand that it is the intention to extend protection to people who receive care in training centres, day centres or other facilities. However, I hope that that can be reflected more clearly in the Bill. There are real concerns about the scope for abuse in those settings and that day services remain unregulated, with the potential for sex abuse to continue unchecked.

Police attitudes and those of the Crown Prosecution Service are critical. There still remains a commonly held view that an individual with a learning disability will not make a credible witness in court, and for that reason prosecutions may not proceed. The new special measures that stem from the Youth Justice and Criminal Evidence Act are important. I hope that the Government will be prepared to monitor the extent to which special measures are granted or refused to witnesses with a learning disability and whether those measures have in practice supported that individual to give their best evidence in court.

Finally, more work is needed to be done with adults with a learning disability, to help them recognise potentially abusive situations and to seek help and support. The care standards commission should certainly take on that role in relation to residential and supported living environments.

The nature of abuse of vulnerable adults is extensive. It deeply affects the lives of people with a learning disability and their families. I am grateful that the Government have introduced a new code of sex offences, with new clear and coherent offences that are fair, fit and just for the 21st century.

6.38 p.m.

Baroness Walmsley

My Lords, I am not a lawyer either, and I am quite happy about that. In fact, one might say that I am on these Benches as a counterbalance to the weighty legal brains of my colleagues. I come from a completely different starting-point to them, but noble Lords will be interested to know that we have reached the same conclusions.

We have had an excellent debate, and there is clearly a great wish in the House to work together to produce a good and workable piece of legislation. The Liberal Democrats welcome many aspects of this Bill, but we have concerns about others. The Bill seeks to protect individual adults and children against any nonconsensual sexual act, protect the public against being given unreasonable offence by people undertaking sexual acts in public, and correct areas in which adult gay men were previously criminalised for consensual sexual activity. Those intentions are right and welcomed. Having said that, the noble and learned Lord will forgive me if I concentrate at this late hour mainly on our concerns.

We work on the principles that people across the whole spectrum of sexuality should be treated equally under the law, that what consenting adults do in private is their own business, that children and people with mental and physical disabilities should be dealt with appropriately and that the human rights of victims and the accused should be protected.

First, I address the genuine attempt by my noble friend Lord Thomas of Gresford to identify an effective way in which to increase safe convictions for rape. As a woman I want to see guilty rapists convicted and women protected against sex offenders. As a Liberal Democrat I want to see justice done and the human rights of the accused and victims alike respected.

Currently the conviction rate for rape is unacceptably low. Experts have reason to believe that there are numerous guilty defendants who are never convicted and who are free to offend again. Rape is a terrible crime of violence, usually against a woman and anything within reason that can be done to punish the guilty and to deter potential offenders will be welcome. However, I also believe that wherever appropriate the opportunity should be grasped to offer treatment to offenders while in custody to prevent re-offending. I wonder what reassurance the Minister can give us about the availability of that.

The objective of a trial and a sentence must be to identify and to punish the guilty, to provide the opportunity for rehabilitation and prevent other women suffering the violence of rape in the future. Therefore, I welcome the pragmatic proposals of my noble friend Lord Thomas of Gresford. His idea of a lesser, albeit serious, offence could allow juries to convict on a lesser charge in cases where they believe that there is some guilt, but when they would have shrunk from a conviction on the serious charge of rape with its substantial custodial penalty.

That does not mean we should be soft on rapists. We agree with the noble Baroness, Lady Gould, that rape is rape and that the CPS should prosecute it as such whenever there is a realistic chance of achieving a safe conviction. However, in cases where it appears that a conviction is unlikely I would rather have available a lesser, albeit serious, charge with a slightly less serious penalty than risk the guilty offender walking away completely free to re-offend. I suspect that many complainants would feel that way too. I hope that the Minister will give serious consideration to that constructive suggestion.

Clearly we all want to achieve the same: more genuine convictions. We simply doubt that the Bill as it stands is the best way. As my noble friend Lord Thomas of Gresford and the noble Baroness, Lady Mallalieu explained, juries will find the provisions too difficult and confusing.

The noble Lord, Lord Campbell-Savours, made an impassioned speech about the effect on innocent men of an unfounded accusation of rape. None of us wants to see that happen. His comments prompt me to ask the Minister whether there are any plans to restore anonymity for the defendant as well as the complainant up to the point of verdict.

My second point is an aspect of sex in public places that has not been raised so far. I refer to prison cells in relation to the definition in the Bill of a private place. The current situation could be seen to be a breach of the duty of care of the Prison Service because it could lead to the spread of HIV/AIDS through prisoners having unprotected sex due to the lack of availability of condoms in prisons. We should be concerned with the health of prisoners and with harm reduction, so the current situation is unacceptable.

