House of Commons Hansard Debates for 30 Apr 1993

Mr. Hayes : The difficulty is that those who serve on Committees are not always willing participants, whereas those who come along on Friday mornings--when many Members believe that they should be with their families or their constituents--feel strongly that they should have the right to be heard.

Mr. Michael : Will the hon. Gentleman give way?

Mr. Hayes : Yes, but then I must press on.

Mr. Michael : I am sure that the hon. Gentleman wishes to press on, but I should like to clear him of any guilt relating to this matter. His contributions to the debate this morning have been very restrained, despite the fact that some of his hon. Friends have sought to widen the debate way beyond the limits of the Bill. However, the Second Reading went through on the nod and the Committee stage took 20 minutes. The Bill has had its Report stage this morning, and all of a sudden, when we arrived at Third Reading, a large number of hon. Members wandered into the Chamber and jumped up, thus indicating that they wanted to speak. That looks to me like a filibuster and an attempt to talk out the Bill that my hon. Friend the Member for Durham, North (Mr. Radice) has introduced in an effort to protect the British public. That is a disgrace.

Madam Deputy Speaker : Order. I have made the point before to the hon. Member for Harlow (Mr. Hayes) that we must stick to the point. If hon. Members want to speak on Third Reading, they are entitled to do so, but I suggest that that is exactly what they do.

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Mr. Harry Greenway (Ealing, North) : On a point of order, Madam Deputy Speaker. I think that I am the only person who has come late to the debate. [ Hon. Members :-- "No."] Whether I am or not, I have strong reasons for being late. I am very interested in the Bill and wish to speak on Third Reading. It is not right for hon. Members to be pressurised in this way and to be denied their entitlement to speak on Third Reading. I am glad to note, Madam Deputy Speaker, that you are protecting us.

Mr. Hayes : I am grateful to you, Madam Speaker, for your ruling. I am delighted to say that the Bill has the full support of the Opposition Front Bench, as well as the support of the Liberal Democrats.

Ms Liz Lynne (Rochdale) : The hon. Gentleman says that the Bill has the full support of the official Opposition and the Liberal Democrats. I agree. Therefore, I cannot understand why it is taking so long.

Mr. Hayes : If the hon. Lady had been here longer, she might understand. She has been here for only about 10 minutes.

Ms Lynne : I understand that the Committee stage took 20 minutes and that there has been no opposition to the Bill whatsoever. Therefore, I reiterate my point : I do not understand why it is taking so long.

Mr. Hayes : Perhaps the prolonged absence of the hon. Lady and the fact that she had nothing to say was because she was convinced by the arguments.

It may help if I deal with the policy background. The Bill implements a recommendation of the Criminal Law Revision Committee in its 1984 report on sexual offences, that the presumption of incapacity in law of boys between the ages of 10 and 13 should be abolished. That recommendation was included in a private Member's Bill in 1990 on sexual offences which received all- round support. The offences covered include all crimes that involve an offender's capacity to penetrate the vagina or anus, rape, buggery, or attempts to commit these offences, unlawful sexual intercourse with a girl under 13 or 16, unlawful sexual intercourse with a person suffering from a mental disorder or defect, or any other sexual offence involving penetration. May I point out to my hon. Friend the Member for Hertford and Stortford (Mr. Wells) that we are not criminalising consensual sex between teenagers, whether it be homosexual sex or heterosexual sex, or sex with animals.

Earlier I gave the figures for the past five years. Between 1987 and 1991 they show that nearly 215 boys, aged between 10 and 13, were prosecuted for indecent assault on females and that 1,260 were cautioned. Over the same period, 21 were proceeded against for indecent assault on males, and 187 were cautioned. In some of those cases, though we cannot say precisely how many, there will have been penetration. A charge of indecent assault will have seemed to the victims to have been quite outrageous. These offences cause real distress to the victims. That distress may be compounded if they then find that their attackers cannot be convicted of the right offence. That adds insult to injury.

Some hon. Members may ask what is the point of being convicted of the right offence if those convicted are not

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then subjected to custody. That point was made properly by my hon. Friend the Member for Wyre Forest (Mr. Coombs).

