HL Deb 02 June 2003 vol 648 cc1049-114

Report received.

Lord Campbell of Alloway

moved Amendment No. 1: Before Clause 1, insert the following new clause—

"DEFENCE OF HONEST BELIEF AS TO CONSENT The provisions of this Act as concerns England and Wales shall not abrogate the jurisdiction of the judiciary to entertain the defence of honest but mistaken belief as to consent as judicially established, and to ensure that an accused who had no guilty mind should not be convicted.

The noble Lord said: My Lords, I am grateful to the noble and learned Lord, Lord Ackner, for his support. We were on the western circuit together after the war, conducting at times this very sort of case on assize or a Court of Session long before the defence asserted by the amendment had been established by the Appellate Committee of this House in 1975.

I am particularly fortified by the presence of the noble and learned Lord, Lord Lloyd of Berwick, who spoke with authority on Second Reading and in Committee when there was a substantial division of opinion. On this matter, one defers—at least I do—to the expertise of noble and learned Lords and to the common sense of this House as to fair play.

If the amendment were to commend itself, it would slight the structure of seven clauses of the Bill. It would conflict with the amendments to Clauses 1, 3, 5 and 7, as implemented by Clauses 77 to 79, tabled by the noble and learned Lord, Lord Falconer of Thoroton, and others. Your Lordships may consider it appropriate at all events that the amendment be debated in principle at the outset to save the tedium of repetition and to try to clear the day.

As to when this conflict of principle, for that is what it is, will be resolved, one defers to the sense of this House. The fundamental objection to the abolition of the defence of honest belief as to consent has not been removed by any of the amendments—especially those tabled by the noble and learned Lord, Lord Falconer of Thoroton.

Those amendments substitute an abstract reasonable expectation of doubt for the actual guilty intent of the accused. The decisions of the Appellate Committee of your Lordships' House established and applied this defence, which will be considered later, but only as to substance. Those decisions reflected our indigenous concepts of the due and fair administration of justice with which all your Lordships are familiar, as applied throughout the United Kingdom.

It is said that this defence, judicially established at the highest, has to be set aside to bolster up convictions only in England and Wales. On objective examination, no case has yet been made for the abolition of this defence. There are causes for the low conviction rate, which have been spoken to by the noble Baroness, Lady Mallalieu, the noble and learned Lord, Lord Ackner, and others, whose speeches in Committee have not been called in question. Apart from enhancing the risk of erroneous convictions, tinkering with the presumption of innocence and tampering with juries as arbiters of the actual guilty intent of the accused, abolition is not justified. It would constitute an unwarranted trespass of the executive on the functions of the judiciary over which this House stands as sole guardian.

The common sense, simple, straightforward question to be resolved by your Lordships is the justification for the abolition of that defence. It may not be pre-empted as a matter of convenience to enable the Government to have their business, or to even up the odds on the rails at the "tough on crime" selling plate. Your Lordships may either support or reject clauses and amendments whose effect will abolish this defence.

As to the causes of the low conviction rate, I refer in particular to the failure of the Crown Prosecution Service to instruct counsel with appropriate experience to advise on the prospects of success before settling the indictment. There is a failure to advise on evidence or to have the conduct of the case in court as was once the practice, as most noble Lords will remember from their younger days. Now a case goes to trial on a sort of in-house assessment as to whether it is credible lest criticism for an action engenders unwelcome publicity.

As to the salient issues, why was this defence judicially established? How has it been judicially applied? Why should it be abolished? Are the consequences of abolition acceptable? Should the scales be weighted against acquittal in favour of conviction—the collateral damage of unintended consequence? Have the Government made out a case?

As to the first question, the defence, as explained by the noble and learned Lord, Lord Lloyd of Berwick, was established in 1975 by the Appellate Committee to seek to ensure that the accused who had no guilty mind should not be convicted. It was applied by another decision of the Appellate Committee in 1999 on indecent assault in which the noble and learned Lord, Lord Bingham of Cornhill, gave the leading opinion. It was decided unanimously that belief, if honest, did not have to be reasonable, albeit unreasonableness would cast doubt on whether the belief was genuine.

In February this year, the High Court of Justiciary in Scotland decided that this defence was separate and distinct, and to be put to the jury as such: the Crown has to satisfy the jury beyond reasonable doubt either that the belief was not genuine or that there was no such belief.

Why should those decisions be set aside? Is not the burden on the Government to justify setting aside by some reasoned argument?

As to the consequences of abolition, Clauses 1, 3, 5 and 7, whether or not they are amended as proposed, remove the presumption of innocence and, as implemented by Clauses 77 to 79, shift the burden of proof to the defence to show that in all the circumstances the accused could not by an abstract standard of reasonableness have been expected to have a doubt as to consent. Even if he honestly believed that there was consent, the jury may not acquit in such a case. That is a complex direction to be given to the jury that sets aside the decisions of the Appellate Committee in your Lordships' House and the High Court of Justiciary—a complexity of direction, compounded with compulsory presumptions of non-consent. Again, is this not but a Setting the Boundaries placebo beyond the reach of justice as administered generally throughout the kingdoms? Is the reason given for that wholly exceptional proposal justifiable?

As to the collateral damage of unintended consequences, that could well have been foreseen, but I do not suggest that it was. It is the enhancement of the risk of erroneous conviction, spoken to by the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Campbell-Savours, on Second Reading and in Committee. I am delighted to see that they are both in their places.

Since then, there has been the Catlin case referred to in The Times of 11th April in which, after seven years' imprisonment, conviction for rape on a false accusation was quashed because the Crown Prosecution Service had failed to disclose evidence that could have cleared the accused. Who are the true victims of a rape trial: those whose evidence is not accepted by the jury or those erroneously convicted of false accusations, whose lives and livelihood are destroyed?

Have the Government made out their case? I believe that I may have spoken for some noble Lords on all sides of the House, lest even-handed justice be slighted by inhibiting the defence to secure more convictions. I beg to move.

3.15 p.m.

Lord Ackner

My Lords, I support the amendment. I put my name down to do so because it seems to me to isolate the very issue that runs through so many clauses and has produced so many varying amendments. It seeks to establish in clear terms between the two contests—should a defendant only be convicted if he realised that there was no consent; or should he be convicted if he made a mistake about that and should not have made that mistake? The matter has frequently been considered, but it arose from the Morgan case.

I shall make only a brief reference to the career of the Morgan case. After the decision, which required the proof of the guilty mind of the accused—that he did not honestly believe, a subjective test—a committee was set up especially to consider the validity of that decision because of some public outcry against it. That committee, the Heilbron committee, considered the matter in great detail and concluded that the law as adumbrated was sound. It was thereafter re-enacted, but with the additional proposition that the jury should take into account in considering the validity of the honest belief all matters that related to the reasonableness of what had happened.

That has now remained in existence for several decades without challenge. The Law Commission was invited to consider the matter some time ago. Properly, the Law Commission said that the choice between whether the test should be a subjective one—the guilty mind of the accused—or an objective one—what a reasonable person would consider appropriate—was essentially a matter of policy, having set out the arguments pro and con. It stated: The law, as stated … accords with the principles upon which criminal liability for serious crimes has habitually been fixed in England and Wales ('the Golden Thread'). Where it is sought to derogate from this principle and to seek to establish criminal liability for rape on some or other degree of negligence, our view, as a principle of law reform, is that it must be demonstrated by the proponents of such a departure that it is necessary to remove a serious shortcoming in the way the law is applied in the courts. There is no such evidence. Accordingly, on that ground, we do not support that proposed change".

That is strong stuff. It was saying: if you are going to depart from established principle, you must be able to justify that. You cannot justify it by protest or pressure groups, however well-meaning; you must have the material.

The arguments against altering were set out by the Law Commission with commendable succinctness. It stated: (1) A person should not be guilty of a serious criminal offence on the basis of strict liability or on the basis of negligence. Liability at this level of seriousness should be based only on intent on recklessness. (2) The burden is on those who argue for a change to an objective basis to demonstrate that persons are being inappropriately acquitted by running a bogus 'unreasonable belief defence. No such evidence has been produced. It appears that Morgan is not, in practice, a problem. (3) If the availability of the defence is based upon 'reasonableness', then whose reasonableness is being applied? Is it that of the defendant, the members of the jury, the person on the Clapham omnibus? The concept of 'reasonableness' has been a source of endless, and continuing, difficulty in relation to provocation in homicide … Any proposal to reform the law should not be lightly made which carries the risk of making it more complex and unpredictable. (4) This difficulty would be even more pronounced if, instead of a test of reasonableness, the test were to be akin to 'gross negligence', as a further level of complexity would be involved. (5) A modern jury, properly directed on the question whether the person did or did not have such a belief, will be well able to root out the true from the bogus defence of belief in consent. Anyway, it is seldom, if ever, that a defendant would put forward a defence that he had such a belief for which he acknowledged there were no reasonable grounds. (6) The rate of conviction for rape is … alarmingly low. Juries appear already to be uncomfortable in convicting men of a very serious offence in circumstances which appear to them to be ambiguous. If there were a rule of law that, however honest a belief, the jury had no option but to convict in the absence of reasonable grounds for it, a perception of unfairness might arise, which might result in fewer convictions than were the jury left themselves to judge whether an assertion of belief is genuine or just a fanciful story unworthy of belief".

On the first day in Committee, I sought to summarise the reasons why the conviction rate was low. I do not wish to go through all of those reasons again—noble Lords can read them in Hansard. They include the fact that the prosecution some time ago was penny-pinching and paid less to prosecuting counsel than was paid, under legal aid, to defence counsel, with the result that counsel rejected the prosecution briefs. My arguments varied from that to ill- preparation, to the absence of the need in practice to find some corroborative evidence, to bogus allegations for one reason or another and, lastly, to the law of unintended consequences. That involved the argument that in order to assist vulnerable witnesses it has been made permissible merely to read their statements, so the jury has no chance to see and evaluate the credit-worthiness of the complainant although it has the defendant's sworn evidence.

In a sentence—

3.30 p.m.

Lord Campbell-Savours

My Lords, I am sorry to interrupt the noble and learned Lord but he has missed one very good reason that he gave in his contributions at Second Reading and in Committee. It was that the attitude of the jury to a penalty when it knew that if it was to convict on what it viewed as a lesser offence it would not be prepared to see a maximum penalty imposed.

Lord Ackner

Yes, my Lords, I pointed out that the defendant, having given his evidence in a seemingly sensible way, is supported at the back of the court by a wife weeping and two young children. The jury knows, because it has been hammered home so hard, that rape is a terribly serious case and that the starting rate is five years or thereabouts. I have no doubt that some will say that that is too long. They may be quite wrong, but that may be their sense. In all the circumstances, when the onus of proof is so high, the jury must be satisfied that it is sure. It is very easy for it to say, "We are not sure", and thus acquit.

For the reasons that I have set out, I strongly support the amendment.

Lord Lloyd of Berwick

My Lords, I regret to say that on this occasion I find it impossible to support the amendment of the noble Lord, Lord Campbell of Alloway, not for any want of good will—I have masses of good will—but for technical reasons. If Clause 1 is amended by leaving out subsection (3), which is the purpose of the next amendment of the noble Lord, Lord Campbell—Amendment No. 4—his new clause would simply be unnecessary. However, if Clause 1(3) remains as it is or is amended—that is proposed by the noble Lord, Lord Thomas of Gresford, and now by the Minister—the new clause would be wholly contradictory to what would then be subsection (3). To have contradictory provisions of that kind in the same piece of legislation would be a recipe for disaster. It is surely better first to see what view we will take of Amendment No. 2, which is the amendment of the noble Lord, Lord Thomas of Gresford, and Amendment No. 6, which is the Minister's amendment, before we make any further progress on this amendment.

Lord Thomas of Gresford

My Lords, the clause as drafted by the Government retains a subjective element. It is a defence that one had an honest and mistaken belief in consent, but to that is added the objective consideration that that belief be reasonable. We believe with the Government that a defendant should no longer even in theory be able to rely on an unreasonable belief. A balance must be struck between the interests of the complainant, who has suffered penetration without his or her consent—the first two elements of the offence of rape—and the interests of the perpetrator with regard to the third element; that is, his belief, or lack of belief, in the complainant's consent.

On these Benches, we consider that it is unacceptable that a defendant should rely on a belief that is unreasonable and that he should be allowed to say, "I have an honest but mistaken and, I now recognise, entirely daft belief that the lady in question consented". She remains raped. It is wrong that he should walk away because of an unreasonable belief. However, we believe that it is for the jury to consider the reasonableness of his belief, having regard not to some hypothetical anthropormorphised reasonable man—the man on the Clapham omnibus—but to the reasonable conduct of the defendant and to all the surrounding circumstances of the actual offence. We believe that it is perfectly possible for a jury to come to sensible conclusions about what is or is not a reasonable belief.

I draw a parallel with the fact that the defence of reasonable self-defence is very well known. I have no doubt that Mr Tony Martin had an honest but mistaken belief that he was defending himself when he shot an intruder in the back. He thought then and, according to the press, still thinks today that he acted reasonably. A number of people in this country appear to agree with him. However, a jury objectively said that that was unreasonable. It was perfectly capable of coming to that conclusion, and we believe that juries arc perfectly capable of coming to a conclusion as to whether an honest but mistaken belief is reasonable or not. We oppose the amendment.

Baroness Kennedy of The Shaws

My Lords, I support what the noble Lord, Lord Thomas of Gresford, said. The issue is not, as the noble and learned Lord, Lord Ackner, described it, simply the Government's response to lobbying by interest groups. It is about the interests of women who at times believe that the law has not reflected their world view. Happily, over the past 10 years there has been a recognition of the ways in which the law has failed women because it was essentially created from a male perspective. There are certain areas of the law that show us that in a very pronounced way. One of those areas relates to domestic violence and the other relates to rape. That is the reason; it involves more than simply a response to lobbying groups. It involves any group, whether women in church groups, women and students, black women or white women. Women up and down the country feel failed by the rape laws as they stand.

The Government are seeking to find a way of gaining the confidence of half of the public that the law can work for them. When a man claims that he has a belief, that it might have been unreasonable but that it was honest, women up and down the country find that unacceptable, and we must listen to them. We seem to he seeking a thread which in some ways will exclude their world view.

As a practitioner, I know—it has been stated in previous debates—that the Morgan defence is rarely used. I, like others, have never heard anyone in the courtroom say, "She was saying no. She was screaming her head off. She was fighting and beating me. but I thought she liked it that way and so I proceeded to have sexual intercourse with her." That is not what is said.

Juries faced with a man saying "I didn't force her to have sexual intercourse" and a woman saying "Yes, he did" listen to the judge, who invariably directs the jury on Morgan even if it has not been raised.

The judge says to the jury, "Members of the jury, if this man honestly believes she was consenting, then he has a defence". It is that formula in the judge's summing up which leaves juries saying, "Even though he is not saying it, maybe he did honestly believe it although she was saying no". Therefore, on the balance between the two, they use it to acquit men who are clearly guilty of the alleged offence.

I found extraordinary, although I do not count this against him, that the noble Viscount, Lord Bledisloe, should have chosen an unfortunate but telling example from which to draw the principle. He said: If I am accused of stealing your property, it is a defence if I show an honest belief that I had a claim of right to that property. That is the general test of the criminal law". [Official Report, 31/3/03; col. 1069.]

And, of course, it is the general test of the criminal law. But what is extraordinary is applying a principle that relates to property to our personal and intimate relationships as human beings. I think we can look for other kinds of principle.

The question is whether the protection of human beings, not property, from a profoundly damaging experience might justify higher expectations in human behaviour and greater care and respect for the humanity of others. We are really talking about human rights. Human rights are not just about things that happen in the third world; they are about our relationships with each other.

Is the principle drawing on the experience of women as well as men? I am glad that the noble and learned Lord, Lord Lloyd of Berwick, one of our most eminent, retired judges, is here today. Speaking about rape, the noble and learned Lord sensitively enunciated its kernel when he said that, forcible penetration of the vagina is a corruption of the deepest and tenderest of emotions of which human beings are capable". [Official Report, 31/3/03; col. 1051.]

I am sure homosexuals do not feel any differently, even if their form of intimacy is different.

Forcing intercourse upon someone and securing their engagement in sexual activity through fear is a corruption of love-making. Although sometimes people may do it casually and sometimes without profound emotions attached to it, love-making remains for most of us an expression of our most profound emotions.

That is why sexual offences are so lasting in the damage they do to life. They contaminate what is precious. That is why sexual offences are different from property offences and why, when we have offences involving an abuse of intimacy and our most intimate and precious feelings, we may look for ways of dealing with them that may be different.

That does not mean reversing burdens of proof. As noble Lords know, I feel strongly committed to the civil liberties of defendants in the courts. I do not want to see any reneging from the civil liberties that protect defendants accused of serious crimes. I do not want to see the reversing of burdens of proof or any undermining of the standard of proof in criminal cases. I do not want to see accused people having to prove they are innocent. But we should be prohibiting people from being negligent in their disregard for others when it comes to intimate abuse. If human rights mean anything, then we are walking on the terrain of human rights here. That is why this is important; it is not an issue to be left to lawyering or to the technocrat in the legal world. We are seeking to do something about what is wrong in the law. The fact that so few cases ever lead to conviction would mean that between 93 and 97 per cent of women were making this up. Of course that is not so. We know that men walk free having abused women and children. No doubt it happens in homosexual relationships too.

The reason for trying to make things better is that the law, as it is, is failing. I urge everyone to recognise the effort being made by the Government to put it right.

3.45 p.m.

Baroness Noakes

My Lords, it may help the House if I make clear the position of these Benches. In doing so I pay tribute to my noble friend Lord Campbell of Alloway for his tireless work on this Bill and the dedication he has shown in drafting amendments. However, we cannot support his amendment.

From the outset, we have been open to the possibility that the formulation of the existing law of rape should be changed to one involving reasonableness. Our caveats have been that any change has to be workable and effective. That is what many of our debates have centred upon.

My noble friend's amendment is an attempt to keep the law as it is. That is not something we find attractive. We think that the conviction rate for rape is such a serious issue that we should look to change the law. I was interested to hear the noble Baroness, Lady Kennedy, supporting that position.