It is well documented that one implication of imprisoning men and women in a large single-sex environment is that some will engage in consensual sexual activity. Her Majesty's prison regulations have sometimes been used against gay men who engage in sexual activity in prison. The basis of that is that it is contrary to good order and discipline and it is also believed by the Prison Service to be illegal. The Prison Service's contention is that a prison cell cannot be regarded as a private place under the terms of the Sexual Offences Act 1967 because a prison officer may enter a cell at any time. However, that contention has not been tested in a court of law.

Dr Rosemary Wool of the Prison Service's health department in 1995 in a letter to prison governors stated that she believed a prison cell to be a private place for that purpose. Despite this, the Prison Service felt that providing condoms would be condoning an illegal act and banned them. From 1997 onwards, official policy was that condoms could he issued by medical officers on prescription. However, some provide them and some do not. Anyway, there is a clear disincentive for prisoners to apply for them. The Department of Health even offered to provide condoms anonymously in appropriate locations throughout the prisons but that was rejected. Actually, some voluntary organisations provide them, but this provision is not universal.

Lack of access to condoms constitutes a considerable risk to public health because of the potential for exposure to HIV and hepatitis. The Bill gives the Government a chance to put this right by making it clear that, for the purposes of the Bill, a prison cell is a private place. I hope the Minister will be able to reassure me that the Government intend to do that by amending the Bill.

I now turn to the matter of sex tourism. A number of agencies have raised with us the fact that the Bill has a loophole which leaves children in other countries vulnerable to abuse by sex offenders from the UK. Convicted sex offenders have to notify the UK authorities only if they are travelling abroad for eight days or more. Even then, they have to notify only about the first destination country. Seven days is more than enough time for someone to travel to the Far East and commit offences against children without anyone knowing that they are even out of the country.

In answer to my honourable friend for Romsey Mrs Sandra Gidley the Prime Minister promised that this loophole would be closed by reducing the notification period to 72 hours. However, eight days has appeared in the Bill. This is a real opportunity for the Government to play their part in stopping sex tourism. I join the noble Lord, Lord Alli, and others in asking the Minister to say when the Government propose to bring forward that amendment.

Will the Minister also ensure that British police work more closely with the police in destination countries to track sex offenders where they are thought to be a risk to children to prevent them committing abuse. Although that was made possible by the Criminal Justice and Courts Services Act 2000, as the noble Lord, Lord Alli, has said, it is not done automatically.

The next issue I would like to address is Northern Ireland. Although the Bill seeks to bring about equal treatment under the law between heterosexuals and homosexuals, only certain clauses relate to Northern Ireland. Will the Government draft the necessary consequential amendments fully to update the Homosexual Offences (Northern Ireland) Order 1982 and other laws to achieve parity with England and Wales for homosexual people in Northern Ireland?

I now turn to the issues relating to young people. Naturally, we welcome measures to protect children from sexual abuse, but it is the way in which the Bill deals with young people who are accused of sexual offences that concerns us most. I think that it boils down to the danger of over-criminalisation and the lack of clarity about where professional assessment and treatment come into the picture.

We know that sexual activity between the ages of 13 and 16 is fairly common. A recent survey showed that those reporting sexual activity before 16 was 30 per cent for men and 26 per cent for women. Mutually agreed experimentation is a normal part of sexual development and, as long as precautions are taken against unwanted pregnancy and sexually transmitted diseases, it does not do any harm in most cases between young people close in age.

However, we also know that between 25 per cent and 40 per cent of all sex offences against children are perpetrated by juveniles. But evidence suggests that a majority of these young people do not go on to become sexual offenders in adulthood. Work in Canada shows that, with the right therapeutic help and support, most children exhibiting harmful sexual behaviour can be stopped from continuing with such behaviour in adult life. The crucial thing is to identify the problem early—if it is a problem—to treat the matter with sensitivity and to provide high quality professional assessment and treatment. That is not always available in this country.

The All-Party Parliamentary Group for Children heard about that matter in a very moving evidence session last year. I think these matters should be dealt with though the child protection system and not through the criminal justice system. That is why I am so worried about several measures in the Bill, many of which have been touched on by a number of noble Lords, including most recently by the noble Baroness. Lady Jay. A balance needs to be struck between dealing appropriately with a range of coercive behaviour without criminalising mutually agreed behaviour. I am not sure that the Bill gets the balance right. In seeking to protect young people from abuse, the Bill is in danger of criminalising normal sexual behaviour. It sends out the wrong message to young people by turning early sexual exploration from something normal to be enjoyed into furtive activities punishable by a gaol term. By doing so, it will deter young people from seeking advice and professionals from giving it. I seek the Minister's assurances.

I should like the noble and learned Lord to comment on the paradox that the Bill lays down that a child under 13 cannot understand the implications of sexual activity sufficient to consent to it but can simultaneously be expected to understand the implications sufficient to be held criminally liable for such an activity. There seems to be a lack of logic and consistency.

Clauses 9 to 13 concern sexual activity with a child or causing a child to engage in a sex act. They would make it an offence for an 18-year-old boy to be in a consensual sexual relationship with a 15-year-old girl. Is that what the Government intend? Clause 14 covers the same offences committed by a young person under 18. Will assessment of those offences by on a case-by-case basis? Under the Bill, it would be an offence for a 17-year-old boy to be in a consensual sexual relationship with a 15-year-old girl, but that is a fairly common situation.