Mr. Michael : On a point of order, Madam Deputy Speaker. Is it in order for briefing meetings for the filibuster to take place within the Chamber ?

Madam Deputy Speaker : The Chair has no knowledge of those matters.

Mr. Hayes : Some people may ask what is the point of young people being convicted of the right offence if they are not then subjected to custody. My hon. Friend the Member for Wyre Forest has made it clear, as have many of us on this side of the House, that we await with great interest what my right hon. and learned Friend the Home Secretary presents to us on the Floor of the House at some future time.

Section 53 of the Children and Young Persons Act 1933, which gives courts powers to order the long-term detention of juveniles convicted of grave crimes, applies, in the case of those under 14, to the offences of murder and manslaughter, something which I hope will interest the hon. Member for Leyton (Mr. Cohen) and my hon. Friend the Member for Sutton and Cheam (Lady Olga Maitland). Intensive community-based supervision has proved to be an effective way of responding to children of this age who commit serious offences. When removal from home is necessary, local authorities have powers under the Children Act 1989 to take care proceedings. When children in the care of local authorities need to be contained, a placement can be made in secure accommodation, provided that the criteria under the Children Act are met.

I understand that my right hon. and learned Friend the Home Secretary is working on proposals for a new sentence to provide education and training in a secure setting for juveniles who persistently offend. That will be welcomed not just in the House but throughout the country. I understand that my right hon. and learned Friend is also considering the adequacy of the scope of detention under section 53.

Some people may ask whether this legislation will penalise children unfairly. I believe that there is absolutely no risk of naughty or mischievous children being brought erroneously before the courts. The prosecution will have to prove that the accused understood that what he did was seriously wrong.

There is no need for the Bill to extend to Scotland since the common law has never recognised a presumption of incapacity, and Northern Ireland is a matter for my right hon. Friend the Secretary of State.

The Bill is simple, straightforward, clear and absolutely necessary. It is necessary for the young women who have been raped, taunted and have gone to hell and back only to find their attackers facing the ridiculous charge of indecent assault when they know that a wicked offence of rape has taken place. I commend the Bill to the House.

11.30 am

Lady Olga Maitland : I warmly congratulate my hon. Friend the Member for Harlow (Mr. Hayes) on introducing the Bill--it certainly is not before time.

It is insulting to be accused by the Opposition of filibustering because I have had a long-standing interest in

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the subject. I was not invited to be a member of the Standing Committee, but I wish that I had been. If I had, I would have made my speech then.

I am very concerned. I am a mother of three children and have brought them up to understand good sexual matters.

Mr. Ian McCartney (Makerfield) : I take what the hon. Lady is saying with a pinch of salt. She had a choice of being a member of the Standing Committee that considered the Medicines Information Bill or the one that considered the Sexual Offences Bill, in which she says she is interested. She chose to be a member of the Committee that considered the Medicines Information Bill, which she attempted unsuccessfully to filibuster. She has turned up this morning--

Madam Deputy Speaker : Order. That is not relevant to what we are debating.

Lady Olga Maitland : I trust that the hon. Gentleman will withdraw his remarks about me. I will stick to the main point because I am concerned about this matter.

Children need to be taught sexual manners. The tragedy of today is that they have been polluted by television, the press and society's attitude of take it, grab it and have it at any price.

Mr. Harry Greenway : My hon. Friend is making an important point, but it must be placed in the context of education. I have dealt with these matters over many years, and I do not think that it is easy to teach children sexual manners. They should be taught that sex should take place in a loving relationship.

Lady Olga Maitland : I thank my hon. Friend. I was coming to that point.

I have consistently said for a long time that sexual manners are a moral responsibility. The Bill addresses an extremely serious offence and children who commit it should not think they can get away with it because they will be charged with the minor offence of sexual assault. Young people who forcefully commit penetrative sexual offences should understand that society will not tolerate it. We should also be paying much greater attention to the victims. As my hon. Friend the Member for Harlow said, those victims have been through the personal agony of rape--that is what it is--and to have it dismissed as a seemingly more minor offence makes the agony worse. Victims are often young people--sometimes younger than their assailant. They and their families need a tremendous amount of counselling and support. Everyone should understand that rape is rape and that it cannot be described as another offence such as sexual assault.