We will be looking again at the Government's newest attempt in Clause 1(3) to deal with reasonableness, and at the version of the noble Lord, Lord Thomas of Gresford. We can debate the issues and detail at that point. We believe this House would spend its time better by finding an effective way towards a good reasonableness test than by trying to keep the law as it is.

Earl Russell

My Lords, the noble Baroness, Lady Kennedy, made an extremely powerful and interesting speech. She is undoubtedly right that there is a balance here that needs to be redressed. Men are congenital optimists in these matters. Being congenital optimists, from time to time our congenital optimism needs to be restrained.

A belief in consent may be based only on such optimism reached in a mood of unbounded wishful thinking. Therefore, one cannot have a test purely of abstract belief in consent. The Government are right. There is a balance that needs to be redressed. The question is whether the Government's attempt at redressing the balance is right.

Clause 1(3) of the Bill as it stands seems to set a hurdle that no one could successively get over. I doubt whether there is a perfect resolution. When looking at conviction rates, I do not need to tell the noble Baroness, Lady Kennedy, that this is in part a problem of culture as well as law and that changes must apply to both. When we look at the law, I think the amendment in the name of my noble friend Lord Thomas of Gresford, may not be perfect. However, in 10 years of thinking about the matter, I have not managed to produce a better one and so I shall vote for it.

Lord Alexander of Weedon

My Lords, in Committee, speaking as chairman of Justice, I indicated that I found this issue extremely difficult. So did our members, who were perhaps uncharacteristically divided as a law reform group as to the merits of the position put forward by the noble Lord, Lord Campbell of Alloway, and the noble and learned Lord, Lord Ackner, and the merits of the case so eloquently argued by the noble Baroness, Lady Kennedy of The Shaws. The position for which I speak is not a formulated, firm Justice position.

I have read the reports of the debates in committees over recent years. I believe that thought and sentiment have moved on since the timing of the admirable Heilbron report. As I understand it, an amelioration of the law which tilts the balance towards the protection of the legitimate and important rights of women has been accepted in some other jurisdictions, including Canada, without any allegations of notable unfairness. I have no wish to take up time in this debate because I agree—although I cannot express it as eloquently nor from the perception of the same sex—with the views expressed by the noble Baroness, Lady Kennedy. I also agree with every word spoken by the noble Earl, Lord Russell. In Committee I said that, while I found the original government drafting cumbersome, if an amendment along the lines tabled by the noble Lord, Lord Thomas of Gresford, were accepted, I would gladly support that. I hope that the House will move in that direction.

Lord Cooke of Thorndon

My Lords, I do not often trouble your Lordships, being constrained by the convention that one does not speak in your Lordships' House unless one knows something about the subject. But it chances that I have a certain degree of expertise in the matter of non-consensual sex. It leads me to a position in principle not far removed from that of the previous four speakers in the debate.

In New Zealand the legislation requires reasonable grounds for a defence of belief in consent to sexual violation. That change came into force in 1986. In the same year I became President of the Court of Appeal. However, the two events were apparently not connected. In the 10 years of my presidency, and since, the legislation has operated without much difficulty and to general public satisfaction. Comparatively few cases have reached the Court of Appeal and only a mere handful considered worth reporting in the Law Reports. There is no move towards a return to Morgan and no likelihood of one. The subject has become simply a non-issue.

The significance of this change cannot be separately identified. It was part of a series of reforms, largely promoted by women's organisations. Some of those already have their counterpart in the United Kingdom, for instance, the abolition of the rule of practice requiring the judge to warn the jury that it is dangerous to convict on the uncorroborated evidence of the complainant. Together, these various changes were followed in New Zealand by a surge in complaints, prosecutions and convictions. In 10 years the number of convictions for rape rose 180 per cent.

There is another reason why the introduction of an objective ingredient cannot be isolated as a catalyst. As the noble Baroness, Lady Kennedy, said, a defence accepting that the victim did not consent, but asserting a belief in consent, is very rare indeed. Commonly, the defence is that she did consent, though both counsel and judge will tell the jury that it is enough if the defendant believed so on reasonable grounds. The jury's task is thus simplified, while prosecution is encouraged. For those reasons, I am led to favour the introduction of a partly objective test here. Dramatic changes in the rate of a conviction, as distinct from the number of convictions, should perhaps not be expected.

In New Zealand more than 50 per cent of sexual violation complaints are either not established or are ultimately decided by the police not to be well-founded. Of those complaints that are ultimately prosecuted, only about 35 per cent result in guilty verdicts. As to the formulation of a partly objective test, I favour the amendments tabled by the noble and learned Lord, Lord Falconer. They are not overcomplicated and by asking whether the accused could reasonably be expected to doubt whether the complainant consented, they focused on the particular accused and his characteristics.

Alternative formulae, such as a reasonable belief or a reasonably held belief, are less clear in that respect, as indeed is the New Zealand section which has led to High Court decisions that even intellectual impairment should be disregarded.

In New Zealand, when the reasonable grounds requirement was enacted, some professional voices were raised in opposition, invoking a purely subjective approach to mens rea, such as has been so skilfully urged before your Lordships by the noble and learned Lords, Lord Ackner and Lord Lloyd of Berwick, and others. But ultimately, the New Zealand Bill was passed without a Division—a circumstance which I mention as a happy fact, not necessarily as a prediction.

Lord Falconer of Thoroton

My Lords, I agree with the noble and learned Lord, Lord Lloyd of Berwick, that it would be unwise to allow the amendment for technical reasons. But I do not believe that it is right to debate it on the basis of the technicalities in relation to it. The amendment tabled by the noble Lord. Lord Campbell of Alloway, puts four square before the House one of the most critical changes that the Bill is introducing. As the noble and learned Lord, Lord Ackner, rightly said, the introduction of an objective element into the mens rea for rape affects a number of other clauses in the Bill. The amendment tabled by the noble Lord, Lord Campbell, therefore gives us another opportunity to debate that principle.

It was made clear at Second Reading and in Committee and I repeat that the Government are of the firm opinion that where the victim did not consent, but the defendant honestly believed that he or she did consent and if the prosecution can prove that that belief was unreasonable, then the defendant should be convicted of an offence.

We believe that that test is right in principle because it is currently unacceptable that an honest belief in consent, regardless of how unreasonable, can lead to an acquittal. We believe that it undermines the faith that victims are prepared to place in the justice system and we believe that it discourages them from bringing cases to court. If we remove the reasonableness tests then we will go back to the current position.

The unsatisfactory elements of the current position are, first, that it implicitly authorises the assumption of consent regardless of the views of the victim. Secondly, it is easy for the defendant to seek consent—the cost to him is very slight and the cost to the victim of forced sexual activity is very high indeed. We believe that it is not unfair to ask any person to take care to ensure that their partner is consenting and for them to be at risk of a prosecution if they do not do so.

Our position is simple. We can find no justice in leaving the law on consent as it is. One must remember that the issue applies when the victim has been raped and has been forced to have sexual activity without his or her consent, because the question of reasonable belief only arises when the act has occurred without his or her consent.

So we take the strong view that there should be an objective element in the matter. We do not believe that it is in any way unfair to require that the defendant should act reasonably in those circumstances. We believe that that is more just. I draw attention to the speech of the noble and learned Lord, Lord Cooke, not just because he supported the Government's amendment, but because he spoke with the experience of that or a similar provision being in force in New Zealand over a period of time. He supports the analysis that it would lead to more cases and more convictions and that it would not lead to miscarriages of justice.

I am grateful to the noble Lord, Lord Campbell, for giving us an opportunity to debate the issue again, but I earnestly implore noble Lords to support the significant change that we are seeking to make by introducing objectiveness into the mens rea for rape.

4 p.m.

Lord Campbell of Alloway

My Lords, I am grateful to the Minister and to all noble Lords who have spoken in this debate. As to the technicality, I am leaving that aside because the whole sense of the House is against the principle of the amendment. It is a sheer waste of time to deal with a technicality. I agree with and was impressed by the noble and learned Lord, Lord Falconer, and with the speech of the noble and learned Lord, Lord Cooke. In that speech there was the first glimmer—and more than that, light—of a justification for altering the whole substratum of our present legal approach. The sense of the House is that we should do that: that we should do away with Morgan; that we should do away with the decision of the Appellate Committee in which the noble and learned Lord, Lord Bingham of Cornhill, gave the leading opinion; we should do away with the decision of the High Court of Justiciary in Scotland and start again; and—as I think the noble Baroness, Lady Kennedy, put it—we should seek some kind of thread to right what is wrong in the law. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 [Rape]:

The Deputy Speaker (Lord Carter)

My Lords, before calling Amendment No. 2, I must inform the House that if that amendment is agreed to, I cannot call Amendments Nos. 3 to 9.

Lord Thomas of Gresford

moved Amendment No. 2: Page 1, line 5, leave out subsections (1) to (4) and insert— (1) A person (A) commits an offence if—

  1. (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis;
  2. (b) B does not consent: and
  3. (c) A does not reasonably believe that B consents.
(2) Sections 77 and 78 apply to an offence under this section.

The noble Lord said: My Lords, in this group of amendments I am concerned with simplicity, but more properly with the fair trial that a defendant has to face. I am concerned with the reverse onus of proof that exists in the presumptions that are set out in Clauses 77 and 78. I note that another practitioner, the noble Baroness, Lady Kennedy of The Shaws, indicated that she was against reverse onuses of proof.

I start with the basic statement of principle made by Viscount Sankey, the Lord Chancellor in the well known case of Woolmington: Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt … subject to any statutory exception.

The importance of the presumption of innocence was set out by Mr. Justice Sachs, whom some of us had the privilege to meet recently in this House, sitting in the South African constitutional court in the State v Coetzee in 1997. His statement of principle has been quoted with approval by the noble and learned Lords, Lord Bingham and Lord Steyn, in recent House of Lords cases. He said: There is a paradox at the heart of all criminal procedure, in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important the constitutional protections of the accused become. The starting point of any balancing inquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences massively outweighs the public interest in ensuring that a particular criminal is brought to book…Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system.

That last sentence of maintaining public confidence is a theme that I have played many times before your Lordships in connection with much legislation that has passed through this House.

There are three essential elements sought in the offence of rape—penetration by the defendant, lack of consent by the complainant and lack of reasonable belief in consent by the defendant. Those three elements are stated simply in Amendment No. 2. That is how I have set out how the offence should be defined. I also say that Clauses 77 and 78 should apply, but I shall come to that in due course.

In stranger rape, generally the issue is whether penetration took place and, if so, whether it was by the defendant. It is frequently an identity issue. In marital or acquaintance rape, generally the issue is consent or, in the alternative, belief by the defendant in consent. That was the way that the noble and learned Lord, Lord Cooke, expressed the matter a moment ago, and the noble Baroness, Lady Kennedy, said much the same. Regarding reasonable belief, we agree with the Government that it can be no defence for the defendant to say that he gave no thought as to whether the complainant consented. That is the purpose of Amendment No. 175 tabled in my name and that of my noble friend Lady Walmsley to replace Clause 77 simply to make that statement.

We have had that debate on reasonable or unreasonable belief already and I do not propose to say any more about that.

However, we part company with the Government on where the burden of proof on the third essential element of the offence should lie; that is, lack of reasonable belief in consent by the defendant, the rebuttable presumption set out in Clause 77 as presently drafted and the conclusive presumptions in Clause 78.

To make the defendant disprove a lack of reasonable belief in consent in the arbitrarily chosen circumstances set out in Clause 77—a number of circumstances are set out there but by no means all that could possibly arise in a rape case—we say is a fundamental derogation from the presumption of innocence. To presume conclusively that in other circumstances and in particular deception or impersonation, two of the three essential elements of the offence of rape are automatically proved—that is, both the complainant's lack of consent and the defendant's lack of belief in it—is, we say, a violation of the presumption of innocence.

When one comes to that position, that the presumption of innocence is attacked both by the rebuttable and the conclusive presumptions set out in the Government's Bill, we then have to consider whether such presumptions are compatible with a fair trial under the provisions of Article 6(2) of the European Convention on Human Rights. On that topic, the European Court in Salabiaku v France in 1988 stated: Presumptions of fact or law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the contracting states to remain within certain limits in this respect as regards criminal law…. Article 6(2) does not regard presumptions of fact or law provided in the criminal law with indifference. It requires states to confine them within reasonable limits which take into account the importance of what is at stake and maintains the rights of the defence".

So, where there are presumptions of law or fact, the convention is not silent about it and does not view it with indifference.

The noble and learned Lord, Lord Steyn, in the case of Lambert in 2002 quoted that passage and added: This test is dependent upon the circumstances of the individual case. It follows that a legislative interference with the presumption of innocence requires justification and must not be greater than necessary".

Similarly, the noble and learned Lord, Lord Hope, in the Kebilene case in 2000 stated: as a matter of general principle, a fair balance must be struck between the demands of the general interest of the community and the protection of the fundamental rights of the individual".

In summary, a derogation from, or what I would call a violation of, the presumption of innocence will satisfy the constitutional protections of an accused person only if it can be shown to be necessary, justified and proportionate.

Shortly after the convention became part of our law through the Human Rights Act, the Anti-terrorism, Crime and Security Act 2001 was passed, which included an offence of possession of nuclear weapons. One might think that that is a fairly serious offence but the statute, bearing in mind what had been said in Kebilene, was drafted in this way: (1) In proceedings for an offence … relating to an object it is a defence for the accused to show that he did not know and had no reason to believe that the object was a nuclear weapon. (2) But he shall be taken to have shown that fact if— (a) sufficient evidence is adduced to raise an issue with respect to it; and, (b) the contrary is not proved by the prosecution beyond reasonable doubt".

In the anti-terrorism Act an evidential burden was passed to the defendant to raise the possibility on the evidence that he did not know and had no reason to believe that the object he possessed was a nuclear weapon. But even with something as serious as that the legislation provided that it was for the prosecution to continue to have the persuasive burden of establishing beyond reasonable doubt that he did have that possession with knowledge of the fact.

Here, as regards the first element, it is not necessary to have a reverse onus of proof. In the circumstances postulated in Clause 77(2)(a) to (e) and even more so in Clause 78—for example, circumstances where violence is used; where the complainant is asleep, or where there is deception and so forth—the jury will have no difficulty whatever in determining the defendant's belief and whether it is reasonable, just as juries daily up and down this country determine intent, dishonesty and other states of mind.

So, we say that it is not necessary to reverse the onus of proof. If a man uses violence against a woman, it is not difficult to show that he had no reasonable belief that she consented. He raises the issue, it can be destroyed by the prosecution and it does not necessarily require a great deal of effort to do that by cross-examination or whatever.

We also say that it is not justified—the second of the three tests—because, unlike the relatively few instances in serious crime where the persuasive burden is on the defendant in relation to an essential element of the offence, there is nothing peculiarly within the defendant's knowledge in a rape case as opposed, for example, to a case involving accounting systems or fraud, which the prosecution would have any difficulty in disproving. Even if there were, a reverse evidential burden could be justified only with the onus of proving guilt ultimately remaining on the prosecution.

In the recent case of Carass in 2002 the Court of Appeal stated: the proper approach has to be that if a reverse burden is to be imposed on an accused it must be justified and in particular it must be demonstrated why a legal or persuasive rather than an evidential burden is necessary".

For it to pass the tests of Article 6(2) of a fair trial it has to be shown why a legal or persuasive burden rather than an evidential burden is necessary.

Finally, these reverse onuses of proof are not proportionate. All the sex offences in question carry heavy sentences up to life imprisonment. We consider that it would be quite wrong for a jury to convict if there were a doubt about the third essential element, reasonable belief in consent. If, as regards the third essential element, the burden is placed on the defendant who has to satisfy it on a balance of probabilities, the jury could find against him but yet retain up to 49 per cent of a doubt about his guilt. Lord Justice Waller stated in the case of Carass, to which I have referred, With an evidential burden it will be for the defendant to produce some evidence that any concealment established against him was not with the intention to defraud".

That was a fraud case. Common sense dictates that if concealment is proved the evidential burden will be quite a difficult burden for the defendant to surmount. If however he were to surmount it, then it would be less than satisfactory if he could still be convicted if the jury were not sure that he had intended to defraud".

How much less satisfactory is it in the crime of rape punishable with life imprisonment that juries would find themselves obliged to find a person guilty while there was still a doubt in their minds? Lord Justice Clarke in Sheldrake, another recent case, stated: Since the inherent danger of the reverse burden technique is that an innocent accused may fail on the balance of probabilities to establish his innocence, the consequences of failure are relevant".

The amount of punishment that is likely to arise is a relevant matter in considering whether a reverse onus is necessary, justified and proportionate.

I invite your Lordships to consider the amendments in that light. I have attempted to define the offence simply, with the three necessary elements. New Clause 77 states that belief should not be satisfied by a person not having given any thought to the matter. Amendments relating to Clause 78 set out the circumstances that a jury ought to bear in mind when it comes to its conclusion as to whether the prosecution has proved the third element of a reasonable belief.

The matters that I have set out in amendments to Clause 78 are taken straight from the elements that the Government want to make the subject of a rebuttable or conclusive presumption. We say that is not the right way of going about it. The jury should simply be reminded of all the circumstances, including—to take a point made by the noble and learned Lord, Lord Cooke—that the characteristics of the particular defendant should be considered.

In light of that, I am convinced that a defendant would have a fair trial but that the public interest would be properly served in ensuring that the guilty are convicted and that those who are not guilty are acquitted. I beg to move.

Baroness Noakes

My Lords, I shall speak to Amendments Nos. 7, 8, 19, 20, 29, 30, 38 and 39 in my name and that of my noble friend Lord Astor of Hever.

We on these Benches share with Government and Liberal Democrat members a desire to produce a formulation for sexual offences that works and contains a reasonableness test that works. The Government listened to the concerns expressed on Second Reading and in Committee and have tried to respond. The noble and learned Lord the Minister will speak to Amendment No. 6 and others in due course. We welcome that the Government have thought again. We particularly welcome that they have moved away from the concept of the hypothetical reasonable person to reasonableness in relation to the defendant.

