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Mr. Blunkett: Yes, it is precisely because we need to take non-legislative measures for prevention and early intervention that the group will be looking at the matters that my hon. Friend has set out. I am sure that hon. Members of all parties will join me in appealing to the press to understand that it is better, and safer for the public, to treat someone than to leave that person untreated and unsupported on a register. Such a person is in danger of committing sexual offences again. Treatment has to be the right approach, although it is always difficult to find locations that will not offend local residents, or make them feel threatened. We all understand that because we are all constituency MPs, which is a great strength of this House.
Before anyone else intervenes, I commend the Bill to the House.
2.50 pm
Mr. Dominic Grieve (Beaconsfield): I welcome the way in which the Home Secretary opened the debate and presented this matter to the House. I disagreed with his position only when he provided his own analysis of the pitfalls that may have beset those in another place, including my hon. Friends and the Baroness Noakes, in particular, when they presented the various matters to the Lords. There may be a tendency to squeamishness in this place. No one is more capable of robust humour than my noble Friend. In those circumstances, to think of her comments as an unintended pitfall may do her less than justice. As I found in my days as a law student, one need only go to the law reports to the case of R. v. Collins, which fell open at the page describing what constituted an effective and substantial entry for the purposes of committing burglary with intent to rape because of the number of times that it had been read, and which caused general hilarity because the facts of the case were so bizarre. On what is a sombre matter, the Home Secretary should forgive my noble Friend for introducing a note of hilarity to the proceedings, which we sometimes badly need.
One of the key features of the Bill is the extent to which it has been improved in the other place. When it was first published, the key definitions in clauses 1, 76 and 77 of what constitutes rape and how it should be proved gave me serious cause for concern. I feared that there would be a substantial issue of principle between both sides of the House and perhaps between individuals as the Bill proceeded. I feared that changing the presumptions and changing the test for consent from an objective to a subjective test would cause us real problems. I am happy to be able to say that those problems have evaporated. The way the Lords approached the matter and applied their expertise to a particularly difficult problem, as well as the fact that we have maintained the presumptions but made them evidential and not probative, have made a substantial difference to preserving proper civil rights and fairness in trials while bringing about changes that were long overdue.
I have never understood the subjective test in rape. Indeed, I suspect that few jurors understood it either. I do not know whether the changes will make a significant difference, but I am content that they will provide an objective test of whether consent has been provided.
Mr. Cameron: Does my hon. Friend have any concerns about the fact that while the other place has done a great tidying-up job, in particular with clauses 75 and 76 on consent, those provisions are still complex and will still require the judge to lead the jury through complicated legal hoops when what really should be at issue is putting the facts before the open court?
Mr. Grieve: My hon. Friend makes an important point. A number of judges have told me that they remain concerned about how they will sum up a case properly to the jury on the new tests. The old tests had the merit of considerable simplicity. That said, that task is not necessarily impossible. My field of practice, which was far removed from this area of the law, although I did deal with it, was health and safety at work, where there are precise reversals of the burden of proof in certain areas. I have not normally seen it as a great difficulty for
the judge to explain that to members of the jury in a way that is fair to the defendant and enables the jury to understand. I certainly undertake that we will not allow this key matter to pass through the Committee without further consideration.
Vera Baird: The hon. Gentleman referred to clause 76, which seems to have been simplified considerably in the other place. My right hon. Friend the Home Secretary referred to the reverse presumptions coming into play if a person had been drugged. The only situation that is almost akin to that in clause 76 is that those presumptions come into play when a complainant is asleep or otherwise unconscious at the time of the sex act. Some rape drugs do not make a person unconscious; they paralyse or stupefy them. Given that the offence of administering such a rape drug is included in the Bill in clause 62, does the hon. Gentleman think that it would be a good idea to say that the presumptions in clause 76 should apply where such a drug has been administered?
Mr. Grieve: The hon. and learned Lady makes an important point. The short answer is that that is precisely the sort of matter we must consider in some detail in Committee. It would be foolish of me to attempt to go into such detail in a Second Reading debate. I accept that there are areas in which the legislation could be improved. We should not say that we are satisfied until the Bill has cleared all its stages in this House. I will be happy to look into that aspect of it.
I do not wish to survey the Bill in its entirety as the Home Secretary did—it is not necessary and would take up too much time—but I shall highlight one or two areas that still need some attention. The right hon. Gentleman mentioned naturists and their concerns about the exposure offences and the offence of voyeurism in clause 69. Although the other place seems to have dealt satisfactorily with exposure, naturists' concerns about what might constitute voyeurism, which might interfere with their legitimate activities, bears some consideration owing to the odd use of the word "structure" in that clause. If naturists decide to go into a garden behind a high wall where they are invisible from any surrounding buildings or any person and someone puts a ladder against the wall and climbs it to photograph them, are the naturists protected by the definition of "structure"? That may be an area in which we can improve the legislation. It seems to me that the term "structure" might protect them only if it refers to a building.
The Home Secretary mentioned sex in public lavatories and I do not need to say any more about that in view of his helpful comments. However, on the principle behind this, which I think he accepts, the concern expressed in the other place was not homophobic. From experience at the Bar, I know of a number of cases involving heterosexual activities in public lavatories that are as antisocial and unpleasant in every way as any other form of activity. I put that on the record because concern has been expressed that the provision was an expression of a return to homophobic fears; it is not.
The Home Secretary rightly highlighted recent worrying events in relation to sexual grooming. I join him in expressing sympathy to Shevaun's family and I hope that she may soon be reunited with them. The Home Secretary may have slightly misunderstood the
point that I was trying to make. I apologise, as I may not have been as clear as I should have been. I think that a seven-year sentence is provided for in the Bill, not five as the Home Secretary said. Whether it is seven years or five, the point at issue is that, in a sexual grooming case, the person arrested may not have had the opportunity to commit any of the other offences set out in the measure. In those circumstances, if the intervention was rapid enough, people would breath a sigh of relief.If there is no more to the matter than that, I accept that the seven-year sentence might be appropriate, but if someone is arrested and the evidence of intent for sexual grooming is overwhelming—for example, if he is found in possession of material that is clearly linked to committing a serious sexual offence and he has a past record of having committed such offences—is there sufficient upward flexibility to allow the judge to protect the public from further offences? That is the point that I was trying to make.
Mr. Blunkett: First, the hon. Gentleman is correct to note that the sentence is seven years. I am grateful to him for drawing attention to my mistake.
The hon. Gentleman's second point is valid. I had slightly misinterpreted his remarks. If there is a definable further act that would warrant a much more substantial sentence, the Crown Prosecution Service should bring that charge. I take his point, however: we may need a cumulative way of reflecting the severity of what has been done, in the light of previous convictions for similar offences. I think that is the point that he was making and I have a great deal of sympathy with it.
Mr. Grieve: I am most grateful to the Home Secretary. That, too, is a matter that we can look at constructively in Committee to see whether we can provide some improvements.
Sir Paul Beresford: My hon. Friend might reflect on the recent case of an individual who had no record but arrived at a meeting expecting to buy a 10-year-old girl for sex; he was armed with wire cutters, tape, condoms and all the works. Fortunately, he met a six-foot-something burly Metropolitan policeman, but the crime that he intended to commit could have been taken into account in the sentence.
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