11.34 am

Mr. Anthony Coombs : I do not want to detain the House long because, despite what Opposition Front-Bench spokesmen have said, I am interested in the Bill and have some sympathy with it, but there are important matters to be discussed.

My attitude is somewhat equivocal. I congratulate my hon. Friend the Member for Harlow (Mr. Hayes) on introducing the Bill, which is a sensible measure and should have been on the statute book long ago, but it is primarily, though not totally, a cosmetic measure and will

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not do anything to right the wrongs by ensuring adequate punishment and counselling for those who are guilty of heinous crimes. As long ago as 1984, the Criminal Law Revision Committee said that a Bill was necessary. Sir William Shelton introduced a Bill, which, sadly, was talked out by an Opposition Member. Speaking on the Second Reading of that Bill, the then Home Office Minister, the present Secretary of State for Education, said :

"the law is adding to the injury of a vicious rape or a brutal act of sexual assault the insult that it did not happen."--[ Official Report, 11 May 1990 ; Vol. 167, c. 608.]

That is why the Bill is so important. If the Government feel that the penalty for rape should be life imprisonment--the penalty has increased under this Government--the Bill should reflect that, especially as much of the case law on the capacity of a young person to commit rape comes from the 19th century. The latest case that I have been able to find is 1921. With greater nutrition, the sexual activity of children under 14 has greatly increased ; hence the need for the Bill.

I understand that if a woman is raped by somebody under 14, she does not benefit from the same anonymity as if it were categorised as rape. Women will now benefit from that anonymity, which must be a step forward. The Bill will remove the anomaly whereby somebody under 14 can be convicted of aiding and abetting rape, but cannot be guilty of the full offence.

I appreciate hon. Members' concern for young people who commit this kind of appalling crime, but, as my hon. Friend the Member for Sutton and Cheam (Lady Olga Maitland) said, let us not forget the victims. Irrespective of whether a rapist is under 14 or not, the psychological trauma for women will be quite enormous and therefore the punishment should fit the crime.

Sadly, the Bill allows the conviction to fit the crime but says nothing about the punishment. I understand my hon. Friend the Member for Harlow wishing to await the Home Secretary's

deliberations--possibly redeliberations--but the punishment regime for young offenders is inadequate. The Bill should have addressed that, but we may have an opportunity to discuss the matter in 10 days' time in an Adjournment debate on juvenile crime that I have been able to secure.

If the Bill is enacted, the court will have to be convinced that anyone who is convicted, first, committed the act, secondly, knew that what they were doing was wrong and, thirdly, had the mental maturity to realise the consequences of their action. We are not talking only about people who may have been too immature to appreciate the consequences of such an appalling crime but about people who should be punished because they knew perfectly well, as an adult would, what the consequences would be.

I agree with my hon. Friend the Member for Teignbridge (Mr. Nicholls) who said in Committee :

"For too long, the idea that containment is a necessary part of a custodial sentence has been put to one side."-- [Official Report, Standing Committee F, 17 February 1993 ; c. 4.]

We have talked too often about rehabilitation and talked too little about retribution and the deterrence of potential offenders. I understand what my hon. Friend the Member for Harlow (Mr. Hayes) said about section 53 of the Children and Young Persons Act 1933 and the Children

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Act 1989 in terms of the custodial sentence available for those under 14 years of age who commit the appalling crimes that we are now discussing, but I believe that, in the main, the regime of punishment for the under-14s is feeble.

My hon. Friend the Member for Sutton and Cheam mentioned the figures for such crimes. In England and Wales, of 757 instances of indecent assault on a female by males under the age of 14--admittedly not all of which were cases of rape--only five offenders were restrained in custody, although some may have received supervision orders. Despite the psychological damage that they had caused, only five offenders were restrained to prevent them from repeating their offence and in order to protect women.