We have concerns, however, about amended Clause 1(3), which would abandon the formulation of the offence of rape in terms of belief and consent in favour of one based on doubt about consent. I can see the logic, but is it simple enough?

In contrast, the amendments tabled by the noble Lord, Lord Thomas of Gresford—to whom I pay tribute for working extremely hard on producing amendments for Committee and Report stages, despite his many other commitments—are much simpler and more traditional. The conservative in me values the link to tradition.

Amendments Nos. 7 and 8 seek to insert "sharing the characteristics of A" into the existing formulation for reasonableness. For example, if A had severe learning difficulties, the test would be formulated by reference to A. The Government's new formulation refers to all the circumstances being taken into account. If that were adopted, I would want to add "including the characteristics of A".

The Minister knows of my concerns and I would be pleased to hear how he can be sure that his formulation would require the defendant's extreme learning difficulties or youth to be taken into account. In Committee, the noble Viscount, Lord Bledisloe—who I am pleased to see in his place—said that "circumstances" meant surrounding facts, not the individual's particular characteristics. Does the Minister believe that the wording of the Government amendment is absolutely clear? Amendment No. 178 in the name of the noble Lord, Lord Thomas, explicitly refers to the characteristics of the defendant.

A final concern is the role of presumptions in Clauses 77 and 78, to which a later group of amendments refers. We fully support the comments of the noble Lord, Lord Thomas, in that regard.

We want the law on rape and other sexual offences to be workable and effective, which is how we shall judge the amendments before us. The noble Lord, Lord Thomas, made a powerful case for his amendments. I look forward to the Minister's reply.

4.30 p.m.

Lord Lloyd of Berwick

My Lords, I regret that I cannot support the amendments in the name of the noble Lord, Lord Thomas of Gresford. I shall speak also to Government Amendment No. 6, the amendments to which the noble Baroness, Lady Noakes, spoke, and my Amendment No. 17 to omit Clause 3(3).

Clauses 1 to 15 are a huge improvement on the law as it is at the moment. They set things out clearly and well and will be widely welcomed by the judiciary and those who practice in the criminal courts. I wish that I could say the same about Clause 1(3) but I cannot.

As recently as 2000, the Law Commission—after an exhaustive and lengthy inquiry— recommended that the definition of rape should remain as it is. The noble and learned Lord, Lord Ackner, has already read the relevant passage to your Lordships. Even more recently, the Home Office steering group was against introducing any objective element into the law of rape. In light of that recommendation, one looks for some satisfactory explanation as to why that recommendation has not been accepted. One can find none.

This may be a good moment to stand back and remind ourselves of the existing law. One can do that best by taking Clause 1(2) and reading in a few words at the end. It states: This subsection applies if A does not believe that B consents (whether because he knows that B does not consent, gives no thought to whether B consents, or otherwise)".

Then: In deciding"—

this is existing law— whether A does not so believe, the jury shall have regard to all the circumstances of the case and in particular to the presence or absence of reasonable grounds for such belief".

Having read that to your Lordships, I am inclined to ask what is wrong with it? What more could one want? If there are no reasonable grounds for the belief, the jury will reject the defendant's evidence and convict. If there are reasonable grounds for the belief, the jury will very probably acquit—but obviously depending on the impression that the evidence of both sides has left.

Why is a change needed at all? Does not the existing law in practice give the Minister everything that he wants with regard to the requirement for reasonableness? It is there in the Sexual Offences (Amendment) Act 1976.

Perhaps I may deal in advance with two of the arguments the Minister will no doubt put forward in reply. The first is that the defendant should not get off by asserting an honest belief in the lady's consent however unreasonable. One hears that argument over and again. It was used by the Minister in the letter he was good enough to write to me after the Second Reading debate. He said: We believe that the test is right in principle because it aims to correct the situation in the law at present whereby an honest belief in consent is sufficient to negate the mens rea of the offence, regardless of how unreasonable the actions of the defendant might have been".

That first argument is, I submit, misconceived. None of the judges who spoke in Committee had ever heard of such a case in practice. I am sure noble Lords who were present will remember the remarkable speeches of the noble and learned Lords from north of the Border, Lord McCluskey, and Lord Cameron. They regarded as outlandish the suggestion that such a case could arise. All the English judges with experience of applying this part of the criminal law were of the same view. What can one put against all that practical experience? What is put against it is nothing but a theoretical objection expressed in a rather tendentious way.

The second argument is this. It is said that we need to change the law because defendants who are in truth guilty must be getting off because of the low conviction rate. That needs to be examined in stages. One has often read, or heard it said, that there must be something wrong with a conviction rate for rape as low as 7 per cent. But that again is a complete misconception. Seven per cent is not the conviction rate. In the course of his reply, the Minister gave the conviction rate as 45 per cent, subsequently correcting it to 41 per cent. Many people may have found that surprising, and much higher than they had been led to expect. But if that figure is correct—I have no reason to doubt it—is it all that surprising?

In considering the offence of rape, it is helpful to refer to the crime of murder. Between 1991 and 2001 the number of those tried for murder varied each year between 557 and 661, a very narrow margin, as it always is. The number of those convicted of murder varied between 197 and 277, another very narrow margin. If one adds the figures for those eleven years and applies one to the other, one will find a conviction rate of 40 per cent—1 per cent less than the rate of conviction for rape.

The Minister will undoubtedly say, and others with knowledge of the criminal law will know, that many of those acquitted of murder will have been convicted of the lesser crime, manslaughter, on the ground of either provocation or diminished responsibility. If he were to say that, of course, he would be right. However, in the case of murder no one argues that there must be something wrong with the law because only 40 per cent of those tried are convicted of murder. So why is it so different in the case of rape? Why do we have this impression that somehow the conviction rate for rape is too low? The answer is, I think, because in the case of rape there are powerful and vocal pressure groups at work. The noble Baroness, Lady Kennedy, referred to them in her wonderful speech. No one doubts that they are doing the job they feel they must do. The truth is that these powerful groups influence the press; the press influence public opinion; and public opinion influences the main political parties far beyond what is justified.

I have in mind a very short and pertinent speech made in Committee by the noble Baroness, Lady Carnegy of Lour. Without her permission—I wish she were present—I read one sentence: However, I want to remind the Government that, in their laudable intent to assist women who are raped and whose assailant is not convicted, they may not be meeting what the public want in the way they want it. In my experience, which is mostly local, there is a world of difference between the reaction of ordinary members of the public to rape trials and rape accusations and the reaction of the groups who exist to stand up and speak for women".—[Official Report, 31/03/03; col. 1084.]

The noble Baroness went on to say that she thought that the Government were misguided in their approach to the question, and altogether barking up the wrong tree. I suggest that there is a great deal in what the noble Baroness said. I entirely agree with it. I fear that the same is as true of the Conservative and Liberal parties as it is of the Government.

The trouble with pressure groups is always that the more vocal and powerful they are, the more likely they are to distort sound judgment. The burden of resisting what seems to me to be unnecessary changes in the law falls on the Cross Benches who have little power but at least no political axe to grind.

Let us suppose that I am wrong about all that. Let us suppose that the conviction rate for rape is lower than for other comparable offences. Is that not exactly what one would expect? I suggest that that is so for two reasons. First, there is evidence, admittedly anecdotal, that in rape cases the Crown Prosecution Service does not always apply the 51 per cent guideline the Attorney-General says that it should. That would explain why the conviction rate for rape may be less than 50 per cent.

Secondly, in cases of other crimes where the conviction rate is or may be higher, there is almost always some other evidence to support the prosecution case whereas in many, if not most, rape cases there is not. It is word against word with nothing else for the jury to go on. Therefore, one can well understand why a jury in those circumstances, with convincing evidence on both sides, will give the benefit of the doubt to the defendant. That is exactly what they should do and what judges always tell them to do; it is their duty. I suggest that it is not in the least surprising to find that the conviction rate is 41 per cent. Indeed, that is just what one would expect, and no ground for changing the law.

However, let us suppose that for political reasons the Government are determined to increase the number of rape convictions. There are two ways in which they can do so. They could either make rape a crime of strict liability—in other words, it would be enough to prove that the woman is not consenting—or they could say that the jury need not be convinced beyond reasonable doubt but that proof on the balance of probability would be enough. Neither of those solutions would be remotely acceptable to any Member of this House but at least they would work.

What have the Government proposed in its stead? They propose the creation—it is nothing short of a creation—of a brand new crime of rape, not dependent on knowledge, recklessness, or the guilty state of mind, but on negligence; not even gross negligence as in the case of manslaughter but ordinary negligence—not taking steps which could reasonably be expected in all the circumstances—as if the victim were claiming damages for tort. I suggest that it is totally unacceptable to have a crime of rape by negligence, where the crime carries a sentence of life imprisonment. It would not work. It would not result in one further conviction: it would merely result in more appeals.

Let us suppose that the Government are determined to create this new offence of rape by negligence, alongside the existing offence of rape. What do they do? They lump both offences together in the same clause, with the same maximum sentence of life imprisonment. That is nothing short of dotty. It must surely be obvious that rape by negligence under subsection (3) is a much less serious offence than rape when the defendant knows that the woman is not consenting, or is reckless in that respect. Putting those two separate offences in one clause shows, as much in the Bill does, that this legislation has been drafted by civil servants with, one regrets to say, little experience of how courts work and limited knowledge of what actually happens within them. They cannot have consulted the judges on this change—or, if they have, the advice of those judges has been rejected.

One cannot have a single offence with two alternative states of mind—incompatible mental elements—as in subsections (2) and (3). I entreat the Minister simply to read page 103 of the current edition of Smith and Hogan and to study what is said there about that suggestion. How can a defendant plead to a count that contains alternatives, as set out in subsections (2) and (3)? How can a judge sentence when he has two alternatives before him, on either of which the jury might convict? As the noble Lord, Lord Thomas, I am sure, will tell us, a count with alternatives of this kind would be struck out as being bad for duplicity. If we are to have this new-fangled offence of rape by negligence, please may we have it in a separate section with a lesser maximum sentence? That would make sense, and might at least result in a few extra convictions: the present version as set out in subsection (3), and the alternative proposed by the noble Lord, Lord Gresford, will not.

Baroness Mallalieu

My Lords, I agree with every word just spoken by the noble and learned Lord. I am always troubled when I hear it said that a balance must be struck. It indicates that an important matter of principle is about to be ditched. There is at present, quite rightly, a serious stigma attached to the offence of rape. The provisions suggested by several sides of the House reflect the pressure groups to which the noble and learned Lord referred. I am bound to say that my experience is very much akin to that of the noble Baroness, Lady Carnegy, when I talk to people about the sort of cases in which, as a criminal barrister concerned with rape, I am involved. Much as I admire her eloquence, the way in which the matter was put by the noble Baroness, Lady Kennedy, does not reflect the general view.

I am also troubled by the proposed law of unintended consequences. The stigma that currently attaches to rape is rightly attached to a situation where one person forces himself on another against the will of the other and without concern for his or her objections. The stigma is not attached to carelessness, inadvertence, mistake or negligence. I pay tribute to the Minister for his response to those of us who raised concerns at an early stage. I recognise that the noble and learned Lord has moved a considerable distance. But, ironically, the proposed change might well be to downgrade the seriousness of the crime, which I do not believe to be the intention of the Government. Nor is it what some of those in favour of change wish to see. I shall support later amendments proposed by the noble and learned Lord, Lord Lloyd.

4.45 p.m.

Lord Campbell of Alloway

My Lords, I agree with the noble Baroness, Lady Mallalieu. I agree also with the comments made by the noble and learned Lord, Lord Lloyd of Berwick, on, effectively, Amendments Nos. 4 and 5—though he actually spoke to subsection (3) as regards the latter amendment—to which he has attached his name.

The grouping begins with Amendment No. 2 moved by the noble Lord, Lord Thomas of Gresford. I am in difficulties with the amendment because it includes the word "mouth". I have tabled a later amendment that proposes to exclude the reference to "mouth". I do not wish to anticipate the debate, or to take up the time of the House by repeating myself when I move that amendment, but, basically, that is the reason behind my objection to the noble Lord's amendment. I shall greatly regret it if we are to have the "reasonable" defence, but not "guilty intent". It is wrong to remove guilty intent" from the offence of rape. However, if the House proposes to go that way, then I am with the noble Lord, Lord Thomas of Gresford, on paragraph (c) of his amendment, because noble Lords would accept "reasonably believe".

I am also very much with the noble Lord on the violation of the presumption of innocence. I am, therefore, in a split position, which I thought I should declare to the House in the presence of the noble Lord. I do not wish to detain noble Lords. I shall deal in due course with my amendment, which proposes to delete the reference to "mouth". The issue may well have been spoken to by the time that Amendments Nos. 4 and 5 are called. I simply do not know.

The wording of government Amendment No. 6 is repeated throughout this grouping as regards Clauses 1, 3, 5, and 7, which is the run to which I referred earlier. When moving Amendment No. 1, I said that I would be opposed to that change. However, if the House is to take another route, I should still find this unacceptable in rape because it would substitute an artificial, abstract standard of "reasonableness" for guilty intent. For my part, I cannot get away from that position. Having made the point, I should add that I am grateful for having had the opportunity to make myself plain.

Lord Ackner

My Lords, I agree entirely with my noble and learned friend Lord Lloyd of Berwick. That is not surprising, because I am bracketed with him in regard to Amendments Nos. 4 and 5. I do not know whether I misheard what was said on the rate of conviction—this happens from time to time nowadays—but I understood from the most informative speech made by the noble and learned Lord, Lord Cooke of Thorndon, that since New Zealand amended its legislation to introduce the objective test the conviction rate stands at 35 per cent. Have I got that wrong?

Lord Cooke of Thorndon

My Lords, that is substantially correct, but it must be remembered that the number of convictions for rape has dramatically increased. However, the rate of convictions as against complaints—complaints have also increased—is about 35 per cent.

Lord Ackner

My Lords, I am very grateful. That is appreciably below what we have at present, without any amendments. I thought it might be worth reminding the House of that.

Lord Falconer of Thoroton

My Lords, three issues are raised by this group of amendments. The first is the objectiveness test, again. All the amendments in the group have some formulation in relation to an objective test. The second issue is what that objective test should be. The third is the presumptions issue: have we gone too far in placing too many burdens on the defendant? That is the point raised by the noble Lord, Lord Thomas of Gresford.

With regard to the objectiveness test, the noble and learned Lord, Lord Lloyd of Berwick, made a very powerful speech which in effect supported the point made by the noble Lord, Lord Campbell of Alloway. It completely ignored the speech by the noble and learned Lord, Lord Cooke of Thorndon; it was delivered as if the hypothesis had never been tested in practice. The noble and learned Lord, Lord Cooke, who was the President of the Court of Appeal in New Zealand from the time such a test was introduced, said that it was part of a number of measures that were introduced, and also said candidly that it was not possible to tell precisely which effect which measure had had. But his broad thrust was that it worked and worked well, and, along with the other measures, increased the number of cases brought to trial.

From all round the House there was support for the introduction of an objective element, to the extent that the noble Lord, Lord Campbell of Alloway, said that the sense of the House was that it wanted to have an objective element, for the reasons given by the noble Lord, Lord Thomas of Gresford, by the noble Baroness, Lady Noakes, and by my noble friend Lady Kennedy of the Shaws. We strongly take the view that the time has come for there to be that objective element, because I ask the House to remember that the victim has been raped, has been forced to have sexual activity without her consent. The issue is whether or not the defendant honestly and reasonably believed that she consented. There is no question in these cases over there not having been consent, because only after that has been established does the issue arise. Therefore, with the greatest respect to the powerful speech delivered by the noble and learned Lord, I rely on the arguments advanced not just by me but by other noble Lords in the first part of the debate.

The second issue is how to formulate the reasonableness test. The Bill is as it is. The amendments of the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Walmsley, would strike out the existing test of mens rea from subsections (2) and (3) and replace it with a requirement that the defendant does not reasonably believe that the complainant consents. Those of us who are following the debate by reference to the documents will note that in Amendment No. 175, to Clause 77, they then have a seven-line explanation of what is meant by absence of belief in consent. I suggest that noble Lords look at that to see the precise nature of the reasonableness test proposed as being simpler than ours.

We believe that considerable and effective points were made about our test in subsection (3), and in response to the criticisms levelled against the way in which our own reasonableness test was framed, we propose our own amendments to Clauses 1, 3, 5 and 7 to introduce a new, simpler version of the reasonableness test, one that we believe effectively addresses the concerns that have been raised, while still meeting our policy objectives of focusing on the actions taken by the defendant.

I appreciate that the noble Lord, Lord Thomas of Gresford, and I both assert that our test is the simpler, but in some respects the noble Lord's test loses some key elements. The test that the Government propose in Amendment No. 6 and the amendments dependent upon it focuses upon whether the defendant should have doubted that there was consent. The test directs the jury to look at all the circumstances in considering this issue, including whether the defendant took any steps to ascertain consent. These are utterly straightforward issues that the noble Lord would be the first to agree the jury would have no difficulty in understanding.

The jury's consideration will also take account, where necessary, and subject to any directions of the judge, of any relevant characteristics of the defendant. But the really important matter is that our test will be easier for the jury to apply than the negative formulation—

Lord Campbell of Alloway

My Lords, will the noble and learned Lord deal with what I think could be the crunch issue: the burden of proof? There is a sticking point.

Lord Falconer of Thoroton

My Lords, I shall certainly come to the question of the burden of proof, but I shall first deal with how one formulates the reasonableness test.

The reasonableness test of the noble Lord, Lord Thomas of Gresford, is a negative formulation: does the defendant not reasonably believe? It is far simpler for the jury to be asked to consider positive facts—should the defendant have had doubts about consent in all the circumstances?—rather than being asked to decide whether the defendant should not have believed in consent.

Amendment No. 175 of the noble Lord and the noble Baroness, Lady Walmsley, would retain the focus of the reasonableness test on the steps that the defendant took, but this issue needs to be clearly spelt out in the relevant non-consensual clauses. In any event, that amendment does not detract from the problems of the negative formulation that the noble Lord proposes, the "does not reasonably believe" test, which I have already outlined.