Over and over again, the Bill omits any reference to a strategic, multi-agency approach to children and young people who display sexually harmful behaviour, to ensure the co-ordination of assessment, referral and therapeutic treatment services.

Clause 15 concerns arranging a sexual offence. I am greatly concerned that people providing sex education or contraceptive services to under-16s would be deemed to be committing an offence. Clauses 110 to 116 on sexual harm orders also appear to contain that risk. Clause 110(3)(c) refers to giving a child, anything that relates to sexual activity or contains a reference to such activity". As a consequence of the Gillick case in the early 1980s, children are entitled to the same level of patient confidentiality as adults and to request contraceptive services under 16 years of age. They also have that entitlement under Article 8 of the Human Rights Act.

Clauses 110 to 116 appear to revoke the Gillick ruling and Article 8 of the Human Rights Act. Sex education is a vital part of the school curriculum and essential to the physical, mental and emotional wellbeing of our young people. I was astonished to hear the noble Lord, Lord Skelmersdale, refer to it as a licence to engage in under-age sex. Unless educational activity, help, advice and treatment are specifically excluded, how will the Government ensure that conscientious professionals are not at risk of falling foul of the legislation?

Clause 17 is about sexual grooming. Around 75 per cent of five to 16-year-olds use the Internet. It is sensible that the law catches up with sex offenders who seek to use new technology to abuse children but because Clause 17 relates to a so-called thought offence, the quality of evidence of intent will be crucial to obtaining a conviction. How close will the perpetrator have to get to the child before the police consider that there is enough weight of evidence? Will the child have to agree to meet the potential abuser with the police waiting nearby? If so, is that not putting the child in terrible danger? Can the Minister reassure me?

Clauses 18 to 24 concern abuse of trust and list institutions and definitions. However, the noble Baroness, Lady Blatch, mentioned that they do not include school caretakers, community groups, private businesses or people in church groups—by whom children could be abused. How is that matter to be addressed? Surely the provisions should be more comprehensive.

Clause 82 specifies that a person under 18 charged with a relevant sex offence should be put on the register of sex offenders, albeit for half the set period for an adult. Page 303 of Setting the Boundaries suggests that putting children on the sex offenders register is a "crude and blunt instrument" and that the courts should be allowed greater discretion when doing so. Putting a child on the sex offenders register can put a blight on the whole of its future life. The review recommended that registration should be used only where there was a risk of reoffending or the child was considered to be dangerous. No account seems to have been taken of that recommendation in drafting the Bill.

The solution to all that seems to be that the Bill should deal with those under 18 separately, punishing only behaviour that is aggressive or non-consensual and recognising that aberrant sexual behaviour in a young adolescent requires more effective intervention than that of a prison sentence. To pick up a small point made by the noble and learned Lord, Lord Lloyd of Berwick, I personally think that the Bill misses an opportunity to legalise and regulate prostitution.

Finally, I turn to the matter of sex and people with mental disabilities and learning difficulties. We on these Benches believe that all such people have the fundamental right to enjoy a healthy sex life and to have better protection from abuse than the law has provided up till now. Like the noble Lord, Lord Rix, I welcome the extent to which the Bill improves that situation. But the biggest omission from the Bill is its failure to recognise that other adults can and do undertake work for people with learning disabilities that facilitates them enjoying a healthy and active sex life, as they wish it.

It is unfortunate that the Bill views care workers only as potential offenders and ignores their vital work in assisting learning-disabled people. Care workers are not protected by the Bill, which appears to criminalise any sexual activity with a person who cannot communicate consent. That would leave many such people unable to have a sex life at all. Professionals working in the sector know that communication is carried out by more ways than speech alone, so we need an adequate definition of communication in the Bill to reflect that. No doubt we shall return to that matter later.

It is late and I have asked many questions. I look forward to hearing the Minister's response.

6.57 p.m.

Lord Astor of Hever

My Lords, this has been an excellent and well-informed debate. I thank the Minister for explaining clearly the detail and objectives of the Bill. I also thank all the charities and other interested groups that have sent helpful briefings. As my noble friend Lady Noakes said, we on these Benches agree that new legislation is urgently needed. We welcome the Bill, which will provide much-needed protection for some of the most vulnerable in society from abuse and exploitation.

Many issues have been covered in the debate, and I have time to mention only a few. Several noble Lords referred to Clause 17 and the grooming of children. Sexual predators lurk like spiders on the world-wide web, waiting to catch vulnerable children. The Internet has created new dangers to children as a result of the ease that it allows those who want to abuse children to do so. It is therefore vital that the police are fully resourced to deal with Internet-based crimes.