The problem has been significantly exacerbated by the Criminal Justice Act 1991 whicope the Home Secretary will very soon put right. I shall not delay the House by outlining what I saw when I recently visited my local youth attendance centre, which was used in five cases in 1991 to deal with people who had indecently assaulted females, but I believe that the menu of punishments available for juveniles is not good enough in terms of counselling or rigorous enough in terms of punishment, deterrence or society's retribution for the appalling crimes of which many of these youngsters are found guilty.

It is small wonder that, in relation to the same Criminal Justice Act, the Home Affairs Select Committee recently said :

"The age limitations by the Criminal Justice Act 1991 on the use of secure accommodation should be the subject of research to determine the risks borne by the public by the apparent inability to control the activities of the hard-core persistent juvenile offenders under the age of 15."

I hope that when the Home Secretary publishes his proposals for secure accommodation for young offenders, he will not confine them to persistent offenders but will also deal with young people who may not have persistently offended but who have nevertheless been found guilty of crimes such as rape which most of us deplore.

It is crucial that we deal with the type of situation reported in The Guardian on 3 January last year. An Old Bailey judge ordered a 14-year-old boy who had raped a girl of the same age to be detained for 34 months. The judge said that the case

"draws attention to the fact that legislation currently not only fetters but sometimes prevents juvenile courts from depriving young people of their liberty"

in cases involving such heinous crime.

I know that I am talking about what is not in the Bill rather than what is in the Bill, but if we did not deal with these issues we should be talking about only a part of what is a difficult problem. I give a cautious half welcome to this half measure and look forward with great interest to the proposals to be made by the Home Secretary and his colleagues, which I hope will be better in terms of juvenile punishment.

11.44 pm

Mr. Couchman : I am glad to have caught your eye, Madam Deputy Speaker, during the Third Reading debate. I am slightly affronted by some of the comments made by members of Labour's Front Bench--

Mr. McCartney : He is paid by Pfizer.

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Mr. Couchman : It is unusual for an hon. Member who is on his feet to raise a point of order, but I wish to draw attention to the insinuation of the hon. Member for Makerfield (Mr. McCartney). It is quite deplorable and does not help us to make progress to the very important Bill on which I wish to speak at length after we have debated this Bill.

Madam Deputy Speaker : Order. I did not hear what I gather must have been a sedentary observation, but hon. Members know my views on sedentary observations. They will also know my views on matters which are not germane to the matter under discussion. I want to hear no more of it from anyone.

Mr. McCartney rose --

Madam Deputy Speaker : Order. Sit down. I said that I wanted to hear no more.

Mr. Couchman : I do indeed wish to speak on the Medicines Information Bill which follows and I have tabled several important amendments to it. I have taken an interest in that Bill right from the word go, and I regret that it does not command a complete morning's debate for its Report and Third Reading because it deserves that. I am affronted by the insinuation that has been made. It has been pointed out that the Sexual Offences Bill received its Second Reading on the nod--I think that was the description. I feel obliged to say that that is no doubt because it was second, third or even fourth on the Order Paper on that day. If it had not received a Second Reading on the nod, it would not have received a Second Reading at all because time would have run out and there would have been no opportunity to discuss it. That is regrettable, because I acknowledge that the speech that I am about to make is a Second Reading speech. I would have opposed the Bill on Second Reading had I had the opportunity to do so.

Madam Deputy Speaker : Order. Unfortunately, time has moved on, and the hon. Gentleman must make a Third Reading speech.

Mr. Couchman : I take your point, Madam Deputy Speaker, but I have contained myself during the wide-ranging discussion on the two groups of amendments.

As has been said exhaustively, the purpose of the Bill is to abolish the presumption in the current criminal law that a boy under 14 is incapable of sexual intercourse defined as penetration, whether natural or unnatural. It is presumed in common law that a boy aged between 10 and 13 is physically incapable of an offence that involves penetration and cannot therefore be charged with rape, but only with the less serious crime of indecent assault.