The amendments of the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor of Hever, Amendments Nos. 7, 8, 19, 20, 29, 30, 38 and 39, are all designed to require the jury to take into account the personal characteristics of the defendant when applying the reasonableness test. Those are amendments to our old subsection (3), which, whether we take my test or the test of the noble Lord, Lord Thomas of Gresford, would not survive.

However, I should deal with the point that is raised in the amendments. Introducing a requirement that all the personal characteristics of the defendant should be taken into account would mean that the jury would be asked to take into account characteristics that should not absolve him of guilt: for example, the fact that he has a quick temper or that the sight of a girl in a miniskirt will always turn him on and make him unable to resist her. That cannot be the intention.

I have indicated that the judge and the jury together can be relied on to identify those characteristics which could be taken into account, and I stand by that. That applies just as much to government Amendment No. 6, and it would apply equally to the amendment of the noble Lord, Lord Thomas of Gresford. He can express his own view about that.

As I explained in Committee, it is for the jury to decide whether any of the defendant's attributes are relevant to their deliberations, subject to the judge's directions where necessary.

I have dealt with Amendment No. 175. It retains the effect of the provisions in subsection (2) of Clauses 1, 3, 5 and 7, but is much more complicated. Subsection (2) of each clause contains a "does not believe" test. As I have already explained, since this negative formulation is difficult to understand, we have given examples in brackets of what it covers. One example is where the defendant gives no thought to whether the complainant consents. The noble Lord achieves the same end, but by means of a presumption. We consider that that is unnecessarily complicated. It is obvious that a person who gave no thought to the question of consent cannot have believed in consent. It is worth mentioning but it is not worth creating a presumption about it. It is more helpful for this explanation to be in the relevant clauses than in Clause 77.

We favour our approach rather than that of the noble Lord, Lord Thomas of Gresford. We bear in mind the points made by the noble Baroness, Lady Noakes. All three proposals—ours, the noble Baroness's and the noble Lord's—seek to arrive at broadly the same point. The right course is for the Government to consider all three amendments, to talk to parliamentary counsel and to come back at Third Reading with a formulation to deliver the result that I anticipate we all want to achieve. The issues between us are not about achieving a particular end but about the best way of formulating that end. That is all I want to say in relation to the reasonableness test.

The rebuttable and conclusive presumptions raise different issues, with which the noble Lord, Lord Thomas of Gresford, has quite rightly dealt.

5 p.m.

Lord Lloyd of Berwick

My Lords, before the noble and learned Lord leaves the reasonableness test, is he saying that a person could be charged in the same count with the alternatives of the objective and subjective offence? If not, would it not be better to have the objective and subjective offences in separate sections with different penalties, otherwise we are bound to get into trouble?

Lord Falconer of Thoroton

My Lords, we are not persuaded of that. We believe that the right course is to keep them within the same offence. Rape is charged now in an indictment simply as the defendant on such and such a day raped X—X being the name of the victim. It is right that it should be left that way. It would be quite wrong to require the prosecution, in drafting the indictment, to formulate specifically which of two ways it puts the case. I am sure that that is the right course.

Lord Lloyd of Berwick

My Lords, how does a defendant plead to such a count?

Lord Falconer of Thoroton

My Lords, there will be absolutely no difficulty at all in relation to that. There will be no difficulty in the defendant deciding whether or not he pleads guilty to a charge of having sexual intercourse with the victim without her consent. With the greatest respect, the noble and learned Lord is exaggerating the difficulties in relation to that.

Lord Thomas of Gresford

My Lords, perhaps I may assist the noble and learned Lord. The position today is that if a person pleads guilty to a charge such as rape he will almost inevitably agree the basis of plea to avoid a hearing as to what is the basis of his plea. He will therefore set out the basis—whether it is subjective or objective, to use the noble and learned Lord's expression—and, if the prosecution accepts that basis of plea, the plea will then go forward and sentencing will occur.

Baroness Kennedy of The Shaws

My Lords, in accepting that a judge would direct the jury as to enduring characteristics, I should be grateful if the Minister could make it clear to the House that we are talking about enduring characteristics such as youth or mental impairment and not cultural differences or people being able to pray in aid that because of their culture a woman who presents in a particular way may be indicating availability. It is very important that a licence is not given under which it could be claimed that there is a characteristic in the accused which would allow for a certain degree of unfair practice.

Lord Falconer of Thoroton

My Lords, I am grateful to the noble Lord, Lord Thomas of Gresford, for dealing with the point raised so effectively by the noble and learned Lord, Lord Lloyd. As to the point raised by my noble friend Lady Kennedy of The Shaws, it would be unwise for me to restrict the precise characteristics to which a judge could direct a jury. It will depend upon the circumstances of a case. The noble Baroness is obviously right to refer to the enduring characteristics of age and mental impairment but I should not like to rule out other circumstances. One will have to leave it to the good sense of judges and juries.

As to the question of presumption, we propose that where the victim has not consented and where, for example, immediately before or during the sexual act which founds the charge she is subjected to violence, it is for the defendant to prove on a balance of probabilities that he believed that she was consenting. In other words, he has to give evidence of something that was completely in his own mind where it is accepted, or it is proved, that the victim was not consenting and there had been violence beforehand. Is that reasonable and sensible? We believe that it is because the defendant has to give evidence of what went through his mind. He has to establish to the satisfaction of the jury—on the balance of probabilities, not beyond a reasonable doubt—that, despite the fact that she did not consent, despite the fact that he was inflicting violence on her at the time, he nevertheless believed she consented. It is a fair, just, proportionate and appropriate way to deal with the issue. That is the basis of our case in relation to the presumptions. It is sensible and will assist.

On previous occasions the noble Lord has said in the course of debates that that is how the judge and the jury would operate anyway in relation to such a case. If that is how they would operate anyway, let us make the law reflect the way that a judge and jury would operate in a sensible case. There is a place for the presumptions. They have been sensibly and appropriately limited and will assist in the good administration of justice.

In conclusion, with the greatest respect to the noble and learned Lord, we reject his arguments in relation to reasonableness. As to how we formulate it, the right course is to see whether we can reach a solution which is acceptable to everyone and to come back with an amendment. In relation to the presumptions—which, although separate, it is right to deal with them in this clause; plainly, any vote on reasonableness would not determine any vote on presumptions—we believe, with the greatest respect to the noble Lord, Lord Thomas of Gresford, that we have the policy about right in that regard.

Lord Thomas of Gresford

My Lords, as regards the competing tests of how one introduces the objective element, the noble and learned Lord believes that his formulation, A could reasonably be expected to doubt whether B consents",

is simple. I do not believe that it is. It invites the jury to enter into a hypothetical discussion as to whether A could reasonably he expected to doubt at the time of the alleged offence. It is far easier for a jury to grapple with the concept of what he believed at the time. Did he believe she consented? It is a very simple matter. Having come to the conclusion that he did, did he reasonably believe it? That is a simple way to deal with the issue.

As to the question of presumptions, we on these Benches do not believe in presumptions at all. But, if there are to be presumptions, surely they should shift only the evidential burden and not the persuasive burden to the defendant. In other words, if he should raise the issue in evidence given either by himself or in the course of the prosecution case, ultimately, in a serious matter such as a charge of rape, the burden of proving the case, of rebutting the presumption of innocence, of finding the defendant guilty, should always remain on the prosecution.

In the spirit of the Minister's reply I shall not press a Division at this stage. I hope that we will have further constructive discussions as to how to formulate the test, as he suggested. I thank the Minister and those advising him for the considerable assistance they have been to me in the course of the period that has elapsed between the Committee stage and today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Campbell of Alloway

moved Amendment No. 3: Page 1, line 6, leave out ", anus or mouth" and insert "or anus

The noble Lord said: My Lords, I shall put this very simply. Oral penetration without consent is a serious sexual assault, but has never been hitherto defined or understood to be rape. The noble and learned Lord, Lord Lloyd of Berwick, has already, to some degree, spoken to this today. The noble and learned Lord, Lord Bingham of Cornhill, in a decision of the Appellate Committee of your Lordships' House concerned with the defence of honest and genuine belief as to consent—but it would have been said in any other context—said: Nothing in this opinion should be taken to minimise the potential seriousness of the offence of indecent assault. While some instances of the offence may be relatively minor, others may be scarcely less serious than rape itself. This is reflected in the maximum penalty, now increased to 10 years', and the mandatory requirement that those convicted be subject to the notification requirements of the Sex Offenders Act 1997".

Your Lordships should know that, by chance, after I moved and withdrew this amendment in Committee, the noble and learned Lord, Lord Lane, who happened to be passing by in the Library, said to me, "I heard you talking about another offence or altering Clause 3 or something like that". I said, "Yes, my Lord, I did". He said, "That is a lot of nonsense. What is wrong with indecent assault? Indecent assault would cover this. It has this wide range.". It was then that I decided to look up the law and I found what the noble and learned Lord, Lord Bingham, had said.

The essence of the argument has already been put better than I could put it. Oral penetration is not rape. What is the justification for changing it and calling it rape? There is an alternative suggested for Clause 3. That is a matter for your Lordships to consider. But I particularly defer to the opinion expressed in Committee by the noble Baroness, Lady Mallalieu, who opposed the redefinition of rape in this way. She said, and I agree, that it degrades the seriousness of the label of rape and could confuse juries, who might well decline to convict of rape. There is nothing much more that I could usefully say to persuade your Lordships. I beg to move.

Lord Lloyd of Berwick

My Lords, I support this amendment. It is a very short point. All the arguments were advanced in Committee. In particular, we all remember the speech made by the noble Baroness, Lady Mallalieu. No one advanced any argument in Committee for including oral penetration for the first time in the offence of rape other than to say that it is a very serious offence. That it is a very serious offence we are all agreed,but it is not rape as ordinarily understood. For that reason, in Amendment No. 14A I have proposed to put this offence in Clause 3, which is where it belongs, under the heading of assault and with the same maximum sentence of life imprisonment.

When the Minister replied on the previous occasion, he did not completely shut the door. In that respect, he seemed to have an open mind. I invite him to consider again whether it would not be better to include what he wants—he will get all he wants—by inserting oral penetration in the offence under Clause 3 and not under Clause 1 where it does not belong.

5.15 p.m.

Baroness Mallalieu

My Lords, I shall add briefly to all that has been said in earlier debates on this topic. Whether victims of this type of sexual offence regard it as as serious and as damaging as rape I cannot say. That may be right. It is perhaps a subjective view as to whether it is as serious, more serious or less serious. It is clearly serious but, above all, it is a different offence. That is why I support the proposal made by the noble and learned Lord, Lord Lloyd of Berwick, that if it is regarded as inadequately dealt with at present under the provisions for indecent assault, there should be a separate offence with a separate penalty to cover it. It would be a mistake to extend the word rape, which has an ordinary meaning that everyone understands, to cover something that at present no one would understand actually to mean rape. I hope that the Minister will consider what has been said and perhaps adopt the approach of the noble and learned Lord.

Lord Falconer of Thoroton

My Lords, the noble and learned Lord, Lord Lloyd of Berwick, is correct that the debates were very fully canvassed on the previous occasion when I made clear that that which had weighed with the Government in this respect was the very persuasive evidence submitted to the Sexual Offences Review by victims and victim support groups. From the perspective of victims—I fully accept that the noble Lord, Lord Campbell, and the noble and learned Lord, Lord Lloyd, do not dispute any of this—forced penile penetration of the mouth can be just as horrible, demeaning and traumatising as other forms of forced penile penetration and is equally, if not more, psychologically harmful in certain cases than vaginal and anal rape.

As the evidence given to the inquiry revealed, it is not unusual for women and children who have been violated in this way to develop long-term difficulties in eating and drinking. They may also have difficulties in visiting the dentist, leading to poor health care. I appreciate that including forced oral penetration within the scope of Clauses 3 and 4 recognises the serious nature of this particular form of offending behaviour and also provides for a maximum life sentence. I listened, too, to the arguments that perhaps the public and, in particular, juries might not take the view that it is rape.

Rape is already clearly understood by everyone to be an offence of non-consensual penile penetration committed by men on women and on men. Juries have had no difficulty in accepting past changes to legislation that broadened the scope to cover both rape within marriage and anal penetration of one male by another. Once it is made clear in statute that the offence of rape includes forced oral penetration, there is no reason to believe that juries will have any difficulty with this change either.

Penile penetration is of a particularly personal kind. It carries risks of disease transmission and I believe that it should be treated separately from other penetrative assaults. In our view, it makes good sense for all forms of non-consensual penile penetration to be grouped together within the offences of rape. Broadening the scope of the rape offence in this way also ensures that legislation properly reflects the seriousness of the offence of forced oral penetration and its effects on the victim. For all the reasons given, we object to the amendments advanced.

Lord Campbell of Alloway

My Lords, I cannot say that I am exactly grateful to the noble and learned Lord for his response, but I am grateful to noble Lords who have spoken. Although there is a real temptation to take the opinion of the House to clear the deck of this point, which crosses the point of difficulty to which I referred in regard to the amendment of the noble Lord, Lord Thomas, I believe that it would be wrong to take the opinion of a "thin" House. I also believe that it would be wrong to return to the matter on Third Reading because I do not think, quite contrary to the other matter being left over to Third Reading, that this is really a Third Reading point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 4 to 8 not moved.]

Baroness Noakes

moved Amendment No. 9: Page 1. line 18, leave out subsection (4).

The noble Baroness said: My Lords, in moving Amendment No. 9, I wish to speak also to the amendments with which it is grouped.

The effect of these amendments is to remove the rebuttable presumptions about absence of belief in consent in Clause 77 and the conclusive presumptions about consent in Clause 78.

I shall not rehearse the detailed arguments on which we spent well over an hour in Committee or go over the ground that we covered earlier in the second group of amendments when the noble Lord, Lord Thomas of Gresford, spoke powerfully about the effect on the presumption of innocence. I shall confine my remarks to three matters.

First, the rebuttable presumptions are at one level a statement of the obvious. To take the circumstances in subsection (2)(a) of Clause 77, if the prosecution proves that the defendant used violence against the complainant and knew that, why do we need a rebuttable presumption of lack of belief in consent? To use the formulation in the Government's latest version of Clause 1(3), the defendant who has used the violence could reasonably be expected to doubt whether the complainant consented. That is why he used the violence. So what is added by a rebuttable presumption? Are the Government saying that juries are so perverse that they cannot work out what is or is not reasonable when violence is used? In Committee several noble Lords actually thought that the rebuttable presumptions would make the matter even more confusing for the jury.

Secondly, the list of rebuttable presumptions is too narrow. The Government said in their White Paper Protecting the Public that the definitive list of rebuttable presumptions would send a clear signal of the circumstances in which sexual activity is likely to be wrong. However, that list excludes some important circumstances, including the threat of future physical or economic harm. If a defendant says to a complainant, "You will lose your job if you do not have sex with me", why is there no rebuttable presumption that says that the defendant did not believe in consent? If the threat is made, surely that goes to the heart of belief in consent. That is another area of confusion for juries.

Thirdly, I cannot accept that the conclusive presumptions in Clause 78 are anything but a route to injustice. Conclusive presumptions leave no safety valve for the facts of a particular case. If we cannot trust the jury to reach the right result on the basis of the facts before it, we have a problem. The conclusive presumptions would have the effect of telling juries to reach a particular conclusion. One could end up with a perverse result in certain circumstances. I do not believe that justice and fairness are served by conclusive presumptions. For those reasons, and for the reasons mentioned earlier, I believe that the Bill would be a better Bill without Clauses 77 and 78. I beg to move.

Lord Thomas of Gresford

My Lords, I do not propose to repeat everything that I said in relation to the earlier group of amendments. I simply add that it is my view—I do not claim infallibility or even particular expertise in this area—that the provisions we are discussing would be struck down in the courts as being incompatible with Article 6(2). I have given the reasons for that. If the Government wish to proceed with the provisions, I am sure that the first time that they come before a court there will be an appeal which may be taken all the way to this House.

Lord Campbell of Alloway: My Lords, on the assumption that the House is moving towards some form of reasonable test and removing the extant law which derives from Morgan, I still take the point that Clauses 77 and 78 as they stand are not acceptable and that serious consideration should be given to accepting Amendments Nos. 175 and 178 in lieu tabled by the noble Lord, Lord Thomas of Gresford. If I have the matter right—I hope that I shall be corrected if I have not—the noble and learned Lord, Lord Falconer of Thoroton, will consult on the position with a view to seeing whether some accommodation may be made. If that is right, I welcome it. One could reserve one's position until Third Reading. If, however—

Lord Falconer of Thoroton

My Lords, I am sorry to give the noble Lord bad news. He will not be able to reserve his position. I indicated clearly that we would discuss the question of reasonableness and I did not move my amendment as a result. However, I am afraid that I gave no such assurance in relation to the rebuttable presumptions. I do not want the noble Lord to be under any illusions that he should keep his powder dry.

Lord Campbell of Alloway

My Lords, I am very much obliged. If there were a Division, I should have to support the noble Lord, Lord Thomas of Gresford. I take the view that Clauses 77 and 78 as they stand are not acceptable.

Lord Falconer of Thoroton

My Lords, there are in effect three points with which I should deal. First, I refer to the point raised by the noble Baroness, Lady Noakes, that one should not have rebuttable presumptions at all. With respect we disagree with that proposition. We believe that in many cases the rebuttable presumption will in effect reflect the way in which a jury would address the issue. We also believe that having the rebuttable presumption, without any unfairness to the defendant, sends the clearest possible signal of the way in which the law deals with such issues.

I give a further example to that which I gave in answer to the points raised by the noble Lord, Lord Thomas of Gresford, today. I refer to people suffering from a very severe physical disability where there has not been consent and where there has been an inability to communicate. That is referred to in one of the examples relating to the rebuttable presumption. We think it right in those circumstances that the defendant should satisfy the jury on the balance of probabilities—where there was no consent and the victim could not communicate—of the basis of his belief that the victim consented. No other specific protection has been given. We think it right that there should be such protection. We think that there is a place for these rebuttable presumptions. They certainly do not lead to any injustice.

Secondly, I hope that the noble Baroness, Lady Noakes, will forgive my saying that she changed her position completely. Having said that there should not be any rebuttable presumptions of the kind we are discussing, she then said that there were not enough.