In our desire to obtain the conviction of those who are guilty, we must ensure that innocent people are not branded as sex offenders on the basis of suspicion or malicious allegations. We need adequately to distinguish between a clearly evil pattern of behaviour intended to secure later sexual activity with a child and harmless, kindly behaviour on the part of the vast majority of adults who have only children's welfare at heart. As the Victoria Climbié case and other child protection deaths have shown, we must look out for our neighbours' children, not be scared even to speak to them for fear of being accused of a paedophile offence.

In a powerful speech, my noble friend Lady Blatch addressed many of the issues relating to abuse of trust offences. I congratulate her on the work that she has done on that and other child protection issues. I am delighted that some of her proposed amendments are included in the Bill.

A number of noble Lords referred to child prostitution. Will the Minister assure the House that those children aged between 16 and 18 involved in prostitution will not be criminalised but treated as victims?

We welcome sections dealing with trafficking into, within and out of the UK for sexual exploitation. To be effective, again the necessary resources must be made available to the police to maintain effective contact with other forces.

I agree with the concerns of many noble Lords including my noble friends Lady Noakes, Lady Blatch and Lord Skelmersdale, on the proposal in Clause 74 effectively to legalise sexual activity in public toilets. Cottaging is offensive to most people, homosexuals included. The noble Lord, Lord Carlile, rightly pointed out that this has nothing to do with prejudice. I think that Ministers have misjudged the public mood. Under the Bill, more public lavatories will become no-go areas for children and families. I have a 12 year-old son. As a parent, I am pleased that the Government will look again at the drafting.

Although much of the Bill and accompanying media interest has focused on provisions relating to children, I wish to highlight the brief but important section which concentrates on protection of vulnerable adults with a learning disability or mental disorder. The noble Lord, Lord Morris of Manchester, another excellent advocate for the disabled, regrets that he is unable to be in the House today to speak on that issue. As several noble Lords have said, the law does not provide people with a learning disability sufficient protection from sexual exploitation. The noble Lord, Lord Rix, pointed out that people with a learning disability may be four times more likely to be sexually abused than the non-disabled population. They have just as much right to justice as those who do not have such disabilities.

Much of the substance of this section is comparable to the Private Member's Bill—not at all amateurish—introduced by the noble Lord, Lord Rix. The noble Lord has continually pressed the Government to come forward with this Bill, and on that I congratulate him.

Despite its laudable intentions, concern remains that in its detail the Bill may fail to provide adequate protection for all vulnerable adults. Conversely, the generality of several of the sections may criminalise sexual activity by people who have a learning disability or mental disorder that is neither abusive nor harmful. We must be careful not to be overly protective. Several noble Lords have made the point that the mentally handicapped should not, on top of their other deprivations, be denied sexual fulfilment. We must ensure that the Act achieves the delicate balancing act of protecting people from both sexual abuse and from legal interference in their private lives.

I hope that noble Lords will forgive my using people with autism spectrum disorders to highlight the potential impact of the Bill. I declare an interest as the father of an autistic daughter. Although some adults with autism are looked after entirely by their parents, care staff and support workers care for many. The nature of autism, as a "hidden" disability, means that people on the spectrum may be perceived as "normal" and their impairments ignored. People at the lower functioning end may not be able to speak which leaves them particularly vulnerable. However, those with Asperger syndrome are in danger of being ignored because they do not fit under the neat title of "learning disability". This group represents a significant number of those needing the protection of the Bill. Yet, while all people with autism may need protection from sexual exploitation, many will be able to engage in non-abusive and satisfying sexual activity.

The core problems with proposals for vulnerable adults centre on issues of capacity—specifically, whether a person with a learning disability or mental disorder has the capacity to consent. That does not equate to a functional test of capacity as set out in the Government's review, Setting the Boundaries. Any test must not focus exclusively on intelligence, but also on the social understanding required to consent to sexual relations. Capacity tests need to take into account the complexity of the process of consent. For example, a person with Asperger syndrome may be able to give consent in some situations, according to mood and the familiarity of the environment, but not in others.

With little clarity on the face of the Bill about the definition of capacity, victims of sexual abuse may face a range of sources of evidence seeking to demonstrate that they do, in fact, have capacity to consent. In the continuing absence of comprehensive mental incapacity legislation, the Government must clarify what criteria will be used to determine whether a plaintiff does indeed lack capacity under the terms of this Bill.

Do the Government intend to issue a code of practice setting out the procedure for determining capacity to consent and dealing with the practical administration of the test? If so, what consultation process do the Government propose to undertake to ensure that the test of capacity is set at the right level?

The proposed new offence to protect people with a learning disability or mental disorder from inducements, threats or deception to engage in sexual activity is welcome. People with autism may be particularly vulnerable to persuasion or deception. By creating the new offence there will be no need for a victim in this situation to demonstrate their ability, or otherwise, to consent to sexual activity.

Similarly, we wholeheartedly support the principle of criminalising any sexual relations between a care worker and a vulnerable adult in their care. However, concern remains that this offence will be undermined by the defence of ignorance as to the existence of a learning disability or mental disorder. Given the gravity of acts that may be tried under this offence, some organisations have advocated a higher maximum sentence than the suggested seven years.