The Bill would amend the law to allow a boy between the ages of 10 and 13 to be charged with the appropriate offence if he commits any unlawful sexual act involving penetration. It seeks only to change the definition of the offence under which a 10 to 13-year-old juvenile male can be charged. It does not seek to make any provision for punishment of the new offence, and that is one of its great weaknesses. Although it may be seen as providing greater equity and justice in law for the victims--we have heard a great deal about that from my hon. Friend the Member for Sutton and Cheam (Lady Olga Maitland) and others--it does not provide any greater deterrents. I am especially

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worried by some of the comments made by my hon. Friend the Member for Hertford and Stortford (Mr. Wells). He seemed to underestimate the seriousness of the offences that we have to consider. There will be no distinction in the punishment available between the existing crime of indecent assault and the new crime of rape by juveniles. There was no debate on Second Reading and only 20 minutes' discussion in Committee. No amendments were moved in Committee and there were only three speakers, including the Minister. I regret that the Bill has had rather less discussion and consideration than it merits. It is a major step in terms of seeking to criminalise, as my hon. Friend the Member for Hertford and Stortford put it, certain offences committed by 10 to 13-year-olds.

I am especially concerned that the Bill is deficient in two major respects. It does not seek to define the exact nature of the new crime in terms that can be proven in court. It fails to provide new punitive measures for the crime that would deter potential offenders and treat adequately those convicted.

Definition is at the heart of the Bill. Numerous examples are available to show that sexual offences are very difficult to prove, as has been mentioned by my hon. Friends the Members for Wyre Forest (Mr. Coombs) and for Sutton and Cheam. "Rape : from recording to conviction", the Home Office research and planning unit paper No. 71, gave the results of a three -month study in 1985 which concluded that cases of rape or attempted rape recorded by the police have only a one in four chance of resulting in a conviction. According to the study, only between one tenth and one quarter of women suffering rape report the crime to the police.

The university of North London has conducted more recent research which suggests that the conviction rate has fallen below the 1985 average, despite changes in the criminal justice system. Of 114 cases of rape or attempted rape reported to north London police stations, only 15 reached the Crown court and only four resulted in prison terms. A further 11 cases were sent to court as indecent assault charges. As one of the researchers concluded :

"corroboration is very often difficult in rape cases."

It is worth mentioning again the timely example of the recent case of a Southwark school teacher who was allegedly raped by a 13-year-old while a 14-year-old held her down. The teaching unions were reported as saying that they believed that this was the first reported case of a suspected rape by a pupil on a teacher in a British school. It now appears highly likely that the case will not be pursued because there is insufficient forensic evidence to support the claim by the victim.

Mr. Harry Greenway : I draw my hon. Friend's attention to the fact that the Bill may assist in dealing with this problem : many young lady teachers are intimidated, sexually and in other ways, by boys under the age of 14. It is vital that those teachers are given better support and a better defence, and the Bill will begin to do that. Does my hon. Friend agree?

Mr. Couchman : I agree entirely. I am certainly not against the principle of the Bill. I am concerned that the Bill does not provide the right answer to the problem that my hon. Friend highlights. The Southwark example shows just how difficult it would be to prove a case against 10 to 13-year-olds who have previously been deemed incapable in law of rape or similar offences. It also calls into question

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the claim that simply changing the definition of such offences would comfort or compensate the victim by providing greater equity under the law.

My second reservation concerns penalties, treatment and deterrents.

Mr. Barry Porter (Wirral, South) : I have been trying hard to follow my hon. Friend's argument. As I understand it, he is saying that a new crime has been invented. That is not the case under the Bill. The crime-- rape--remains the same. If the presumption about boys of 10 to 14 is abolished, people who could not otherwise be charged can be charged. No new crime is involved.

The reason I came into the Chamber today is an unusual one for a Member of Parliament. I came to listen to the arguments being deployed by my hon. Friend the Member for Harlow (Mr. Hayes), who has now left the Chamber. It would help if people were not accused of using Friday mornings to get rid of later Bills--

Mr. McCartney : The hon. Gentleman does it regularly.

Mr. Porter : I seek your protection, Madam Deputy Speaker, from such sedentary interventions. I--

Madam Deputy Speaker : Order. I have made it plain that I deplore seated interventions. However, if the hon. Gentleman had followed my other precept, that interventions should be short, he would already have sat down.