Baroness Noakes

My Lords, I said that if we were to have them, they had to be wider.

Lord Falconer of Thoroton

My Lords, we think that they have to be limited sensibly, which is what we have done.

We dealt with the issue of future economic or other harm being threatened and leading to sex. The difficulty with that is that such a wide range is covered. Something that might frighten someone in a particular condition might not frighten someone else. I gave various examples on the last day in Committee.

The third point with which I should deal is conclusive presumptions. The noble Baroness says that they are always unfair. Again, we had that debate on the previous occasion. She will be aware that the conclusive presumptions are in relation to where the defendant relies on what is said by a third party as a justification for believing in consent, and to impersonation. That is already the current law, so they apply in pretty limited circumstances.

In the light of what I have said, I hope that noble Lords will withdraw or not move their amendments.

5.30 p.m.

Baroness Noakes

My Lords, I thank all noble Lords who have spoken and the Minister for his reply. As I am sure he is aware, I shall not test the opinion of the House on the subject today. However, I would not like to leave him in any doubt: we regard the issue as important and outstanding. He indicated to my noble friend Lord Campbell of Alloway that he had no desire to debate it further in the discussions that he promised on the objective test, but I sincerely hope that he will entertain it in those discussions. Indeed, I have every confidence that he will do so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ackner

had given notice of his intention to move Amendment No. 10: Leave out Clause 1.

The noble and learned Lord said: My Lords, in view of the further discussions that will take place on Clause 1, I shall not move the amendment.

[Amendment No. 10 not moved.]

Clause 2 [Rape of a child under 13]:

[Amendments Nos. 11 and 12 not moved.]

Lord Falconer of Thoroton

moved Amendment No. 13: Transpose Clause 2 to after Clause 7.

The noble and learned Lord said: My Lords, government Amendments Nos. 13, 24 and 33 rearrange Clauses 1 to 8 into two groups. The first comprises the non-consensual offences, and the second all the offences specifically intended to protect those aged under 13. Government Amendments Nos. 42, 45, 47, 53, 69, 74, 98, 99, 100, 111, 112, 117, 123, 124, 125, 129 and 131 merge the causing and inciting limbs of the child sex, abuse of trust, mental disorder, inducements and care worker offences. They also add an inciting limb to Clause 8 to provide a specific offence for cases in which a child under 13 is incited to engage in sexual activity. The purpose is to simplify the drafting of the Bill and reduce duplicated wording.

The merging is made possible by the removal of Clause 76. In the introductory print of the Bill, Clause 76 had the effect of providing that a person could not be convicted of the offences to which it applied if the victim of such an offence was under 13. In those cases, one of the offences specifically designed to protect that age group was to be charged. However, Clause 76 applied only to the causing limbs of the groups of offences to which I referred, because it was intended that Clause 8 should be charged in cases involving the under-13s. However, Clause 76 did not apply to the inciting limbs of those offences, because there was no equivalent offence specifically for the under-13s. The reason for that is that the issue of consent is not relevant to incitement, as one cannot incite a person not to consent to sexual activity. "Causing" and "inciting" were therefore drafted as separate offences.

A government amendment in Committee removed Clause 76. We did so because it would have caused difficulties in cases where evidence that the child was under 13 emerged only during the trial. The removal of Clause 76 therefore made it possible to merge the causing and inciting limbs of the offences. However, as I have said, there was no specific offence in the Bill of inciting a child under 13, so Amendments Nos. 42 and 45 provide a specific offence to cover situations in which a child under 13 is incited to engage in sexual activity.

The amendments will mean that whenever the causing or inciting limbs of the offences on abuse of trust, mental disorder, care workers and so on are committed against a child under 13, a specific "under-13" offence will be available for the CPS to charge. That offence will provide a penalty of life imprisonment where penetration was caused or incited, or 14 years in other cases. However, unlike the position under the previous Clause 76, it will still be possible to secure a conviction under the abuse of the trust and mental disorder offences and so on where the evidence unexpectedly shows that the victim was under 13.

The amendments also have the effect of reducing duplicated wording in the Bill and the number of clauses. I apologise for the complicated explanation, but its purpose is to try to increase the simplicity of the Bill.

Amendment No. 116 was tabled by the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor of Hever. It proposes that, for the offence of inciting a person with a mental disorder or learning disability to engage in sexual activity, the maximum penalty should be life imprisonment where penetration is involved and 14 years in other cases. By deleting Clause 34 and amending Clause 33 to include incitement, government Amendments Nos. 111, 112 and 117 have the same effect as proposed in Amendment No. 116, so I invite those who tabled the amendment not to move it when the time comes.

I am afraid that I can offer no such comfort with respect to Amendments Nos. 43, 44, 51 and 52. Those have the effect of providing a maximum penalty of life imprisonment for the offences of causing a child under 13 to engage in sexual activity and inciting a child under 16 to engage in sexual activity. The Bill provides for a maximum penalty of life for those offences where the activity is penetrative; in other cases it is 14 years.

Although we regard the offences as serious criminal behaviour, they involve activity ranging from penetration to sexual kissing. I think it right to retain a penalty structure that recognises the most serious abuse that can be inflicted. However, providing for a maximum 14-year penalty for non-penetrative activity none the less recognises the extent of the harm caused in other cases. Fourteen years is the maximum determinate penalty that can be imposed and is itself very severe. Therefore, if the time comes, I shall seek to argue against Amendments Nos. 43, 44, 51 and 52. I beg to move.

Baroness Noakes

My Lords, I thank the Minister for introducing his amendments, which we support. I tabled Amendments Nos. 43, 44, 51, 52 and 116 to the group as probing amendments to draw attention to the disparity of sentencing between the incitement offences involving under-13s in Clauses 8 and 11, and that for mentally disordered offenders in Clause 34. In effect, the Government's solution deals with the points. I have some remaining concerns on parity of sentencing, but I shall raise them under a later group of amendments.

Lord Thomas of Gresford

My Lords, I was delighted to hear the Minister use the word simplicity. How can I resist the amendments in that case?

On Question, amendment agreed to.

Lord Ackner moved Amendment No. 14

After Clause 2, insert the following new clause—

"ANONYMITY OF DEFENDANT IN RAPE ETC. CASES The defendant in rape etc. cases shall enjoy the same right to anonymity as is enjoyed by the complainant.

The noble and learned Lord said: My Lords, since the Committee stage a short time ago, I have been informed by an entirely impeccable source of the following facts. A local GP, carrying on a one-man practice, was suddenly charged by the police with having raped a girl under 16. I am not sure whether or not she was his patient. He was arrested in front of his family and was remanded in custody. He remained in custody for more than a week. He was then granted bail on terms that he left the county and lived with his father, only crossing the county boundaries for the purpose of obtaining legal advice. Very recently, and before he was due to go back to court, he was informed by the police that all charges had been withdrawn.

That incident focused my attention on why we have removed anonymity from the defendant. A defendant was granted anonymity by Section 6 of the Sexual Offences (Amendment) Act 1976 and enjoyed such anonymity for 12 years until Section 158 of the Criminal Justice Act 1988 withdrew it.

The Government's cri de coeur has been that we must adjust any imbalance that exists between complainant and defendant in criminal trials. Here is an imbalance that calls vociferously for an adjustment. I know of no reason for depriving the defendant of that immunity. If he does not want it he can in terms resile from it, but if he wants it, he should be entitled to retain it. If one considers the damage that must have been done to the reputation of that general practitioner locally—he has not yet been able to resume his practice—and what has happened in a number of cases when the press reveal that false allegations have been withdrawn at an early or a late stage, one wonders why this protection has been removed. From such inquiries that I have made, I can find no sensible justification for so doing. I beg to move.

Baroness Kennedy of The Shaws

My Lords, there is a sensible justification. There is the principle of open justice in which we should believe, and that anonymity should be rare and only in the most exceptional circumstances drawn down on someone involved in the system. There is anonymity in relation to children and for rape victims because of the terrible stigma and the problem of getting women to come forward and going through the process.

I agree with the noble and learned Lord, Lord Ackner, to the extent that there should be anonymity until the point of charging. There has been ignominy and scarring on the lives of people when no charge has been forthcoming, but when in the run-up to a charge, there is huge speculation in the newspapers. That damages people's lives.

However, once someone is charged, it is important, as with any other serious crime, that there is no anonymity because, as the police have found from experience, it is one of the ways in which evidence comes forward. Witnesses come forward saying, "I was also raped by this man". It happens particularly in relation to cases involving medical practitioners. A charge brought against a medical practitioner unearths many other instances of abuse.

I strongly urge that this House does not consider allowing anonymity for anyone who is charged with rape. But the Government might look sensitively at the issue of whether someone should be covered with anonymity until the point of being charged.

5.45 p.m.

Baroness Walmsley

My Lords, from these Benches we support the amendment tabled by the noble and learned Lord, Lord Ackner. We strongly believe in equality under the law. In the exceptional circumstance referred to by the noble Baroness, Lady Kennedy, the complainant has anonymity. However, an exceptional amount of stigma attaches to a person who is accused and charged with rape, but who may eventually be proved innocent.

I raised this subject at Second Reading, as did the noble Lord, Lord Lucas. It is important when making new law that is designed to increase the number of sound convictions for rape that we are seen to be as fair to the defendant as we are to the complainant. I recall that the Minister in response said, "Well, if rapists; why not murderers or shoplifters?". The difference is the press. Murderers and shoplifters—unless they are movie stars—do not have the same amount of coverage from the press as possible rapists.

The noble Baroness, Lady Kennedy of The Shaws, said that others may come forward. If someone has a complaint, he or she should make it. It is rare for people to come forward when there is publicity. It is much more important that both the defendant and the complainant are treated equally in these exceptional circumstances. That is why we support the amendment.

Baroness Kennedy of The Shaws

My Lords, perhaps I may raise one matter. When talking about equality before the law, it is important to look beyond the courtroom door. We have come to understand that formal equality does not do justice. To create formal equality and not take account of the inequalities in our society beyond the courtroom door creates greater injustice. To treat as equal those who are unequal only creates further injustice.

The point at issue is that we created protection for women because without it women would not come forward. The reason that women will come forward when they see that a man has been charged with rape is because they are confident that they will not be so readily disbelieved if he is clearly doing it to other women. Almost every woman in those circumstances is most concerned to protect other women. The majority of people when interviewed say, "I want to make sure that it doesn't happen to anybody else".

The Liberal Democrats are getting it wrong. Formal equality has to be replaced with substantive equality. That is what will make the difference to women's lives.

Lord Campbell of Alloway

My Lords—

Baroness Walmsley

My Lords, first let me respond to the points made by the noble Baroness, Lady Kennedy. She said that justice does not end at the courtroom door. But that is why the defendant needs to have the same protection as the complainant. I am absolutely in favour of doing everything possible to encourage women to come forward when they have been raped. I have enormous sympathy for them. However, we cannot give them that encouragement at the expense of a possible lifetime stigma for an innocent person. That is why we support the amendment.

Baroness Noakes

My Lords, we have considerable sympathy with the amendment. The issue of the stigma associated with an accusation of rape is so important that there should be measures to protect defendants. Of course there is a question of balance, as there is in many matters arising from the Bill. In certain circumstances, there may be a need to get women to come forward about offences involving a defendant, but that must be balanced against the need for fairness to the defendant.

To my mind, the amendment before us does not deal with all the problems, because, as the noble Baroness, Lady Kennedy of the Shaws, pointed out, the biggest problems relate to the publicity that may occur before charge where it is much more difficult to provide remedy in the Bill. In recent cases involving Mr John Leslie and Mr and Mrs Neil Hamilton, they were subjected to appalling adverse publicity with no charges pressed. But there are people who will always say, "There is no smoke without fire". The intention behind the amendment is wholly laudable. I hope that the Government will say that they are prepared to consider introducing a provision to deal with the issue both pre-charge and during the course of a case, once it is decided to press a charge.

Lord Campbell of Alloway

My Lords, I apologise to the noble Baroness, Lady Walmsley; I did not realise that she was in the middle of her speech. I also apologise to the House.

The noble Baroness, Lady Kennedy of the Shaws, said that there was a form of inequality between the complainant and the accused. They both enjoy the presumption of innocence before they start.

The real problem is not tackled by the amendment as drafted. It is the pre-trial publicity that causes the great problems to which the noble and learned Lord, Lord Ackner, referred. I am sure that his amendment could be redrafted in some way clearly to cover that.

When charges are made and we get to trial, it is a question of reciprocity of treatment. If there is anonymity for the complainant, there should certainly be anonymity for the accused. My noble friend Lady Noakes is right: that should receive further government consideration. In certain circumstances, the damage done to a man or woman's reputation is terrific. At present, there is no way that one can escape those consequences.

Baroness Howarth of Breckland

My Lords, I am deeply tempted to support the amendment because I have worked with men who have been falsely accused, as well as with women who have not won their cases in court. However, I must stand today with the noble Baroness, Lady Kennedy, simply because it is the existence of anonymity for women that has brought more women forward. There is no doubt that other victims come forward when cases are being heard.

I was impressed by the earlier suggestion of the noble and learned Lord, Lord Lloyd, that those groups of women have enormous power and can so influence the press. My experience is that those women are emotionally frail. Although we are here debating in good, clear, intellectual terms with lawyers—I chance my arm again by speaking in this hornet's nest of lawyers—it is the sheer emotion, depression and subjection that those women experience that means that they do not come forward, but if someone else comes forward, they will clearly find some support.

However, I have sympathy with the amendment. I hope that the Government can find a place in the process that is less harmful to men who are innocent and not charged but does not provide anonymity to the assailant, because that is when we have a hope of more evidence being brought forward.

Baroness Mallalieu

My Lords, I, too, ask my noble and learned friend to respond to the spirit of the amendment and to consider what the Government can do to provide what is clearly needed: some protection for those who are not subsequently charged, as well as those who are awaiting trial. That is a real problem. As noble Lords have said, whether or not there is ultimately a charge, reputations are wrongly ruined and a great degree of suffering is caused. Perhaps my noble and learned friend will be sympathetic to what the House would like done.

Baroness Blotch

My Lords, like the noble Baroness, Lady Mallalieu, I hope that the Minister will take the amendment away and even consider the half-way house suggestion of anonymity beyond the point of charge. I prefer the amendment moved by the noble and learned Lord, Lord Ackner, but if that cannot be agreed to, some form of anonymity post-charge should be considered.

Some men in such situations are driven not just to the point of, but to actual, suicide. I cannot think of anything more dreadful to someone who is completely innocent and vexatiously charged with such a serious offence than having to live through the kind of publicity that goes with it. We should not underestimate the effect of that.

I am reminded of the noble Earl, Lord Russell, who for a long period—in all about a year, I think—stood by a young student who was vexatiously charged with a serious sex offence about two or three years after the offence was meant to have occurred. The charge turned out to be vexatious. The support given that young man by the noble Earl, Lord Russell, kept him sane throughout that period.

I personally know of a senior American military person who invited some friends to spend an evening and the night with his children. Two of the girls accused him of having entered their bedroom in the night with no clothes on and having touched them. He was given the choice of all that going public if a complaint was made and risking the downside of the attendant publicity, or returning to America out of uniform and out of the service as a senior officer.

He was innocent, but he took that choice: he went back to America; he could not convince anyone of his innocence. He was the father of two girls and held a respected position. He returned to America but, during the following two years, the girls admitted that they had cooked it up.

I agree with the noble Baroness, Lady Walmsley, who said that the damage done to such people lasts for their lifetime. I am fairly certain that the Minister will not accept the noble and learned Lord's amendment, but, along with many others, I implore him to think hard of some way to minimise adverse publicity on some innocent people. If they ultimately turn out to be guilty, they will receive all the publicity that they deserve. Protection is owed to those who are subject to cases, such as arise all too frequently, that are dropped before they come to court. As my noble friend Lady Noakes said, after all the attendant publicity, the rest of the world simply says, "There is no smoke without fire", and those people are damned and their personal life and, often, their working lives, destroyed.

The Lord Bishop of Chester

My Lords, I speak from this Bench in support of the amendment. The issue of emotional frailty cuts across both the accused and the victim. One can only imagine what it is like to be falsely accused, especially if one is in a prominent position. Occasionally I come across cases of clergy who are accused. The facts are often difficult to prove: in such cases, it is one person's word against another's. The point that more victims may come forward is important. One must weigh that carefully against the other considerations to which noble Lords have referred. On balance, the argument comes down in favour of granting the same rights of anonymity in principle to those who are accused. I support the amendment.

6 p.m.

Lord Lester of Herne Hill

My Lords, I was not intending to take part in the debate until I listened to speeches from all sides of the House.

I strongly support the way in which the Bill secures a better balance between the rights of defendants and the rights of victims in rape cases. That is entirely sensible. Introducing the objective elements into guilty intent is highly beneficial. Precisely because we have a fairer balance between the rights of defendants and those of victims, it is important that we also secure a fair balance between the rights of defendants and the rights of victims in rape cases so far as publicity and anonymity are concerned.

I fully take the general point made by the noble Baroness, Lady Kennedy of The Shaws, about the difference between formal equality and substantive equality, and open justice. Normally, I should use those concepts in a similar direction. However, I do not believe that this issue is about formal or substantive equality or open justice. No one is suggesting that the rights of alleged rape victims to anonymity should in any way be withdrawn. I entirely agree with the noble Baroness that that anonymity is crucial in encouraging women to come forward with complaints and to go all the way to trial.

The real question is: what harm does it do if we treat rape trials or the proceedings leading up to rape trials in much the same way as we treat issues that arise in the family courts? We do not regard open justice or anything of that kind as creating an absolute right to publicity for all stages of very intimate details of sexual and family matters in family courts. The same applies to the highly adversarial open system of criminal justice in this country, which often does not sufficiently respect the rights of third parties, children or other vulnerable people.

The amendment seeks to do something compassionate and sensible; that is, to provide greater protection for the defendant who turns out not to be guilty in a way that does not produce any detriment that I can see either to the public interest at large or to the alleged victim of the rape. For those reasons, I support the amendment, as others from all sides of the House have done.