The current definition of care worker clearly includes volunteers and paid staff performing the majority of duties in a care setting. However, the fact that only those in, regular face to face contact", with service users can be prosecuted under this offence may mean that some auxiliary staff can and will escape prosecution. We should like to remove the word "regular" in Clause 48 to include all staff who may come into contact with a person in a care setting. This is particularly important with the growing use of casual agency staff by social care providers.

In addition, the Government must clarify a point first raised by my noble friend Lady Anelay in the previous debate on this subject. What will happen in a situation in which two people with a learning disability or mental disorder, who may be shown to lack capacity to give informed consent, are engaged in a mutually satisfying sexual relationship? The Home Office has indicated that in such instances it is likely that the law would not be applied. Why, therefore, have the Government not followed the Law Commission's recommendation that there should be criminal culpability only where there was evidence of abuse or exploitation?

The Bill goes a long way towards providing the long-overdue protection from sexual abuse that vulnerable adults and children need. But, as the noble Lord, Lord Campbell-Savours, said, many areas of it need careful examination. I look forward to helping constructively and carefully to improve the Bill before it leaves this House.

7.10 p.m.

Lord Falconer of Thoroton

My Lords, I join the noble Lord, Lord Astor of Hever, in saying what a very good debate it has been. I welcome the fact that every Peer, except the noble and learned Lord, Lord Ackner, welcomed some part of the Bill. Some welcomed all of it. I am very grateful for the fact that the vast majority—

Lord Ackner

My Lords, will the noble Lord allow me to intervene? I started by welcoming those parts that dealt with children and protected them from paedophiles.

Lord Falconer of Thoroton

My Lords, everybody welcomed the Bill. We will approach it constructively. I particularly welcome noble Lords who indicated a wish to help to make the Bill as good as possible. In many respects we share many of the objectives and outcomes sought. The issues look much more how we sought to achieve mutually shared outcomes, rather than other substantial policy differences between us as to how it may be done. While recognising that it is 7.20 p.m. on a Thursday, I shall deal with as many points as possible in the time available.

The noble Baroness, Lady Noakes, asked us to monitor the effect of the new formulation of rape and other offences. Of course we will. On grooming, she asked whether we had gone too far. She drew attention to the fact that one would have to prove the intention to meet the child with the purpose of committing some sort of illegal sexual activity. She rightly said that the proof of that intent would be pivotal in proving a grooming case. She is absolutely right. We have focused on what we think the essence of the offence is: contacting, or having a relationship with, a child with a view to committing an illegal sexual act. That is precisely how the offence is framed. Of course, we will listen if it can be more focused. Subject to the more detailed points raised by other noble Lords, we think that we have got it right, but we are more than happy to debate it in full during the passage of the Bill through the House.

The noble Baroness raised an inconsistency, giving the example that in Clause 11 the maximum sentence for inciting a child to engage in sexual activity was 14 years, whereas the maximum sentence for an identical offence involving a mentally impaired person was life imprisonment. She rightly asked whether there was an inconsistency in that regard. We need to look to see whether that is the case.

The noble Baroness raised a point about over-criminalisation, which many noble Lords mentioned. She gave two examples: a consensual relationship between an 18 year-old and a 15 year-old and a consensual relationship which is not harmful between two people with a learning disability. We are keen to ensure that proper protection be given both to children and people with learning disabilities or mental impairment. That will mean, as it does now in relation to current offences, that one must criminalise certain activities that, on the facts of a particular case, would never merit a prosecution because it would not be in the public interest for there to be one. But one must balance the ability of the CPS to say no to a prosecution against the fact that in certain cases, if the activity is not an offence in that form, terrible crimes may go unprosecuted.

The obvious example is a case where a 12 year-old and a 14 year-old have a relationship of such a nature that it would be wholly inappropriate to prosecute. But, equally, there may be cases in which a 15 year-old boy is brutalising someone under 13, or, worse, a 25 year-old is doing the same thing. We do not want a situation where the law requires that a lack of consent is proved in the case. As noble Lords all around the House have said, it is a delicate balance. We believe that we have got the delicate balance right. But it is that sort of balance that we need to examine as the Bill goes through the House.

Equally, as regards the relationship between two people suffering from mental impairment, we would like to make it clear—picking up the point made by the noble Lord, Lord Thomas of Gresford—that there is absolutely no intention to lead to criminal prosecution where there is a happy sexual relationship taking place. We are absolutely determined not to stop there being a legitimate sex life in those circumstances. But, again, we recognise the problems of proof which exist where abuse is occurring in relation to someone suffering from mental impairment. If there are no provisions for that one could never begin a prosecution. It is a balance which has to be struck.

