| Previous Section | Index | Home Page |
Mr. Edward Leigh (Gainsborough): Is my hon. Friend erecting a new maxim--that the law for heterosexual offences should generally be the same as that for homosexual offences?
Mr. Clappison: No, I am not erecting a new maxim and was carefully trying not to do so. I was trying to act in the interests of justice and fairness all round, but without necessarily erecting such a principle.
Mr. Desmond Swayne (New Forest, West): On the question of justice and fairness, given the enthusiasm that
my hon. Friend has expressed for new clause 4, would it not be proper that an offender under new clause 4 should be reasonably--
Mr. Deputy Speaker (Mr. Michael J. Martin): Order. [Interruption.] My apologies. I thought that the hon. Gentleman was outwith the scope of the new clause. He may carry on.
Mr. Swayne: If one of the partners to an act under the terms of new clause 4 claimed as a defence that he thought the other was over 17, would not that defence be perfectly reasonable?
Mr. Clappison: The defendant would have to establish the ingredients of the defence.
Others may disagree with my view, but this is not a legal novelty. As I have said, in heterosexual cases, it has been available as a defence since 1922, and I believe a form of it was introduced in 1885--so it may be a case of returning to Victorian values. As I have said on other occasions when we have debated the Bill, I am now speaking on the basis of my personal view, nor do I seek to equalise the law in every respect. I shall not be presenting a checklist of ways in which the law should be made identical; I am trying to establish a way of acting fairly and in the interests of justice in individual cases.
It should be borne in mind that the availability of the defence is strictly limited by age, and that the onus is on the defendant to establish that he believed that the other party was over the age of consent and had reasonable grounds for that belief. If defendants are still to be given the chance of trial by jury--I hope that they will, in these and in other cases--it will be for an English court and an English jury to use their good sense in deciding the matter.
A defendant will not escape liability by saying that he thought the other party was over the age of consent; he will also have to establish that he had reasonable grounds for that belief, and establish it to the satisfaction of the court.
I believe that the defence that is available in heterosexual cases in England and Wales, and in both heterosexual and homosexual cases in Scotland, should be available in cases such as this in England and Wales. That would be in the interests of justice and fairness all round. I have already commented on new clause 3; new clause 2, however, goes wider than the existing defence for heterosexual sex in a number of important respects.
I note that the new clause refers to knowledge of someone's age, rather than belief, as the basis for a defence. The availability of such a defence is not restricted to those who have previously been charged with similar offences, as in the case of heterosexual sex; and, more important, it is not restricted to those under 24. That is a big difference, in my view: I regard age as an important consideration.
Dr. Evan Harris (Oxford, West and Abingdon):
The hon. Gentleman may be about to deal with this. He is aware from discussions that we have had outside the Chamber that it is extremely unlikely that new clause 2 would have been selected if it had been tabled in exactly the same form as the form in which it was tabled in Committee--which was right, because we do not want to
Mr. Clappison:
I shall, in fact, deal with that point now. By reason of the distinctions that I am making, I am not minded to support new clause 2, which the hon. Gentleman tabled. I do not consider it satisfactory. Much of the blame for that, however, arises from the attempt to use the defence supplied by the Government, about which I shall say more shortly. As the hon. Gentleman has said, the defence in new clause 2 bears a striking similarity to the breach-of-trust defence involving 16 and 17-year-olds in clause 2(2)(a). It may well be--as the hon. Gentleman has perhaps conceded--that those who tabled new clause 2 were trying to avoid inconsistency between the defence provided in their amendments and that provided in the Bill. The defence provided in the Bill is surprising, to say the least. It is also not the only example in the Bill of bad drafting and bad judgment.
The defence provided in clause 2(2)(a) deals with people in a position of trust. Those who are in a position of trust include those who look after, and are regularly involved in caring for, a younger person. However, unlike those whose sexual activities arise out of other social contexts, surely those who are in a position of trust and are regularly involved in caring for a younger person could reasonably be expected to have some knowledge of the other party's age, and to know whether the other party was under 18.
In breaches of trust involving 16 and 17-year-olds, the Government's proposed defence of mistake of age is not limited by age. A man of 42 and a young man of 18 could therefore rely equally on the defence. The Government's proposed defence is therefore very strange.
Mrs. Teresa Gorman (Billericay):
Does my hon. Friend have a view on the activity of television producers who, in their programmes, advocate sexual intercourse with people under 15? A week or so go, a programme was broadcast in which that act was not only physically demonstrated, but advocated and then glorified. Does he think that the programme's producer should be subject to such provisions on prosecution?
Mr. Clappison:
My hon. Friend makes a very important point. Those who produce and broadcast programmes should be aware of their wider responsibilities. The general scenario that she described was thoroughly unattractive. One would think that responsible broadcasters would seek to avoid such scenarios, and not to give in to the temptation of sensationalism.
It really will not do for the Minister to say, in reply to new clauses 2 and 3, "We can't possibly consider the amendments. We don't want to go beyond changing the law on consent and taking the younger party out of
liability, as we are doing in new clause 4. We want to confine ourselves to those issues, and leave everything else to the review." Ministers cannot say that when they themselves are creating a new form of defence in the Bill.
The defence that the Government are proposing in the Bill is vastly inferior to the long-established defence of mistaken belief, which is available already in the Sexual Offences Act. The Government have made a grave mistake in offering their form of defence, which will widen considerably the current one. The Bill will certainly make the defence of mistaken belief available to much older men--in their 30s, 40s or 50s--whereas the current one is already, rightly, limited to young men under 24, who are therefore in the same general age bracket as the younger person concerned.
The Government are making a mistake in proposing their defence. Moreover, those who tabled new clause 2 may have been attempting to use the Government's proposed defence in their new clause--the passage of which would be a mistake and should be avoided.
In my personal view, in the interests of justice and fairness--bearing in mind the state of the law in England and in Scotland, and in cases involving heterosexual and homosexual sex--a similar form of the defence available in cases involving heterosexual sex should be made available in those involving homosexual sex. However, it should be made available only without watering-down the very strict requirements that must be established--specifically of age and of the person concerned not having been charged previously with the same offence--and with the strict necessity of establishing reasonable belief. I believe that that form of defence is satisfactory and is in the interests of justice, unlike the form of defence proposed by the Government for cases of abuse of trust involving 16 and 17-year-olds.
Mr. David Borrow (South Ribble):
I referred on Second Reading to the criminalisation of young gay men under the age of consent. The hon. Member for Oxford, West and Abingdon (Dr. Harris) and I tabled an amendment on that in Committee. I am grateful to my hon. Friend the Minister for having thought about the issue and introduced a new clause on it.
4.45 pm
| Next Section
| Index | Home Page |