Lord Lucas

My Lords, first, the arguments that have been raised by many noble Lords will also apply with equal force to some child sex offences, which we shall consider later in the Bill and which have a similar stigma for the people who are accused. When someone is accused of that, it is extremely difficult to rid oneself of it because there is absolutely no public acceptance by anyone, including the inmates of prisons, of child sex offences. However, there are sections of society who are prepared to regard as least some varieties of rape as excusable.

Secondly, in relation to a charge of rape against a defendant, will the noble and learned Lord tell us—if not now, by letter—whether publicity either before the charge or at the moment of charge frequently brings forward other people who wish to support the charge or to produce other instances of it? How frequent is that? If it is not that common, perhaps we could have a system by which the defendant had anonymity but that anonymity was removable by application to the court on the grounds that the prosecution wished to see whether other people wished to bring forward similar accusations. That would protect those more difficult sets of charges, such as an alleged child sex offence as a result of recovered memory syndrome within a family, where it is unlikely that there are other people outside who were similarly affected, as against abuse in a children's home, where one very much wants to know whether others have been affected. Such a flexible arrangement would be a way of getting over some of the objections.

Lord Falconer of Thoroton

My Lords, a charge of a sexual offence that is not proved can be extraordinarily damaging. The amendment deals only with the position post-charge, not the position pre-charge. I shall deal with the position post-charge first and then with the position pre-charge.

My noble friend Lady Kennedy of The Shaws described the starting point exactly. It remains a principle of our criminal justice system that it is open and transparent. People must be able to see what is going on in a criminal case. Introducing anonymity for defendants for those categories of cases could reduce our chances of bringing more offenders to justice and might well impact on public confidence in the system; and we would risk giving out mixed messages, especially within the context of needing to do more for victims and witnesses.

As noble Lords know, anonymity for defendants was granted in 1976. The effect of that was considered by Mrs Justice Heilbron's committee—the very same Mrs Justice Heilbron whom the noble and learned Lord, Lord Ackner, relied on to justify his position in terms of not introducing an objective element in relation to mens rea for rape. Mrs Justice Heilbron recommended that anonymity be repealed and the government of the day acted in relation to that proposal. She gave a number of arguments, one of which involved the extent to which anonymity for the victim encouraged victims to come forward while withdrawing anonymity for the defendant would in certain cases help other victims of that defendant to come forward as well. She considered that delicate balance and recommended after the period of anonymity that it he withdrawn.

We believe that the law presently strikes a proper balance between the principle of open justice, in which the public has the wider interest, and the very important need to ensure that victims of sexual offences are encouraged to report such crimes.

Baroness Walmsley

My Lords, am I correct in thinking that Mrs Justice Heilbron's committee sat more than 30 years ago, at a time when the media's coverage of such cases was not as extensive or as headline-making—colourful, perhaps we should say—as it is today?

Lord Falconer of Thoroton

My Lords, Mrs Justice Heilbron's committee sat at the end of the 1970s, which is close enough to 30 years ago. I suspect that the noble Baroness is wrong if she is suggesting that the press in the 1970s were not vigorously and salaciously reporting sex crime cases. I have absolutely no doubt that the press in the 1970s had just as much interest in reporting those cases as they do now, although I cannot give a scientific assessment of that.

The rationale for protecting victims alone is not only to protect them from hurtful publicity but also to encourage other victims to come forward to report the offence and co-operate with the prosecution. Those arguments do not apply to the accused. Even in the case of the complainant, the court has the power to lift the prohibition on publicity if it is necessary to encourage witnesses to come forward and the defence is likely to be prejudiced if the anonymity of a complainant stays in place.

The noble Baroness, Lady Kennedy of The Shaws, was absolutely right when she said that talking about equality of arms is completely misleading. Equality of arms means that when the prosecution and defence are in court, there must he a level playing field between them. However, that does not mean that at every stage of proceedings they must be treated differently. I do not believe that anyone in the House would doubt that anonymity for victims is entirely appropriate as a means of encouraging people to complain.

Singling out defendants in cases of sexual offences, as is being proposed, might also give the impression that there exists a presumption of doubt about the credibility of the complainant in sex offence cases which does not exist with other kinds of offences. That could hamper efforts to encourage more victims—mainly women—to come forward to report sex offences committed against them, and it would be unwelcome to risk implying that such a change was being made because complainants in such cases were making false or malicious accusations.

We think it would be wrong in terms of promoting proper prosecution of these cases to single them out as those where there is a special protection for the defendant. We have considered the matter carefully but we do not think it would be right to give anonymity after charge.

The Association of Chief Police Officers has issued all police forces with guidance on the pre-charge position applying to all offences. The guidance makes it clear that anyone tinder investigation but not charged should not be named or have details provided that might lead to their identification before they are charged.

Lord Ackner

My Lords, the case I gave was an example of the flagrant way the press deals with the situation. In the local journal—the Advertiser I think it was called —all the details I have given and more were provided. Where does he get this protection from?

The noble Baroness, Lady Kennedy, did not seem to think there was any protection pre-trial, hence her modest suggestion. Am I to understand that the noble and learned Lord rejects even that?

Lord Falconer of Thoroton

My Lords, with respect to the noble and learned Lord, I understood him to be saying that there was a complaint made against the general practitioner, a charge was brought and the defendant was held in custody for a week. This was presumably imposed by a court, which must mean there was a charge. If a charge had been imposed, then all that can be reported is that which was referred to in court and that which would not prejudice a fair trial. I am not sure what particular part of the process the noble and learned Lord is complaining about—it is all post-charge as I understand the noble and learned Lord's case.

Lord Ackner

My Lords, I cannot be categoric on that because I am anxious that the person concerned at least has anonymity in this Chamber. However, there is nothing to stop the public being aware of what has happened. The wife herself could have complained.

Lord Falconer of Thoroton

My Lords, in addition to the guidance issued by ACPO, the Attorney-General, speaking at an event earlier this year, acknowledged the existence of the Press Complaints Commission's code of practice and said that he had issued further guidance to editors.

Baroness Kennedy of The Shaws

My Lords, I thank the Minister for giving way. The editor of one of our tabloid newspapers recently gave evidence before the Home Office Select Committee and said that her newspaper had paid money to police officers for information. It is well known that there are leaks from the police, particularly when the people involved have a public profile or an eminent position, whatever it might be. There are frequently leaks because it makes for good tabloid coverage.

Whatever the guidance is from the police and the Press Complaints Commission or from the Attorney-General, none of it works. There needs to be pre-charging anonymity. Once a charge is made, it should go to the traditional position. Perhaps the Minister might consider anonymity before a charge is made. This is because of the terrible impact on lives as has been described.

Lord Falconer of Thoroton

My Lords, what the noble Baroness describes is a practice between the police and the press not just in relation to sex offences but in relation to all investigations. It is made absolutely clear by the Association of Chief Police Officers and by my right honourable friend the Attorney-General that this should not happen. This is not the Bill in which to introduce any provision to cover this sort of matter. It is a matter for consideration in another context and in relation to another Bill.

6.15 p.m.

Lord Lester of Herne Hill

My Lords, I thank the Minister for giving way. Since we are dealing with this Bill and sexual offences in particular, what policy objection could there be to adopting the approach of the noble baroness, Lady Kennedy, and giving statutory safeguards for the pre-trial stage but not for the trial stage? Given that the Government's position is "it is happening in practice already"—or should be happening according to guidelines although that is not what always happens—what possible objection would there be to an amendment that dealt only with pre-trial in the context of this Bill?

Lord Falconer of Thoroton

My Lords, first, I do not want to single out a particular sort of offence. Secondly, the question of pre-charge anonymity has not been canvassed with the wide range of people who should be canvassed before any such change is made. For those reasons I respectfully submit it is not remotely appropriate to deal with it in this Bill.

Baroness Blatch

My Lords, anonymity for women has been singled out for a particular sort of offence so how can that be used as an argument against anonymity for men?

Lord Falconer of Thoroton

My Lords, for reasons that I have indicated, which are special to sexual offences, the reasoning advanced by the noble Baroness, Lady Kennedy, applies to all charges.

With the greatest of respect, there is no analogy to be drawn with the fact that people who are complainants in sexual offences have anonymity and the fact that in relation to the pre-charge position relating to sexual offences there must be a special rule.

Baroness Howarth of Breckland

My Lords, I am in total agreement with what the Minister has said. I am more familiar with guidance in the social care field and I wonder whether the Home Office could issue similar guidance? I do not know what kind of remedies there are if police officers leak information and whether that is a disciplinary offence. We could look at whether guidance could be consulted upon, which is the usual process, because as much as I want to speak for victims—I spend my life working with them—I also know the terrible damage that happens in these circumstances.

Lord Falconer of Thoroton

My Lords, again the right course is for me to send noble Lords a copy of the guidance issued by ACPO. I think it is, as the noble Baroness, Lady Howarth implies, a matter for guidance—

The Lord Bishop of Chester

My Lords, the noble and learned Lord referred to the guidance issued last November. Soon after that a well-known entertainer, Matthew Kelly, was dragged through the papers in an unfortunate way. He was dragged from his pantomime performance and it was in the press within five minutes. This was on the back of the guidance being issued. I happen to know this because his wife is involved in charitable affairs in my diocese. I know the impact on him and his family. Unless the guidance the Association of Chief Police Officers has issued is given some teeth, it is not worth the paper it is written on.

Lord Falconer of Thoroton

My Lords, this is not an appropriate issue to be dealt with simply in relation to sex offences. I respectfully submit that it is an issue to be dealt with by reference to guidance and not by the creation of what would be a special offence, which is what is being proposed here.

Lord Lucas

My Lords, this is not the procedure the Government are following in relation to Clause 73 in this Bill. That clause introduces a new offence of violating a corpse without, as far as I can see, tackling the many other ways people can violate the corpse or memory of somebody. Indeed, it is an offence for which the noble Lord could produce no actual instances. In this Bill, the Government are introducing something which is special to sexual offences and which does not relate to the wider and more common instances of similar offences—indeed, the question of the lady who was covered in bacon is in the news again today.

The Government are already dealing with an offence which is a general one but introducing it in this Bill as a specific offence just because this Bill is limited to sexual offences, in this case involving a corpse. If the Government are doing it in Clause 73, they can do it elsewhere.

Lord Falconer of Thoroton

My Lords, sexual penetration of a corpse should be appropriately dealt with in the Sexual Offences Bill. What people are talking about here is the practice in relation to pre-charge publicity and where information for pre-charge publicity comes to the press. That is a much bigger topic than simply in relation to sex offences.

The amendment as tabled deals only with the post-charge position. We believe it wrong that anonymity should be given to defendants in relation to that. In relation to the pre-charge position, the amendment raises issues much wider than the Sex Offences Bill which we respectfully submit are better dealt with by guidance.

I hope that, in the light of what I have said, the noble and learned Lord will feel able to withdraw his amendment.

Lord Ackner

My Lords, my noble and learned friend has done nothing to encourage me to withdraw my amendment. For 12 years this anonymity was enjoyed. I have heard nothing to suggest that during those 12 years there were occasions when it worked to the disadvantage of justice. I have not limited my request to pre-trial because pre-trial is only part of the issue.

If there had been a ray of generosity, which one sometimes associates with my noble and learned friend, and he was prepared to give way on that, I would reluctantly have withdrawn my amendment. But as I cannot achieve even that, I am forced to ask for that which I have tabled. It may perhaps be a novel occasion for him, but I ask to test the opinion of the House.

6.21 p.m.

On Question, Whether the said amendment (No. 14) shall be agreed to?

Their Lordships divided: Contents, 109; Not-Contents, 105.

Division No. 1
Ackner, L. [Teller] Elton, L.
Addington, L. Falkland, V.
Alexander of Weedon, L. Fearn, L.
Alton of Liverpool, L. Flather, B.
Anelay of St Johns, B. Gardner of Parkes, B.
Astor, V. Geddes, L.
Astor of Hever, L. Glentoran, L.
Avebury, L. Goodhart, L.
Barker, B. Griffiths of Fforestfach, L.
Beaumont of Whitley, L. Hamwee, B.
Blatch, B. Hanham, B.
Bowness, L. Hanningfield, L.
Brooke of Sutton Mandeville, L. Harris of Richmond, B.
Brougham and Vaux, L. Henley, L.
Burnham, L. Hooson, L.
Buscombe, B. Lester of Herne Hill, L.
Byford, B. Lindsay, E.
Caithness, E. Linklater of Butterstone, B.
Carlisle of Bucklow, L. Livsey of Talgarth, L.
Chester, Bp. Lucas, L.
Clement-Jones, L. Luke, L.
Colwyn, L. Lyell, L.
Cope of Berkeley, L. McNally, L.
Cox, B. Maddock, B.
Craigavon, V. Mallalieu, B.
Crathorne, L. Manchester, Bp.
Dahrendorf, L. Mancroft, L.
Darcy de Knayth, B. Mar and Kellie, E.
Dixon-Smith, L. Marlesford, L.
Masham of Ilton, B. Scott of Needham Market, B.
Mayhew of Twysden, L. Seccombe, B.
Methuen, L. Sharp of Guildford, B.
Miller of Chilthorne Domer, B. Sheldon, L.
Monro of Langholm, L. Shutt of Greetland, L.
Monson, L. Smith of Clifton, L.
Montrose, D. Soulsby of Swaffham Prior, L.
Newby, L. Stoddart of Swindon, L.
Newton of Braintree, L. Taverne, L.
Noakes, B. Thomas of Gresford, L.
Northesk, E. Thomas of Walliswood, B.
Northover, B. Thomson of Monifieth, L.
Norton of Louth, L. Tope, L.
Oakeshott of Seagrove Bay, L. Tordoff, L.
Onslow, E. Tugendhat, L.
Pearson of Rannoch, L. Ullswater, V.
Pilkington of Oxenford, L. Waddington, L.
Plumb, L. Wakeham, L.
Razzall, L. Wallace of Saltaire, L.
Rennard, L. Walmsley, B.
Renton, L. Watson of Richmond, L.
Rodgers of Quarry Bank, L. Weatherill, L.
Roper, L. Wedderburn of Charlton, L.
Saltoun of Abernethy, Ly. [Teller] Wilcox, B.
Williams of Crosby, B.
Sandberg, L. Williamson of Horton. L.
Ahmed, L. Hardy of Wath, L.
Alli, L. Harris of Haringey, L.
Amos, B. Haskel, L.
Andrews, B. Hattersley, L.
Archer of Sandwell, L. Hayman, B.
Ashton of Upholland, B. Hollis of Heigham, B.
Bach, L. Howarth of Breckland, B.
Barnett, L. Howe of Idlicote, B.
Bassam of Brighton, L. Howells of St. Davids, B.
Berkeley, L. Howie of Troon, L.
Bernstein of Craigweil, L. Hoyle, L.
Billingham, B. Hughes of Woodside, L.
Blackstone, B. Hunt of Chesterton, L.
Borrie, L. Hunt of Kings Heath, L.
Bragg, L. Irvine of Lairg, L. (Lord Chancellor)
Brooke of Alverthorpe, L.
Brookman, L. Janner of Braunstone, L.
Campbell-Savours, L. Jay of Paddington, B.
Carter, L. Jones, L.
Christopher, L. Kennedy of The Shaws, B.
Clark of Windermere, L. Kirkhill, L.
Clinton-Davis, L. Layard, L.
Corbett of Castle Vale, L. Lea of Crondall, L.
Crawley, B. Lipsey, L.
David, B. Lloyd of Berwick, L.
Davies of Coity, L. Lofthouse of Pontefract, L.
Davies of Oldham, L. McIntosh of Haringey, L. [Teller]
Desai, L.
Dixon, L. McIntosh of Hudnall, B.
Dormand of Easington, L. MacKenzie of Culkein, L.
Dubs, L. Mackenzie of Framwellgate, L.
Eatwell, L. Mar, C.
Elder, L. Mason of Barnsley, L.
Evans of Parkside, L. Merlyn-Rees, L.
Evans of Temple Guiting, L. Mitchell, L.
Falconer of Thoroton, L. Morgan, L.
Farrington of Ribbleton, B. Morris of Manchester, L.
Faulkner of Worcester, L. Palmer, L.
Filkin, L. Patel, L.
Fyfe of Fairfield, L. Patel of Blackburn, L.
Gale, B. Pitkeathley, B.
Goldsmith, L. Ramsay of Cartvale, B.
Gordon of Strathblane, L. Randall of St. Budeaux, L.
Goudie, B. Renwick of Clifton, L.
Gould of Potternewton, B. Rooker, L.
Graham of Edmonton, L. Sawyer, L.
Grocott, L. [Teller] Simon, V.
Smith of Leigh, L. Whitaker, B.
Taylor of Blackburn, L. Whitty, L.
Temple-Morris, L. Wilkins, B.
Thornton, B. Williams of Elvel, L.
Tomlinson, L. Williams of Mostyn, L. (Lord Privy Seal)
Turnberg, L.
Walker of Doncaster, L. Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

6.32 p.m.

Clause 3 [Assault by penetration]:

[Amendments Nos. 14A to 22 not moved.]

Clause 4 [Assault of a child under 13 by penetration]:

[Amendment No. 23 not moved.]

Lord Falconer of Thoroton

moved Amendment No. 24: Transpose Clause 4 to after Clause 7.

On Question, amendment agreed to.

Clause 5 [Sexual assault]:

[Amendments Nos. 25 to 32 not moved.]

Clause 6 [Sexual assault of a child under 13]:

Lord Falconer of Thoroton

moved Amendment No. 33: Transpose Clause 6 to after Clause 7.

On Question, amendment agreed to.

Clause 7 [Causing a person to engage in sexual activity without consent]:

[Amendments Nos. 34 to 41 not moved.]

Clause 8 [Causing a child under 13 to engage in sexual activity]:

Lord Falconer of Thoroton

moved Amendment No. 42: Page 4, line 18, after "causes" insert "or incites

On Question, amendment agreed to.

[Amendments Nos. 43 and 44 not moved.]

Lord Falconer of Thoroton

moved Amendment No. 45: Page 4, line 25, after "caused" insert "or incited

On Question, amendment agreed to.

Clause 9 [Sexual activity with a child]:

Lord Falconer of Thoroton

moved Amendment No. 46: Page 4, line 36, leave out paragraph (c).