The noble Baroness, Lady Noakes, made a number of points about the sex in public offence, which is Clause 74 of the Bill. There was a widespread feeling that it was important that sexual activity in public lavatories should remain criminal. It does. Clause 74 creates an offence additional to the current public order statutory and common law offences which exist to criminalise the kind of conduct referred to in public lavatories. We accept that we need to look again at the wording and its relationship with existing offences in order to make sure that the message, for which there was wide agreement in the House, is clearly sent through the Bill.

I move to a point of principle which arose. I am not sure that it is right to describe it as such. I refer to the issue of reasonableness as regards rape and related offences. The noble Lord, Lord Thomas of Gresford, supported by the noble and learned Lords, Lord Lloyd of Berwick and Lord Ackner, and by a number of other noble Lords throughout the House, took the view that we should not include reasonableness in relation to the offence of rape.

In effect, and as a matter of principle and practicality, it was being said that it was a mistake. The principle is that it is wrong to convict somebody of the offence of rape if they unreasonably, but genuinely mistakenly, believe that the victim consented. The point of principle needs to be addressed. If one allows the defence of honest but unreasonable belief in consent, it has the following consequences. It implicitly authorises the assumption of consent by the defendant, irrespective of the views of the victim. It encourages people to adhere to myths about sexual behaviour.

The mistaken belief will arise in a situation where it is easy to seek consent and the cost to the victim of forced penetration is very high. It is not unfair to say to any person that they should take care that their partner is consenting and to be at risk if they do not take that care. There is no justice in a situation whereby a man or a woman who has been raped because he or she did not consent sees an assailant go free because of a belief system that society as a whole would find unreasonable. It is a policy issue.

With the greatest respect to the noble and learned Lord, Lord Ackner, it is a point which should be addressed in Parliament. It is not a matter simply for the lawyers to look at. There is a fundamental issue to be addressed. We have taken the view that it is right in principle that the reasonableness element should come into the case for the reasons that we have given. We believe as well that juries will be perfectly able to understand that element of reasonableness defined in Clause 1 of the Bill.

Lord Thomas of Gresford

My Lords, there is absolutely no proof that a jury has ever acquitted anybody whose defence has been "I had a mistaken belief and I accept that it was unreasonable". I have never come across a case where that kind of defence has been raised. In the experience of all the lawyers present, I would be very surprised that anybody has ever found an acquittal based on that alone.

Lord Falconer of Thoroton

My Lords, should that be so, I am surprised that the noble Lord is not encouraging the law to reflect the practice. In those circumstances, it is wrong that the law should not reflect how juries think. We believe as a matter of principle that this should be the law. It is entirely wrong to say that this is not a political issue and should not be debated politically.

I was gratified that the noble Baroness, Lady Noakes, on behalf of the Opposition, did not say that they would raise an issue in relation to this. I accept that she raised points about workability—particularly in relation to Clause 78—but I did not understand her to say that the Conservative Party objected to this change. I understand that the Liberal Democrats, however, do object to the change.

The noble Lord, Lord Thomas of Gresford, and others have suggested, perhaps pragmatically, that, in order to obtain more convictions, there perhaps should be a lesser offence than rape to deal with what has been described as the "date rape" kind of case. It is said that justice would then be done because juries would be more willing to convict in such cases.

Lord Thomas of Gresford

My Lords, I am sorry to interrupt. But also defendants would plead guilty and the victims would not have to give evidence. That is a very important consideration.

Lord Falconer of Thoroton

My Lords, it is said that they would. Let us address that point as a matter of principle. Setting the Boundaries contained evidence from victim and survivor groups in relation to rape. Everyone accepts that all victims are deeply affected by rape. In certain cases there was greater victimisation in rapes where there was some kind of pre-existing relationship between the defendant and the victim. Obviously stranger rape is truly appalling, but relationship rape, according to the evidence given to the steering group in Setting the Boundaries, raises additional issues of betrayal of trust and the victim being seen in certain respects as being responsible for what has happened. The steering group was told by those who counsel victims that those raped by friends or family often find it much harder to recover, and may take longer to do so in certain cases.

So it is difficult to see, as a matter of principle, that one should treat those kinds of cases as less serious offences. As a matter of principle we do not believe that it is right to have a lesser offence. As a matter of principle we believe it is right to have a reasonableness test because it would reflect a much better policy conclusion. We believe that a reasonableness test would be perfectly workable.

As to rebuttal of presumption, the noble Lord, Lord Thomas of Gresford, and other noble Lords who dealt with this issue, were again not putting it forward as a point of principle but primarily as a question of workability: could a jury be adequately directed with a sufficient degree of clarity? We shall have to look at that issue in Committee.

Let me give one example. In essence, in a case where, immediately before the relevant act of sexual intercourse which constitutes the rape, the defendant has threatened violence to the victim, we are saying that in those circumstances the defendant has to call some evidence to show that there was consent; and he has got to prove whether or not he reasonably believed the victim was consenting in those circumstances. That is simple, straightforward and utterly reflects the common-sense and justice of the position.

