COMMONS AMENDMENTS (Hansard, 13 November 2003)

§ Baroness Scotland of Asthal
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 9 to 15.
The purpose of the amendments is to make changes to Part 1. A loophole in Clause 12—"Engaging in sexual activity in the presence of a child"—meant that the situation in which a person engages in sexual activity and sends the live image of that via a webcam or other electronic means to a child was not covered. Government Amendments Nos. 9, 14, 50, 70 and 85 have closed that loophole in Clause 12 and in other clauses that involve engagement in sexual activity in the presence of a person.
The police raised concerns that offences involving causing a person to watch a sexual act extended only to showing photographs or pseudo-photographs. The police gave us examples whereby paedophiles had shown children tracings of indecent photographs and drawings and cartoons of sexual activity. Government Amendments Nos. 10, 15, 56, 74 and 90 extend those offences to cover any form of visual representation.
Amendment No. 11 excludes from the exception at Clause 15—"Arranging or facilitating commission of a child sex offence"—people acting for their own sexual gratification. Amendments Nos. 128 and 129 make a similar change to Clause 74. That will ensure that a person does not commit an offence if he acts for the purpose of protecting a child's physical safety, protecting a child from pregnancy or sexually transmitted infection, or promoting the child's emotional well-being by the giving of advice, provided that he is not acting to cause or encourage an offence and that he is not acting for the purpose of obtaining sexual gratification.
Government Amendment No. 12 removes the marriage defence in Clause 16 for the child sex offences. We do not believe that someone should be able to engage in sexual activity with a child under the age of consent just because the two are married. However, government Amendments Nos. 25, 34 and 1628 96 retain a marriage defence where offences criminalise sexual activity with children over the age of consent—for example, in the abuse of a position of trust offences—but only in circumstances where the child is 16 or over.
Government Amendment No. 13 increases the penalty for the grooming offence in Clause 17 from seven to 10 years. That will enable appropriate sentences to be passed in the most serious cases. The situation could arise, for example, whereby a paedophile with many previous and serious convictions had repeatedly communicated with children on the Internet, there was clear evidence that he intended to commit maybe a violent sex offence against one or more of them, and he set off to meet one of those children for that purpose but the police were able to intervene to protect the child. In such cases, a maximum sentence of seven years' imprisonment may not be adequate. The proposed new maximum penalty of 10 years brings the offence in Clause 17 into line with the preparatory offences in Clauses 62 to 64, which also carry 10-year maximum penalties.
Government Amendments Nos. 17 to 24 extend the scope of the abuse of trust offences in Clauses 18 to 21. The circumstances in which step-parents fall within the scope of the familial child sex offences have been changed by government Amendments Nos. 31, 32 and 33 so that they are treated equally with foster parents.
The offences involving a person with a mental disorder have been amended by government Amendments Nos. 36, 39, 43, 46, 51, 54, 57 and 60 so that the link between someone's inability to refuse and their mental disorder does not exclude persons who are unable to refuse because of medication that they have received to treat their mental disorder. Furthermore, the term "mental disorder or learning disability" has been replaced with "mental disorder", by government Amendments Nos. 37, 38,44, 45, 52, 53, 58, 59, 62, 63, 66, 67, 72, 73, 75 to 89, 91 to 95 and 211 to 213. Given that the definition of "mental disorder" as stated in the Mental Health Act 1983, which we adopt in Clause 80, covers all forms of learning disability, the inclusion of "learning disability" in the text of those clauses is redundant.
Following debates in this House, the wording of Clauses 32 and 33—on sexual activity with a person with a mental disorder and causing or inciting a person with a mental disorder to engage in sexual activity— was changed by government Amendments Nos. 40 and 47. An understanding of the "reasonably foreseeable" rather than the "possible" consequences of what is being done is now required to qualify as being unable to refuse.
Amendment No. 98 addresses concerns that the effect of the wording in Clause 47 of the exception relating to indecent photographs featuring a child aged 16 or 17 did not cover those in a lawful enduring relationship with one another while it included some people we would not wish to cover.
Amendments Nos. 99 and 100 would provide a workable and secure defence to the offence of making child pornography based on proof—on the balance of 1629 probabilities—that it is necessary to do so for one of the specified purposes: detection, investigation or prevention of crime, for criminal proceedings or by members of the security service or GCHQ for the function of their services.
The trafficking offences have been amended by government Amendments Nos. 107, 109 and 111 to criminalise someone intentionally moving a person to where they believe another person is likely to do something to the victim that, if done as intended, will involve (he commission of a relevant sexual offence. That addresses concerns raised by the police that trafficking offences would be extremely difficult to prove.
The scope of offences relating to sex with an adult relative has been widened by government Amendments Nos. 112 and 113 to include blood uncles and aunts and their blood nieces and nephews. That is because there exists the same amount of genetic similarity between blood uncles and aunts and their blood nieces and nephews as between half-brothers and sisters, who are already included in the offence.
As previously drafted, the exposure offence required a person who exposes his genitals to know or intend that someone will see them and be caused alarm or distress. There was still some concern that that might criminalise legitimate naturist behaviour. The clause has been altered by Amendment No. 121 to limit the offence of exposing the genitals to the situation in which a person intends that someone will see them and be caused alarm or distress.
The term "structure" has been removed by government Amendments Nos. 124 and 126 from the definition of "private act" in the interpretation of the voyeurism offence. The offence will now protect anyone engaging in a private act in any place where they would have a reasonable expectation of privacy, not just when they are in a structure.
Finally, a further category has been added to the list of circumstances giving rise to the rebuttable presumptions. Government Amendment No. 130 includes in the list in Clause 76(2) the situation in which the defendant knows that someone has administered a substance to the victim that would render him incapable of resisting sexual activity.
With your Lordships' leave, I have taken a little time so that we are absolutely clear about what these amendments do. I beg to move.

§ Baroness Noakes
My Lords, this is a large group of amendments and noble Lords will be pleased to hear that I will not be speaking at length to any of them. The amendments in this group reflect the careful scrutiny that this Bill has received both in your Lordships' House and in another place. Many of the points that we are seeing brought back again in amendments from the Commons originated on issues that were first debated in your Lordships' House. Almost everybody got something changed that they tried to get changed in the Bill—if not quite a lot. That goes not only for responses to issues raised by the Front Bench, but for those raised by other colleagues in the House.
1630 My noble friend Lady Blatch, who is unable to be in her place for this stage of proceedings, has asked me to place on record her thanks for the amendments that have come back dealing with trust provisions and the exclusion of sexual gratification from the Clause 15 exception. We support the amendments.

§ Lord Lucas
My Lords, I thank the noble and learned Lord, Lord Falconer, for Amendment No. 130, on which we had long discussions when the Bill was in the House. He promised to do something about the matter and I am delighted with the result. I would also like to thank Lesley Dix, an official in the criminal law policy unit and, doubtless, others like her who took up the point that I raised, which is now the subject of Amendments Nos. 112 and 113.
My point was completely nerdy and made no impression at all on the Minister in debate, but I am delighted to say that it was taken up by officials and has emerged as an amendment, which I am delighted to see. That deserves a very special thank you, because one thinks ill of officials from time to time, especially when they are supporting the government line. It is very nice to have the chance to say, "Thank you".