The noble and learned Lord said: My Lords, the offences in Clauses 9 and 10 relate ostensibly to consensual activity with a child aged under 16. Our policy is that children under 13 cannot consent to sexual activity in any circumstances. Therefore, where the child was under 13 we would expect charges to be brought under one of the specific child under 13 offences.

Following the deletion of Clause 76 of the introductory print (which made specific provisions relating to the offences to be charged where the child was under 13) the wording of Clauses 9 and 10 has been amended. They provide that the prosecution must prove that the defendant did not reasonably believe that the victim was 16 or over at the time of the sexual activity. Now that the clauses may apply where the victim was under 13, the amendment made in Committee at paragraph (d) provides that where the child was under 13 at the time of the alleged offence, the mistaken belief in age provisions do not apply.

The new paragraph (d) that was agreed to in Committee makes paragraph (c) (which provides that the victim must be under 16) redundant. The Government amendments are purely a tidying-up exercise to remove the redundant paragraph (c) from each clause. I beg to move.

On Question, amendment agreed to.

Clause 10 [Causing a child to engage in sexual activity]:

Lord Falconer of Thoroton

moved Amendment No. 47: Page 5, line 3, after "causes" insert "or incites

On Question, amendment agreed to.

Lord Falconer of Thoroton

moved Amendment No. 48: Page 5, line 5, leave out paragraph (c).

On Question, amendment agreed to.

Baroness Noakes

moved Amendment No. 49: Page 5, line 11, after "indictment" insert— (a) where subsection (3) applies, to imprisonment for life; (b) in any other case

The noble Baroness said: My Lords, in moving Amendment No. 49, I shall speak also to Amendments Nos. 50, 54 and 55 in the group. Amendments Nos. 49 and 50 amend the sentencing provisions of Clause 10, which now covers both causing and inciting a child to engage in sexual activity, so that the sentence can be life where penetration of a child under 13 is involved. The amendments align the sentence both with that under Clause 8, which deals exclusively with under-13s, and with that under Clause 33, where a mentally disordered person who lacks capacity to consent is involved.

Would the Minister explain why it is possible for an offence involving a child under 13 to carry a life sentence under Clause 8, but only 14 years under Clause 10? I do not believe that we should create the possibility that an offence involving a child under 13 could be tried where the sentence is the lesser one. That should not be an option open to prosecutors. I hope that the Minister will explain why, given the offences under Clause 8, it is necessary to include under-13s within the ambit of the Clause 10 offence. If I had been more focused when I tabled the amendments I should also have tabled a probing amendment to draw attention to a similar disparity between Clauses 6 and 9. As the same point of principle arises, I hope that the Minister will cover that as well.

Amendments Nos. 54 and 55 seek to amend the sentencing provision of Clauses 12 and 13 so that for under-13s the sentence will be aligned with that for mentally-disordered persons who lack capacity to consent under Clauses 35 and 36.

Under Clauses 35 and 36 the offence is always triable on indictment and carries a possible 10-year sentence. Under Clauses 12 and 13 there is an option of summary conviction carrying six months or a fine. We do not think that that is right where under-13s are involved. I believe that the Government's approach to the Bill is that where a child is under 13 the question of consent should not arise. Why is it that a person who cannot consent under Clauses 35 and 36 receives greater protection than a child under Clauses 12 and 13? Why is it possible that an offence involving an under-13 could be tried summarily with its much lower sentence? Our amendments seek to eliminate disparity and ensure that offences involving under-13s are always treated as serious offences. I beg to move.

Baroness Blatch

My Lords, my noble friend's amendment deals with the internal inconsistency of the Bill and the comparisons between the penalty for causing a child to engage in sexual activity and that for causing a person with a mental disorder to do the same thing. I rise not to take issue with my noble friend but simply to take this opportunity to point out that all the child sex offences in Clauses 9 to 13, welcome though they are, are limited in their effect where the victim—the child—will not make a complaint to the police against the perpetrator or will not give evidence.

We know that all too often children are frightened to get involved in a prosecution. The perpetrator may have threatened all kinds of dire consequences or at least have created an air of intimidation. Then there are cases where the child will not give evidence because that child believes that she is in love with the perpetrator. An under-age child may be engaging in frequent sexual intercourse with an older person but if the only source of evidence about the intercourse is the child herself, the police often say that they are powerless to act.

I was written to some weeks ago by my friend Mr Andrew Turner, MP for the Isle of Wight. He had a case in his constituency of an under-aged girl who was sexually involved with two males. Hampshire Constabulary said that no allegation of criminal offences was made by the victim, and in their words where that is not forthcoming the police are limited in the action that can be taken. Even if the parents consent to a medical examination to obtain DNA evidence, if the child refuses to allow police surgeons to examine her there is nothing they can do.

Hampshire Constabulary also provided Mr Turner with a series of similar cases. In autumn 2000, police officers strongly suspected that a 14 year-old girl was having a sexual relationship with a 32 year-old man but the girl was unwilling to be interviewed. She was eventually taken into care by social services. Once away from the influence of that man she indicated a willingness to co-operate with the police. However, before she could be interviewed, the man traced her and sent her letters that persuaded her not to say anything. The man was eventually prosecuted for child abduction, to which he pleaded guilty. He admitted that there was a relationship but refused to admit that it was sexual.

In another case, officers investigated cases of unlawful sexual intercourse involving a registered sex offender and several young girls under 16. The girls in that case refused to co-operate with the police and social services, considering themselves, again, to be in love with the offender so an application to obtain a sex offender's order against him failed and the man was prosecuted for abduction. In each case the prosecution was for abduction, not a sexual offence. The reality of what he did was therefore not recognised in the proceedings or the sentence.

More and more legal duties are being placed on parents these days. They are told, for example, that they will be gaoled for not sending their children to school, but there is no corresponding increase in parents' legal powers or, indeed, in the support they can expect from the police and social services when their children become unruly despite their best efforts.

On 16th May this year the Daily Mail reported a case in the area from which I come. It was the case of 15 year-old Vicky Osborne who left home and moved in with 17 year-old Sam Hayes, a lesbian who has served three months for beating up a woman in a row over drugs money. The two freely admit that they sleep together yet the police say that they cannot act because Vicky has made no complaint to them. Astonishingly, when the parents turned to social services for help they were told that there were no grounds to warrant Vicky's forcible removal from Sam's care. Milton Keynes social services stated: There is no evidence to suggest that Vicky is at risk",

albeit that taking that attitude they were condoning illegal behaviour. The age of consent under our law is 16. The older party to this sexual relationship is committing a sexual offence against Vicky, yet social services saw nothing wrong with that situation.

Where a sexual relationship with a minor is being condoned by the local social services, it makes a mockery of the law and cocks a snook at the girl's parents who are trying to do the best for their daughter. In that type of situation, can parents take any comfort from these clauses in the Bill? Are the offences in Clauses 9 to 13 any easier to prosecute than the current offences of unlawful sexual intercourse with a minor and sexual assault? Are any of the later provisions of the Bill, such as the sexual offences prevention orders or the risk of sexual harm orders, likely to be of help in such situations?

I was being opportunist because these issues relate very much to this part of the Bill. Where my noble friend is arguing for consistency I am arguing for effective prosecution and support for parents who are trying to do the best by their children.

6.45 p.m.

Lord Falconer of Thoroton

My Lords, the amendment moved by the noble Baroness, Lady Noakes, would provide a higher penalty in relation to certain offences and would require the case to be dealt with only at the Crown Court for certain of the child sex offences when the victim is aged under 13.

Amendments Nos. 49 and 50 would introduce a penalty of life rather than 14 years for the offence of causing a child to engage in sexual activity where the activity involves penetration of or by a child aged under 13. We are obviously agreed on the need to ensure that sufficiently heavy penalties are available when sexual offences are committed against children of such an age.

However, as the noble Baroness pointed out—indeed, it is the foundation of her case—Clause 8 is already available for the Crown Prosecution Service to charge in these circumstances and carries precisely the penalties proposed in Amendments Nos. 49 and 50. We think it is important for the CPS to charge the Clause 8 offence rather than the Clause 10 offence where the victim is under 13, so that not only are the higher penalties available, but the defendant, if found guilty, will have on his criminal record the offence of causing a child under 13 to engage in sexual activity.

As regards the provisions which the noble Baroness seeks to amend, it is possible for there to be victims under 13, as is explicitly acknowledged in the clause, but those would be cases where we think that a mistake had been made about the age which became apparent only during the course of the proceedings. We think that in those circumstances, where one is dealing with cases on the margins, the 14-year penalty is sufficient.

Amendments Nos. 54 and 55 propose that cases of engaging in sexual activity in the presence of a child and causing a child to watch sexual activity should be dealt with on indictment only with a maximum penalty of 10 years when the offence involves a child under 13. We equally have no doubt that the offences in question merit the intervention of the criminal law. As I said, in a number of these cases one has to recognise that they involve a range of sexual activity which a person can be forced to watch or caused to watch, ranging from penetration—which plainly would merit the intervention of the Crown Court—right through to what might be, by comparison with penetration, quite minor sexual activity. We think that in those cases, as in any other, the option of summary trial should be retained to allow flexibility in recognition of the range of behaviour involved in the types of offences to which we refer. We do not believe it is right that that option should be taken away from the Crown Prosecution Service.

The noble Baroness, Lady Blatch, described her intervention as somewhat opportunist. With the greatest respect, I have to say that this has absolutely nothing to do with any of the amendments we are discussing. However, we want to make these offences effective and we believe that we have made them more effective in many respects than the existing law in providing proper protection for children. However, there will need to be some evidence in every case, although not necessarily the evidence of the victim. There will be causes where evidence can be brought from sources other than the victim—for example, in relation to what was said or recorded by others. We believe that the Bill's provisions are effective and strike the right balance between the need for proper evidence and the need for the proper protection of children.

Baroness Noakes

My Lords, the Minister has not answered my points. As to Clause 10, he said that Clause 8 would normally be used but if there were some kind of mistake, 14 years was all right. Where the child was under 13, there should never be the possibility of a lesser penalty than the one in Clause 8.

I invite the Minister to examine the relationship between Clauses 12 and 13 and Clauses 35 and 36, which deal with mentally disordered persons who lack the capacity to refuse. In the case of under-13s, we are effectively dealing with the same situation because the issue of consent is wholly irrelevant. A range of behaviours can cause a charge to be brought under Clauses 35 and 36 in relation to mentally disordered persons, with a set penalty. With children, there is the option of a lesser penalty. I do not understand that provision in respect of under-13s.

I hope that the Minister will think again. I will not press the amendment but will return to the issue on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 50 not moved.]

Clause 11 [Inciting a child to engage in sexual activity]:

[Amendments Nos. 51 and 52 not moved.]

Lord Falconer of Thoroton

moved Amendment No. 53: Leave out Clause 11.

On Question, amendment agreed to.

Clause 12 [Engaging in sexual activity in the presence of a child]:

[Amendment No. 54 not moved.]

Clause 13 [Causing a child to watch a sexual act]:

[Amendment No. 55 not moved.]

Clause 14 [Child sex offences committed by children or young persons]:

Baroness Walmsley

moved Amendment No. 56: Leave out Clause 14.

The noble Baroness said: My Lords, the result of this amendment would be that under-18s could not commit the relatively minor offences set out in Clauses 9 to 13—the sexual touching of a child; causing, inciting or engaging in sex in the presence of a child; or causing a child age 13 to 15 to watch sexual activity.

The amendment focuses on the Bill's most ridiculous aspect. Where the activity is consensual, the normal behaviour of probably half the adolescent population is being criminalised. The penalties in Clause 14(2) are neither necessary, justified nor proportionate. One of the problems with Clauses 14 and 9 is that they take no account of consent. Whether or not there is consent, their provisions are not the best way of dealing with sexual activity between young people.

During the passage of the Bill through your Lordships' House, I have pressed for children to be treated differently, for two reasons. One is the matter of culpability for their actions. Children's moral values are not yet fully formed. They experiment. That is a normal part of growing up. Children are very much influenced by adults and what they see around them. Their attitudes and behaviour are almost always strongly influenced by the opinions of adults and the way that adults behave towards them.

Children who commit offences such as sexual touching without the consent of their child victim are damaged children themselves. Many have suffered sexual abuse. A large majority have suffered physical and emotional violence and neglect.

The second reason is that children respond even better to treatment and counselling than adults, partly because their attitudes are not yet fixed. A large amount of research has shown how well children respond to counselling, which is why it is so important to provide it. Counselling can transform the lives of young offenders and. most important, protect other children who might otherwise be abused by them in the future. It is all about child protection.

I draw your Lordships' attention to the Long Title: A Bill … to make new provision about sexual offences, their prevention and the protection of children from harm from other sexual acts, and for connected purposes".

It seems strange that all my attempts to put into the Bill measures to ensure that children who commit sexual offences are entitled to treatment rather than penalties—albeit lower than those for adults—have failed. I have been told that such measures are beyond the scope of the Bill. They are not. The Bill is about effective prevention and the protection of children and their potential victims.

We all know the truth of the old saying that one cannot fit a square peg into a round hole. If one can, either the peg or the hole is the wrong shape. The Government, in drafting the Bill so narrowly, have crafted the wrong-shaped hole, into which I and others are vainly trying to squeeze something that is absolutely vital—the proper treatment of young sex offenders.

The Government claim that they always act on the advice of experts. In matters of scientific importance such as CJD, foot and mouth disease, MMR vaccination and GM crops, the Government make a big thing about doing so. During the passage of the Bill, the noble and learned Lord the Minister has listened to experts such as the noble Lords, Lord Rix and Lord Adebowale, speak about people with physical and mental disabilities. Why will the Minister not listen to the experts on children? The noble Baronesses, Lady Howarth and Lady Gould of Potternewton, the noble Earl, Lord Listowel, and many others have given us the benefit of their years of experience in advising young people—yet the Government are still not listening. Instead, they are trying to make a Bill for adults fit children by sticking in a few clauses with lower penalties.

Clause 14 is faulty because it will have unintended consequences for teenagers indulging in relatively harmless experimentation. Nor does it provide the most effective method of ensuring prevention and the protection of children from harm".

I beg to move.

Baroness Noakes

My Lords, I have considerable sympathy with Amendment No. 56. Throughout our consideration of the Bill, I have been concerned about the way that sexual activity has been criminalised. In this instance the issue is teenage sex but elsewhere the Bill addresses sex between persons who are mentally disordered. It continues to trouble me that we must rest on prosecutorial discretion in determining which sexual activities are to be treated as criminal.

Some of your Lordships will view the amendment as undermining the age of consent but it is already undermined—day in, day out—by wholly consensual sexual intercourse involving teenagers. We cannot turn the clock back to a golden age, if one ever existed, in which teenagers saved themselves to their 16th birthday. The world has moved on and we may well reflect that in our laws.

We should remember also that while child offences include full sexual intercourse, they extend to a lot of other activities such as kissing, heavy petting and looking at dirty magazines. I wonder if there are any children under 16 who do not engage in one or more of those activities. The problem is how to reflect the realities of teenage life in our laws. We struggled to do so in Committee and are still struggling.

I am clear that we do not want to create a blanket exception for all sexual activity involving under-18s because some young people are very dangerous sexually. They can and do abuse other children and the law should be fully capable of dealing with them. I fully accept the comment by the noble Baroness, Lady Walmsley, that other interventions are likely to be the most important when dealing with such children.

The amendment does not affect the crimes under Clauses 1 to 8. Therefore sexual activity with under 13 year-olds will remain a crime, as will non-consensual activity with 13 to 15 year-olds. I am conscious that that may well involve a 13 to 15 year-old giving evidence. That has drawbacks. However, as always with the Bill, it is a question of balance. On the one side, there is the possibility of emotional trauma for a 13 to 15 year-old having to give evidence; and, on the other, that a wholly consensual and normal activity involving teenagers will be dragged within the law, possibly at the insistence of over-zealous parents. On balance, I find myself in favour of the amendment.

However, I have a problem with it. The amendment would remove the possibility of prosecution under Clause 12 or 13 where under 13 year-olds were involved. Clause 12 covers engaging in sexual activity in the presence of a child; Clause 13 covers causing a child to watch a sexual act. I do not think that that is right. For that reason, I am unable today to support the amendment but I certainly support the principles underlying the amendment.

7 p.m.

Baroness Howarth of Breckland

My Lords, I support the intent underlying the amendment. On the previous occasion when we discussed the issue, the Minister kindly wrote to the noble Lord, Lord Campbell, regarding a question that I raised about the treatment of young people. I cannot quote from the letter because I do not have it in front of me; the Minister will put me right. The general gist of the letter was that research at present does not indicate what we can do in order to provide treatment and, therefore, a working party was being set up to consider the implications.

I took a copy of the letter to the steering group of the Stop It Now campaign which I chair. The group includes Barnardo's, Childline, the NSPCC and the Faithfull Foundation—to name but a few. They all commented on the wide range of work. Indeed, Barnardo's already has eight projects working with young people who abuse. The NSPCC has projects. The Faithfull Foundation has led the way in some of this thinking.

It is important to recognise that treatment is the way forward for those young people, while not criminalising normal sexual developmental behaviour. I how again to the lawyers' understanding of how to include the social care aspect in the legal framework. I hope that we shall consider the issue again. I shall submit a great deal of information to the working party. I support the amendment.

The Earl of Listowel

My Lords, I, too, support the intention of the amendment. I welcome the Minister's remarks in Committee regarding those young children who commit serious offences who may be covered by Clause 14 or possibly earlier clauses. I appreciate his wholehearted agreement that we should identify and intervene at an early stage with children at risk of becoming sexual abusers; and his acknowledgement that in the past such children have not received the focus and attention they should have done. The noble and learned Lord has kindly written to me and to others, alerting us to the interdepartmental working group. I believe that it is due to report in the autumn. Will the Minister keep us informed of the progress of the working group? Perhaps he will let us know should there be any change in the group's timetable.

Baroness Blatch

My Lords, I think that I am again on my own in fighting this issue. I object to any provision which erodes what I consider to be the very low age of consent. We continually erode it through some of the amendments put forward.