The noble Baroness, Lady Gould of Potternewton, raised a number of points. Let me deal with the three main ones. First, the question of advisers. She expressed the concern, as did a number of noble Lords, that advisers giving advice, particularly to young people who may be committing offences, should not be criminalised by the Bill. She is absolutely right. In accordance with the Gillick principle, the Government take the view that any adviser who is giving advice bona fide in the interests of the child cannot be guilty of aiding and abetting. I am more than happy to state that and to give the assurances sought. The noble Baroness has told me, both in the House and privately, that a number of agencies are worried about that.

My noble friend also asked whether the provisions on trafficking protect all children. There is no age limit, so they cover children and adults. Going back to the issue of over-criminalisation, my noble friend Lady Jay also asked whether we should be thinking about child protection in some cases in which what would otherwise have occurred would be a crime. Yes, we should. There will be many cases in which we will not prosecute, but this Bill creates criminal offences. It is not appropriate in this Bill to go through the detail of how the many agencies involved should approach an individual case in making a decision about whether to prosecute.

The noble Baroness, Lady Blatch, raised a number of issues about grooming, which I shall deal with quickly. She worried that the grooming offence was directed only at the Internet. She implied, rightly, that grooming often takes place elsewhere. We have framed the offence so that it is not dependent on it occurring on the Internet. It can occur through telephone, written or text communication or face-to-face meetings. She is wrong to worry that we have not dealt with offline as well as online situations.

On abuse of trust, the noble Baroness raised the question of scout troops or ancillary staff. We are creating a wide-ranging offence. We think it is right to restrict it to people who have a care or training function in relation to the people who may be victimised. We think it would be going too far to include a janitor or someone else who works in a school but is not a teacher. I understand the noble Baroness's argument, but a line has to be drawn somewhere and we think that is the right place. Part-time teachers or supply teachers could be covered if they regularly taught the victim. Teaching them for just one day would not be regular enough, but doing so for a whole term probably could be. It is a question of fact in every case. We need to look at the issue of part-time pupils.

Baroness Blatch

My Lords, we shall certainly return to the final points that the noble and learned Lord has just made. Is he saying that scout leaders do not fall into that category?

lord Falconer of Thoroton

My Lords, I do not think that they do. I shall come back to the issue on another occasion, but the definition covers people such as teachers.

The noble Lord, Lord Rix, raised a number of issues about mental impairment cases. He and others raised particular concerns about Clause 33(1), for example, suggesting that a provision that says you have to know that the victim was suffering from mental impairment to be guilty risks giving people a way of getting out of the offence. Again, a balance has to be struck. In some cases, the position will be utterly apparent. In other cases, particularly if the condition is such that behaviour may change from time to time, the true position might not be apparent. Some of the offences involve a maximum of life imprisonment, so some balance must be struck to ensure that an injustice is not done. We think we have the right balance there.

I saw the noble Lord, Lord Rix, together with representatives of a number of voluntary sector organisations connected with helping people with mental impairments. He forcefully and effectively made the point—which he repeated in the House this morning—that the care worker provision should not be regarded as a residual provision when inducement, threats or rape cannot be proved. That is just the sort of case in which abuse will occur. We then have to ask whether it is right to have only seven years as a maximum penalty for that when there are higher penalties for other offences. We need to look at that.

The noble Lord, Lord Alli, asked about a power to confiscate passports. I have spoken to the police about that. They do not seek such a power. The power to seek an order to prevent somebody going abroad, upon notification being given, is thought to be adequate in that respect. Yes, the British police will tell foreign police when someone is going abroad. That is done as a matter of course—or depending on the risk. Some noble Lords asked whether the eight-day notification of a person going on holiday should be reduced. We have said that it will be; the Bill gives a power to make regulations in that regard, and we will shortly give our decision on the period. First, we need to take advice on what is proportionate.

The noble Lord, Lord Skelmersdale, raised various points. First, sex with a corpse is a genuinely new offence, whereas sex with animals was already an offence. He said that it was odd that when a rape was committed under the influence of illegally administered drugs, it would only get 10 years, whereas the rape by itself could get a maximum penalty of life. In fact, the offence that carries the maximum 10 years is the administration of the drug. That is where the 10 years comes in.

The noble Lord asked us to distinguish between those cases involving people with a mental impairment when they are overborne and those who do not have the capacity to consent. We have done that in the Bill, drawing a distinction between those unable to refuse and those who are overborne in various ways. The definition comes in a large number of places, but I suggest that the noble Lord looks at the bottom of page 15 and the top of page 16 of the Bill. He asked about the test that we are using; we have not gone for the Law Commission's test, but for something similar.

I shall write to the noble Lord, Lord Carlile, on the meaning of "at least". I take issue with him for his views on reasonableness, for reasons that I have already given. However, I agree that when standard directions are prepared when the Bill becomes law, it will be important to ensure that the JSB is involved in helping us to prepare those drafts.

The noble Baroness, Lady Thornton, asked about an ability to stop a meeting that occurs outside England and Wales, in relation to the grooming offence. In some cases it will be an offence outside England and Wales, but it would obviously be difficult to enforce, as it would be a matter for the local enforcment authorites rather than ours.

