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. 114 to 116.
Government Amendment No. 114 moves Clause 67,
Sexual activity in a public lavatory to the end of the section of the Bill dealing with "other offences". Government Amendments Nos. 115 and 119 are designed to make Clause 67 more workable in practice and to remove the possibility of trial on indictment and the maximum penalty of two years' imprisonment that attaches to it. Government Amendment No. 131 provides that the definition of "sexual" in Clause 79 does not apply to the offence at Clause 67.
The definition of "sexual" at Clause 79 was amended in the Commons in response to concern that the original definition was too complicated. The sense of the definition and its practical effect were not changed in any way.
I do not know whether it would be convenient for me to speak now to Amendment No. 132A, to be moved in due course by the noble Lord, Lord Thomas of Gresford. However, I see that the noble Lord shakes his head.

§ Baroness Noakes
My Lords, Clause 67, which is the subject of most of these amendments, was inserted into the Bill in your Lordships' House. I had feared that the Government would seek to overturn it. I should like to place on the record my appreciation to the Government for choosing not to overturn the amendment, but to improve it by way of the amendments in this group. We regard the outcome as very satisfactory and I thank the Government for that.
While I am on my feet for what I hope is the last time in connection with this Bill, I should like also to place on the record the appreciation of Members on these Benches not only for the co-operation that we have had from the Minister and her predecessor, but also from the Bill team, which has been quite exceptional. Even after the Bill had left this House, the Bill team kept us fully informed of what was happening in another place, which made the task of dealing with the Bill when it returned to your Lordships' House much easier.
My final thought is to suggest to the Minister that she should distil the essence of her Bill team and market it to her colleagues.

§ Lord Thomas of Gresford
My Lords, I, too, should like to express my thanks to the Bill team, which has worked exceptionally hard on this legislation and has helped us all the way.
Amendments Nos. 117A and 132A tabled in my name seek to probe the reasons why the purpose of a person in relation to sexual activity is regarded as irrelevant. I ask the question because in the case of Court, which was heard before the Judicial Committee 1641 of the House of Lords some 10 to 15 years ago, the activity committed by the defendant was that of smacking the bottom of a young girl. That was an assault, but the question was whether it was a sexual assault. His purpose was probed because, when interviewed by the police and asked why he had done it, his reply was, "I don't know. Bottom fetish, I suppose".
The whole case was concerned with what was his purpose, and whether his purpose would turn what was otherwise an ordinary assault into a sexual assault. Noble Lords in this House, in a case in which I appeared for the defence, my noble friend Lord Carlile of Berriew appeared for the prosecution, and to which the noble and learned Lord, Lord Ackner, was a party, decided that neither of the arguments put forward by my noble friend Lord Carlile and myself were right, but that the purpose of the defendant was in fact material.
The wording in both of these clauses seems to move away from that finding. Presumably, therefore, if there is an activity which is not overtly sexual, it will not be a sexual assault, whatever may be in the mind of the defendant. It is for the reason of securing enlightenment on that point that I have tabled these amendments.

§ Lord Lucas
My Lords, I want to add another thank you. During the passage of the Bill we had long arguments on the definition of "sexual" and we made, I felt, remarkably little progress. We talked a lot but we did not get anywhere. The last concession I got out of the noble and learned Lord the Lord Chancellor was that he would find me someone to talk to further. That someone turned out to be Sarah Cookson from the Legal Adviser's Department. One of the highlights of my year is the way in which she dealt with the points and the arguments I was making on that and the results it has had.
Back-Benchers like me come into the House in the hope that we will be able to influence and make small improvements to legislation. This is something I cared about immensely and thought that I had lost. The noble Lord, Lord Thomas, thinks it is coming through imperfectly, but I believe that it is so much better than it was and I am absolutely delighted.

§ Baroness Scotland of Asthal
My Lords, I am grateful for the warmth of the noble Lord's commendation and, indeed, for the words of commendation of the noble Baroness and the noble Lord, Lord Thomas of Gresford, for the Bill team. The Bill team has worked extremely hard, but I should say that their efforts have been emulated by the teams that have assisted me on the Extradition Bill, the Criminal Justice Bill and the Anti-social Behaviour Bill. They must all be drinking from the same well, and long may it continue.
I am very happy to elucidate on the concerns expressed by the noble Lord, Lord Thomas of Gresford, in terms of his request for an annual explanation of the scope of the definition of "sexual". I understand that he has tabled the amendment to seek 1642 an explanation of why this offence contains a specific definition of the term "sexual" and does not rely upon the generic definition at Clause 79.
The purpose of this is to prevent sexual activity taking place in public lavatories because people find it offensive. In practice, people only find it offensive to see or to hear acts which, from all their circumstances, appear to be sexual. If an act takes place which, unbeknown to anyone other than the perpetrator, gives that individual a sexual thrill, no offence could possibly be caused to another person and we see no reason to ban it from taking place in public lavatories.
We firmly believe that this is the right threshold to apply to what is essentially a public order offence. It would not be right to use the definition at Clause 79(a) because it includes a test based on the defendant's purpose. This would bring into the scope of the offence activity that is only sexual because of a person's purpose. Although it is right for such activity to be included within the scope of offences that are designed to protect people, particularly children and vulnerable adults, from abuse, we can see no justification for applying the same test in this offence, which is, as I have said, essentially a public order offence. So while it may seem undesirable to have two different definitions of prohibited sexual activity in the same Act, we feel that this is unavoidable if we are to ensure that the right test is applied to the right circumstances.
I hope the noble Lord finds that explanation helpful. For the reasons I have given, I obviously cannot accept his amendment.