Mr. Porter : I take the point, Madam Deputy Speaker. I shall act in accord with your wishes, although what is short is a matter of subjectivity.

Madam Deputy Speaker : Order. It is a matter for me.

Mr. Couchman : That was such a long intervention that I am not entirely sure what the point made by my hon. Friend the Member for Wirral, South (Mr. Porter) was. I suspect that it was to do with whether we have invented a new crime. My hon. Friend said that he came into the Chamber to listen. If he had been here from the beginning of the debate, as I have been, he would have heard a great deal of argument about the definition of rape and about the definition of sexual offences covered by the Bill. I shall try to make progress more swiftly. I hope that the matter will become clear to him.

Mr. Barry Porter : Will my hon. Friend give way?

Mr. Couchman : I must resist on this occasion.

The Bill makes no provision for the treatment and punishment of offenders under the proposed new category of offence. It will not deter juveniles from committing such offences simply by changing the definition. Under existing legislation, indecent assault is the strongest charge that can be brought against a juvenile under 14, yet even that is not recognised as a grave crime for punitive purposes. The promoter of the Bill, my hon. Friend the Member for Harlow (Mr. Hayes), acknowledged as much in Committee. He said :

"Section 53 of the Children and Young Persons Act 1933 gives the courts the power to order the long-term detention of juveniles convicted of grave crimes."--[ Official Report, Standing Committee F, 17 February 1993 ; c. 4.]

My hon. Friend has confirmed that point only this morning. The same problem applies to those under 14 who

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are charged with murder or with manslaughter, and no one doubts the severity or gravity of those crimes. Hon. Members do not underestimate the gravity of the crime of rape. That is what we are talking about and that is what the Bill is about.

We should look to the judiciary for comment. In an article in The Times on 9 March, Justice Cohen, a designated rape judge, said in reference to the Bill :

"It is to be hoped that it will soon become law because a change is long overdue and that consideration will be given to review the powers of the courts to deal adequately with young offenders charged with this offence."

The treatment is inadequate and no remedies are set out in the Bill. It seeks merely to abolish the presumption that a 10 to 13-year-old is incapable of the offence.

Judge Cohen then said :

"The new government proposals to set up service training centres for young offenders between the ages of 12-15 will not apply to young rapists unless they are persistent offenders."

If a young 13-year-old commits one rape, he is unlikely to come into the category in which the Government's proposals will hold sway. What will happen to youngsters between the ages of 10 and 12? They will not be covered by the proposed service training centres. The judge concluded :

"There is still no adequate way of dealing with young rapists, especially those under 15. It may be that the time has arrived to rethink our policy of dealing with young sex offenders in order both to help and to punish the offender himself and to deter him and others from offending in this way."

No one disagrees that a change in the law is overdue and should be made soon. However, it would be extremely premature to create a new category of juvenile offences before we have even found adequate ways in which to treat existing categories of offenders.

Furthermore, a definitional change without the necessary provisions for treatment and punishment could undermine the whole purpose of the Bill and provide yet more evidence for the cynics who regard the law as an ass. It would also place judges in an impossible position in sentencing such juvenile offenders.

The whole purpose of the sentencing to which I have referred would be to deter. By itself, the name given to an offence is not a deterrent to those who might commit it. The fear of detection, coupled with the severity of the punishment, is much more likely to deter. The gravity of the charge of rape, for example, does not appear to have acted as any deterrent against adults committing such a crime. There is, however, abundant evidence of the deterrent effect on the victim and the police of the disparity between the crime and the punishment.

In a recent celebrated case, a 15-year-old boy--I accept that he would not be covered by the Bill--raped a fellow pupil for not giving him a birthday kiss. The judge decided that the boy should be placed under a three-year supervision order and should pay £500 to his--

Mr. Michael : On a point of order, Madam Deputy Speaker. As has been said several times, we are on Third Reading, but we seem to be hearing about issues that have nothing to do with the Bill and are even now hearing about a case involving someone outside the age range dealt with in the Bill. We have been told several times that Conservative Members are not filibustering, but there is a temptation to think that that is what is happening.

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