The noble Baroness also referred to the difference between commercial and non-commercial exploitation in relation to child pornography, because the words "for gain" are used. Again, that is there to strike the balance between something that one would not want to criminalise, because it had been done in a non-criminal way, and something that one would want to criminalise because it was done in a criminal way.

The noble Baroness, Lady Gibson, referred to Clause 14 and asked whether there should be a reference to treatment. As we are setting out a series of criminal offences, we do not think that such a reference is appropriate in the Bill, although it is plainly a matter that should be considered.

The noble Lord, Lord Hylton, also referred to the eight-day period, which I have already spoken on. In relation to trafficking, he asked why we could not have a separate definition of children. Everybody is covered as regards criminal offences in relation to trafficking. The only reason for putting in a separate definition of children would be to have a higher maximum penalty in relation to trafficking children. The penalty in the Bill is 14 years maximum, which is the highest determinate sentence that one can get. I am not sure that it is necessary to go as far as the noble Lord suggests. I shall write to him on the other specific points on which he was kind enough to write to me.

The noble Lord, Lord Campbell-Savours, took a fundamental point of principle and said that one should be incredibly careful to ensure that there were not wrongful convictions in relation to rape and other sexual crimes. That is absolutely right. One has to trust the jury to some extent, and these are difficult cases involving difficult issues for juries to resolve. We do not believe that anything that we are doing will make the risk of wrongful conviction any higher than it is. We do not think that putting in reasonableness or the rebuttal of presumption in any way increases the risk of a wrong conviction. One should bear in mind that the reasonableness requirement that we are putting in does not detract from the basic proposition that one is guilty of the offence of rape only if, in fact, the victim did not consent. If he or she did consent, the question of reasonableness does not come into it: there is no offence of rape.

The noble and learned Lord, Lord Ackner, said that the administration of justice was being politicised. He regarded it as offensive to describe the law as archaic, incoherent and discriminatory. I described the law as archaic because, as was said in the course of the debate, one has to prove that one is a mental defective to get protection under the current law. I described it as incoherent because it has grown up over a period of time in different statutes with the result that different age groups attract different protections not on the basis of coherence but on the basis of the history of the law. I described it as discriminatory because it treats male homosexuals in a different way from everyone else. That is why I used those three adjectives. I did not intend to be offensive; I considered that those adjectives were accurate.

The noble and learned Lord, Lord Ackner, kept using the word "suppressed" in relation to the report of Mrs Justice Heilbron in the late 1970s and the report of the Criminal Law Revision Committee. As the noble and learned Lord rightly said, we published a detailed review of sexual offences, Setting the Boundaries. It did not refer to the previous reports that had been written on the matter; it set out an argued and coherent case as to why we wanted to change the law. The noble and learned Lord did not really deal with the substance of the changes.

The noble Lord, Lord Monson, raised a number of points and focused primarily on the interrelationship between Clauses 71 and 70, but also referred to a number of clauses which he commended. It is not worthwhile commenting further on Clause 74 as I have indicated the Government's position on that.

The noble Earl, Lord Listowel, raised the point that a large number of noble Lords mentioned; namely, that we should be careful not to criminalise children in particular when the criminal law is not appropriate. I fully accept the principle underlying his remarks and indicated where the balance must be struck.

The noble and learned Lord, Lord Lloyd of Berwick, said that we should not rely on the concept of reasonableness. For the reasons that I have mentioned I say with the greatest respect to the noble and learned Lord that he is wrong on that matter. We have set out in detail why we intend to change the law in that respect.

I believe that I have dealt with the points raised by my noble friend Lady Jay of Paddington. My noble friend Lord Adebowale mentioned care workers and Clause 33. He asked about the defence that someone could claim not to know that the victim suffered from a mental impairment. I believe that I have dealt with that point.

The noble Baroness, Lady Walmsley, asked me a large number of questions to which I shall respond in writing. However, I should mention two that have not been touched upon. First, as regards anonymity for the defendant in sex crime cases, our current view is that we do not think that the defendant should have anonymity as that would signal that we regarded that crime as being in a different category from other crimes. Where one is wrongly charged with murder, one's reputation is obviously severely or potentially damaged by that, but one is not given the right to anonymity. As my right honourable friend the Home Secretary said, he is prepared to listen to argument on that matter. Our current view is that there should not be anonymity for defendants in sex crime cases but that matter can be debated.

I turn to the important issue of Northern Ireland. Northern Ireland will conduct its own review of sexual offences. To the extent that any of the changes that we propose are not inconsistent with the current underlying law in Northern Ireland they will apply to Northern Ireland, but otherwise they will not until that review has been conducted.

A significant number of issues are involved in this matter. However, as I said at the beginning of my remarks, this is an area where we are all seeking to achieve the same outcomes. I very much look forward to the debates in the weeks and months to come.

On Question, Bill read a second time.