I was pleased to hear my noble friend Lady Noakes give qualified support for the amendment: she did not wish to see a blanket exemption. Removing Clause 14 represents a blanket exemption. All noble Lords have talked about what they consider to be innocent, normal sexual activity between healthy teenagers. However, in the real world we know that there is aggressive and abusive sexual behaviour by teenage boys in particular against very young girls. It is possible for 13 year-olds or even younger girls to be terrorised by such aggressive, abusive sexual behaviour. By leaving out Clause 14, those teenage boys would not commit offences. There needs to be protection of those children.

I find it almost impossible to conceive of the police prosecuting the kinds of examples cited. We need a provision in the Bill which enables the police to prosecute and then to put in place the treatment, counselling and behavioural programmes that those young people require. As the noble Baroness, Lady Walmsley, said, many of those young people have been abused themselves. They have all kinds of personality defects. That issue needs also to be addressed. But to remove Clause 14 from the Bill would be detrimental. I hope that the noble and learned Lord will not accept the amendment.

The Lord Bishop of Chester

My Lords, I hope that the noble Baroness, Lady Blatch, will be pleased to know that she is not alone on this matter. I share the desire to avoid criminalising young people unless it is necessary. The legal framework in our country affects the moral climate. The two are not separate. To remove Clause 14 gives the wrong signal. I speak as someone with teenage children. My daughter is 17. She brings her friends to my house, we mix freely, and I learn something of the culture of young people. It is a bit of a jungle, with threats, stresses and strains. The law has a part to play in providing safeguards and anchors in particular when dealing with boys aged 15, 16 and 17.

As drafted, Clause 14 is somewhat stark. Clearly one wants counselling, support, advice and education to be pre-eminent. There is a place for the law. Clause 14 has got it about right. At present, I resist the amendment.

Lord Falconer of Thoroton

My Lords, it is a difficult area but we resist the amendment. It is important to identify its effect: ostensibly, that consensual sexual activity between persons aged between 13 and 17 inclusive would never be unlawful. In effect, it restricts the age of consent only to situations where a person under 16 engages in sexual activity with a person who is 18 or over. The way in which the criminal law deals with under-age consensual sexual activity is a matter we debated at some length in Committee. We have considered very carefully our position in the light of all the concerns raised. However, we remain firmly of the opinion that the age of consent should apply across the board, whether a child is having sex with another child or an adult.

I know that it is widely held that a sexual relationship is far more likely to be abusive if the age gap between the parties is significant—for example, between a 15 year-old child and a 40 year-old adult. But the truth is that adults do not have a monopoly on child abuse. We cannot assume that sexual relationships between young people will be fully consensual just because they are of a similar age. We know that children are often abused by other children. Although we earnestly hope that steps would be taken to intervene as early and as quickly as possible to try to help the child who is abusing, the law must be able to protect such children in the appropriate case.

The amendment would leave in place the nonconsensual cases and the under-13 cases, save in the respect identified by the noble Baroness, Lady Noakes, but would provide no protection where it is said, possibly by the victim, that there was consent. In that case, the child sex activity charge would not apply to those cases where the defendant is under 18 years of age.

We believe that the law must make provision for children to face charges relating, ostensibly, to consensual activity where there is evidence to suggest that it is exploitative or coercive, as there may not be enough evidence to support a charge for a nonconsensual offence. As was said in Committee, many children are vulnerable to peer pressure and can be persuaded to engage in sexual activity when they would prefer not to do so. In such circumstances, sexual activity cannot be said to be non-consensual, but it can be exploitative. In such cases, we want to leave open the possibility of the CPS bringing charges under one of the child sex offences where prosecution is in the public interest.

The testimony of many children is that they welcome the protection that is offered by the age of consent, because it enables them to withstand peer pressure to engage in sexual activity before they are ready to do so. I am not sure that we would be right to remove that protection. I simply do not accept the proposition that we should leave children without any legal grounds to help them resist coercive sex. Legalising sexual activity between minors would send the message that sexual activity below the age of consent is acceptable and normal. In my opinion, that would encourage more children to engage in sexual activity before they are emotionally and physically ready to cope with the consequences.

Our view is that we have a duty to protect children from engaging in sexual activity at too early an age. Existing legislation, which contains offences of unlawful sexual intercourse and indecent assault, already makes it clear that it is unlawful to engage in any sexual activity with a person below the age of 16. We are content that our new legislation should make a clear statement that this continues to be the case.

I have already made it clear—I do so again—that we do not want or expect under-age sexual activity between young people to be prosecuted unless there is clear evidence of exploitation and prosecution is in the public interest. We suspect that it would be unwise to remove all of that protection, as proposed by the amendment, and that it would also be a matter of getting the balance wrong. Despite the law that I described, there is no evidence at present to show that that happens. As we are not making any substantive change in that respect, we do not believe that it will happen in the future.

I recognise that this is a difficult issue, but we are clearly of the view that the amendment is unacceptable. I am not talking about the technicalities involved; I am talking about the principle. To say that the child sex activity offences should not apply to a person under the age of 18 is wrong in principle. I respectfully ask the noble Baroness to withdraw her amendment.

Baroness Walmsley

My Lords, I am grateful to the Minister for his response, and to those noble Lords who expressed support for the sentiments behind the amendment. It is possible that the wording of the amendment is not quite right, but I respectfully suggest that that also applies to Clause 14. Perhaps I need to draft a new Clause 14 and table it for consideration on Third Reading. I shall certainly consider that option. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.15 p.m.

Baroness Walmsley

moved Amendment No. 57: After Clause 14, insert the following new clause—

"SENTENCE REVIEW Where a young person under the age of 18 has been convicted of an offence under this Part, the Court or Youth Offending Panel shall review the sentence when the young person reaches the age of 18.

The noble Baroness said: My Lords, this amendment relates to reviewing the case of a young sex offender when he reaches the age of 18. When I tabled a similar amendment in Committee, the noble and learned Lord responded that young people's cases are regularly reviewed in any event, so why should we bother to review such cases again when such youngsters reach the age of 18? In response, I should point out that at the age of 18 young people move into the adult penal system, which is a very significant change in their circumstances. That is why I believe it to he essential for such cases to be reviewed.

There is a great difference between a young offenders' institution and an adult prison. It is quite appropriate, therefore, even if a review took place only a month or so prior to the young person's 18th birthday, for such cases to be reviewed. We are talking about a significant point in the lives of young sex offenders when they move into the adult justice system. I beg to move.

Lord Falconer of Thoroton

My Lords, this amendment would introduce a new provision that would oblige the court or a youth offending panel to review the sentence of all young persons convicted of sex offences once they reach the age of 18, regardless of what sentence was passed. This point was raised in Committee. As I said then, the sentence passed by the court will already have taken account of the severity of the offence and the age or the child at the time that the offence was committed.

For sentences passed for sex offences committed by young persons to be automatically reviewed when the child reaches the age of 18 would be a completely novel departure from the approach adopted throughout the rest of the criminal justice system. For example, a sentence passed on a young offender at the age of 17 would need to be reviewed very quickly thereafter. If a very long sentence was passed on a younger child, it would almost invariably be because of the seriousness of the offence, which, as a matter of punishment, required a long sentence.

Therefore, although we fully understand the motivation behind the amendment, we do not believe it to be sensible or necessary and we do not believe that it sufficiently takes into account the fact that the court will already have considered the child's age and the seriousness of the offence when passing sentence. I implore the noble Baroness to consider withdrawing her amendment.

The Earl of Listowel

My Lords, I apologise for speaking out of turn. I did not rise quickly enough to enable me to speak in the proper order. I shall quite understand if noble Lords object to my speaking at this point. However, having re-read the record of the Committee stage in the Official Report, I must emphasise my concern about those children aged 13 or 14 who receive a long sentence of imprisonment. Tremendous progress has been made on what can be done to treat these children. The scene here is changing very quickly. As the Minister will know, for adults there has been a lot of progress and this is now beginning to happen for children.

I emphasise that for these young children with long sentences there are almost invariably welfare issues to do with the circumstances that created the initial problem in them. They undergo an important transition at the age of 18. Perhaps the Minister could bear these factors in mind when considering the guidance that is to apply to the Bill, so as to ensure that a thorough mechanism for review is available for the cases of those children who receive long sentences at an early age. This would ensure that the practice here is right. I thank noble Lords for giving me this opportunity to speak.

Baroness Walmsley

My Lords, I am most grateful to the Minister for his reply. I also thank the noble Earl, Lord Listowel, for his comments. He is quite right: rapid progress is being made in the treatments and programmes available to assist young people in such situations. Indeed, because of the flexibility of the programmes, the children often make very rapid progress towards recovery out of the situations in which they find themselves. Therefore, it is very important to review the sentence when these youngsters reach the age of 18. However, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 [Arranging or facilitating commission of a child sex offence]:

Baroness Blatch

moved Amendment No. 58: Page 6, line 36, at end insert— ( ) he is not and has never been subject to the notification requirements of Part 2 of this Act or to any order made under Part 2 of this Act, ( ) he has never been subject to Part 1 of the Sex Offenders Act 1997 (c. 51) and does not satisfy any of the conditions in section 83(1)(a) to (d) of this Act, and ( ) he is not and has never been subject to any order made under a provision within section 83(8) of this Act, and

The noble Baroness said: My Lords, Clauses 15 and 75 were amended in Committee to create a defence against child sex offences for those who claimed to be carrying out sex education or similar activities. I opposed the amendments. I believe that the defence is unnecessary. I am not aware of a single case under the existing law of a respectable sex education professional being prosecuted for a child sex offence simply for carrying out legitimate sex education. I do not believe that any such cases would arise under the new legislation.

None the less, the Government, supported by my noble friends and others, were determined that there should be a specific defence from the Clause 15 offence of facilitating a child sex offence and a further defence from aiding and abetting child sex offences in Clause 75.

The Bill now provides that no offence is committed where the person acts to protect a child from sexually transmitted infection or physical harm, or to prevent pregnancy (Clause 15 (3) and Clause 75(1)).

I have given serious consideration to all that was said in Committee, and I remain concerned that this defence will be abused. When the matter was debated in Committee on 1st April (Hansard, col. 1235), I argued that it was a paedophile's charter. I maintain that the law of unintended consequences means that the amendment, which is not necessary to protect sex education professionals, will instead benefit paedophiles who worm their way into positions of trust and authority over children precisely in order to take sexual advantage of them.

In the next group we shall discuss amendments which would widen the scope of that defence. I hope by my amendments to narrow the defence.

I wrote to the noble and learned Lord the Minister last week mentioning some cases where a child sex abuser claimed that he was simply carrying out sex education, when in fact he had ulterior motives.

First there was the case of Michael Gregory, a trainee church minister who was convicted of indecently assaulting two girls. In one case he gave a 13-year-old girl a graphic demonstration of how to use a condom. The man was responsible for giving a course of sex education lessons to a youth group at the church.

Then there is the case of Terence King. He was a vicar who apparently showed an 11-year-old boy pictures of naked men during sex education classes and then sexually assaulted him. The victim, now 24, said that a number of children in the church were abused in this way. The vicar would require the children to go one at a time into his room for sex education sessions lasting up to half an hour.

There was also the case of Robin Peverett, the headmaster of a leading prep school who indecently assaulted at least eight pupils in the 1970s. He conducted sex education lessons at the school. He had access to the girls' changing rooms and showers, and obtained details of the girls' physical development, ostensibly out of professional interest.

Finally, there is the case of Anthony Gray. He arranged via the Internet to meet up with a 14-year-old boy. His pretext was to discuss the boy's confusion over his sexuality. He took the boy to a hotel, where he sexually assault him. He later claimed that they spent the night discussing the boy's problems.

Clearly, those are cases in which the paedophiles carried out actual sexual acts on the children concerned, and it was for those acts that they were subsequently convicted. My purpose in drawing attention to those cases is to ask what would have happened if the individual had stopped short of actual sexual contact and had been content to obtain his sexual gratification from the sex education lessons. Could he have defended his actions up to that point by claiming merely to have been involved in sex education?

None of those cases involved a man with previous convictions for child sex offences. This brings me on to the substance of my amendments. What is most astonishing about the sex educator's defence that the Government have written in to Clauses 15 and 75 is that there is nothing to prevent a convicted paedophile or other sex offender from using that defence. Is it really the Government's intention that this defence should be available to such people?

My amendments—Amendments Nos. 58, 168 and 171—stipulate that no person who is subject to the sex offender notification requirements of Part 2 can rely on that defence. This stipulation also applies to those subject to registration under the existing sex offenders register. This stipulation is permanent. Once a person has been subject to the notification requirements he can never rely on the defence, even if the notification requirements cease to apply.

I would accept it if the Minister said that the drafting could be improved—any drafting of my amendments can always be improved—and that he will take the matter away and think about it.

I cannot conceive of any reason why a convicted sex offender should ever be allowed to get away with facilitating or aiding and abetting a child sex offence by claiming that he was merely involved in sex education. I beg to move.

Baroness Noakes

My Lords, I support the principles behind my noble friend's amendment. If there is any possibility that paedophiles could use the welcome provisions in Clauses 15 and 75 to become involved inappropriately with children, everyone in the House would want to prevent that.

My noble friend has found an ingenious way to ensure that sex offenders cannot claim the protection of Clauses 15 and 75, and I congratulate her on that.

However, I have two problems with the amendments. The first relates to the lack of time limits. The time that the ban exists does not expire with the notification period, which it seems to me would be a more proportionate amendment. Secondly, the amendments cover all sex offenders and therefore cover offences involving adults only as well as those involving children.

If those aspects can be resolved, it seems to me that the Government would want to consider whether the matter can be shaped into a more workable form.

Lord Falconer of Thoroton

My Lords, the purpose of Amendments Nos. 58, 168 and 171 is to ensure that the exemption that we have introduced to protect those acting to protect the physical safety of a child, or to protect him or her from pregnancy or sexually transmitted infection, shall not apply if the accused is or has been a registered sex offender or the subject of an order designed to prevent sexual harm.

The noble Baroness, Lady Noakes, referred to various aspects of the clause that make it probably too wide and untargeted. I do not wish to spend time on the detail, but rather to deal with the principle, which, as I understand it, as advanced by the noble Baroness, Lady Blatch, is that a convicted sex offender—I shall ignore how one precisely defines that term—should never be able to rely on Clause 75 as a defence to any of the relevant offences.

I fully understand the noble Baroness's concerns, and completely agree that the clause should not become a means of people putting forward bogus defences. But I do not believe that addressing the issue as the noble Baroness suggests, by an amendment of this sort, is the appropriate way.

I believe that the provisions in the Criminal Justice Bill, which will reach this House in the next two to three weeks, would be the better way to address this question. They deal with cases where the fact that a defendant has a conviction for a sex offence is relevant to the facts of the charge in question. The existing law means that it is only in very exceptional circumstances that evidence of such previous convictions is admissible in trials.

If someone previously convicted of sex offences against a child were charged with a new sexual offence involving a child, it would not generally be possible now to refer to the previous convictions in the trial for the new allegation. However, proposals in the Criminal Justice Bill would make such evidence available to the court in a much wider range of circumstances. The court, therefore, when considering whether the exception was made out—and the exception exists for the purposes of court proceedings—or whether the defendant had in fact been causing or encouraging a sexual offence, would be able to consider that matter, where relevant, taking into account those previous convictions.

I think that it is better for the court to assess whether in a particular case the evidence relating to the previous conviction is relevant, and, where it is fair, for it to be admitted, rather than providing a blanket prohibition on a whole class of offenders from relying on the exemption, even where there might be clear evidence that the defendant was acting for the protection of the child.

I am very sympathetic to what is sought to be achieved, but I think that there is a better way to deal with it.

I have dealt with the principle. For the reasons advanced by the noble Baroness, Lady Noakes, I do not think the detail is quite right, but I do not rely on the detail; I rely on the principle.

7.30 p.m.

Baroness Blatch

My Lords, the noble and learned Lord has not answered my question. In all the cases I have cited, what would have been the position if those involved had stopped short of committing actual sexual offences and relied upon the sexual education exemption in the Bill? There is a lacuna in the Bill which, sooner or later, will be used by people who have malintentions against young people.

Lord Falconer of Thoroton

My Lords, as I understand the hypothesis put by the noble Baroness, the putative offender conducts sex education lessons—he does not commit any other offence but simply teaches sex education—and obtains some kind of sexual gratification from that. If that is all, and there is no element of grooming involved, is that an offence under the Bill? The answer is that it is not.

Clause 13 relates to causing a child to watch a sexual act. If the noble Baroness is referring to potentially causing another person to watch a third person engaging in a sexual activity, plainly she is right. But, as I understood the noble Baroness's point, looked at from the outside it would be ostensibly a straightforward biology lesson.

Baroness Blatch

My Lords, the noble and learned Lord and my noble friend are missing the point. It is possible that the activity undertaken by these persons could be offensive and their defence for what they were doing could be that they were helping a young person to deal with confusion about his or her sexuality or helping a young person who had difficulties in his or her sex life. The defence has a wide interpretation which could be used by persons who are up to no good. Such people would be allowed to adopt the defence, which could be accepted. If the people in the cases I have cited had done what they were charged with but simply stopped short of the full offence, their behaviour would have been offensive but their defence would be allowed under the Bill as presently drafted. The noble and learned Lord said that there are other ways of dealing with this issue and that he was sympathetic to what I was trying to achieve, but he did not impress me too much with his answer. We are dealing with a sexual offences Bill and this is a sexual offences issue. What I am referring to can be dealt with in the Bill. The remedy is not to give a blanket defence for people who have a malintention rather than a genuine educational intention.

I am bothered that the noble and learned Lord is palming off this issue by saying that another Bill is coming along and that that is the way to deal with it. It should be dealt with in this Bill. If the noble and learned Lord is not able to improve on my wording I shall go away, pick up the points made by my noble friend and the noble and learned Lord and try to find a way of ensuring that young people are protected from people who have malintentions against them using the defence set out in the Bill. I go back to what I have said previously—I make no apologies for it—that this Bill could in practice be a paedophile's charter. That is something that I do not want to sign up to. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Evans of Temple Guiting

My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.35 p.m.

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

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