Examination of Witnesses (Questions 60-79)
TUESDAY 8 APRIL 2003
MR PETER
ROOK QC, MS
JAN BERRY,
MS CATHY
HALLORAN, MR
MICK AYERS
AND MS
JANET ARKINSTALL
60. I think the passport photograph has given
material for the sketch writers! At least, we will see tomorrow.
On a serious point, Jan Berry may I ask you about Clause 70 and
the effect that will have on proving prosecutions. Will it make
it easier or not?
(Ms Berry) I think our preference is for the offence
as it stands at the moment, because we think that this could actually
make it more complicated, in particular where exposure takes place
within a dwelling. I think to try to police this will be extremely
difficult with whatever evidence. With families moving around
inside their own homes or lodgers moving around inside a home,
to prove recklessness would be extremely difficult. Our preference,
if this is to stay, is that there should be some intention rather
than the word 'reckless'. If we take all the different interpretations
reckless has had within the criminal law, we think this is probably
too wide, particularly within a private dwelling.
61. What is your view of the maximum penalty
of two years for exposure? Do you have any view on that?
(Ms Berry) Maximums are always very difficult. This
is supposed to be a sort of preliminary offence before a more
serious sexual offence is committed. Our view is that with regards
to a power of arrest there should be a statutory power of arrest.
Very often the penalty provides the link to a power of arrest.
At the moment, if you have people indecently exposing themselves
and you need to use a power of arrest to remove them, you have
to consider that there will be a breach of the peace. We feel
that in this type of circumstance you need to be able to use a
power to remove the person from the situation rather than wait
for there to be a breach of the peace to provide you with a power
of arrest. The maximum penalty does actually link sometimes to
whether it is an arrestable offence. If it is not an arrestable
offence, we do believe it should have a power of arrest, and we
do believe it should be more serious if the offence is committed
against a child.
62. You believe there should be a separate offence
for exposure to children and exposure to adults.
(Ms Berry) Yes, we think there should be a separate
offence, which should carry a power of arrest. I think we even
go as far as to say that if the offence is committed against a
child then there should be consideration for automatic placing
on the sex offenders' register. That is a fairly drastic recommendation
to make but there is a fair amount of evidence that people who
do commit more serious crimes against children actually start
by exposing themselves. I think that this is one avenue where
we can be seen to be trying to prevent offences in the future
rather than waiting for a more serious offence to be committed.
Mr Clappison
63. I know the existing law is pretty out of
date and somewhat obscure, but would it be your view, Mr Rook,
that section 70 is making a criminal offence out of behaviour
which at present is legal? Is it extending the scope of the criminal
law possibly?
(Mr Rook) I think it is. Undoubtedly. I certainly
have no difficulty that the offence should be widened. I think
the point about exposure to children is well made, but with the
safeguards I have spoken about earlier so that the wrong people
are not targeted. It is extending the law but, provided we have
the safeguards, I have no difficulty with the maximum of two years.
I am not sure it is necessary to have a separate offence for children.
Chairman: Clause 74 now, Sexual Activity
in Public. Mr Winnick.
David Winnick
64. Jan Berry, are you saying that the police
have had many complaints, many difficulties, over sex in one's
own private garden?
(Ms Berry) No.
65. Are you therefore surprised that this is
now going to become part of the Act which will stop such activity
if it does take place?
(Ms Berry) I suppose we are somewhat surprised. I
think we are more surprised because of the inconsistency with
the way that some of this is worded. I cannot sit here and say
we have been inundated with complaints about sexual activity in
somebody's back garden. That said, if a back garden or a front
garden was particularly open to the public eye, then you would
obviously deal with that. Our particular problem is concerned
with sexual activity inside public toilets.
66. I will come to that in a moment. So far
as you know, would it be right to say that the complaints that
the police have received of sex in one's own private garden have
been very few?
(Ms Berry) Very limited, yes.
67. We MPs receive many complaints and I must
confess I have not received any complaint of one's neighbours
having it off in a garden. Therefore you do not really see any
particular reason why this should be included.
(Ms Berry) No.
68. The point you were coming to about public
toilets, one of their Lordships, Lord Thomas, said in the debate
which took place in the Lords not so long ago, "It strikes
me as being ridiculous that intercourse in a public toilet with
the door shut is okay" (if this goes through as it is) "but
in the open air on a mountainside apparently is not." You
presumably would agree with that, would you?
(Ms Berry) Yes, I would totally agree. From a police
point of view, there are public toilets which members of the public
do not feel able to go to because of the use to which they are
put. I think that is unwarranted. I think the law, if it goes
through in this way, will actually make that lawful. It will stop
people going there. If people go there without knowing the reputation
of the toilets, it puts them in some difficulties as well—and
this could be children. Our view is that what goes on behind closed
doors between consenting adults of the right age is appropriate,
but that should not be in public toilets.
69. This business which you have been referring
is "cottaging" is it not? Is it not correct to say that
at a time when homosexuality was illegal there was a tendency
(which is one way of putting it) for people who wanted to engage
in homosexual activity to go into toilets and do it because there
were not any other places in which to engage in this activity.
Is that the history of it?
(Ms Berry) That could be an explanation. I think also
it became the sort of culture of an area, where people who wanted
to engage in that type of behaviour would go to a particular area
to do that. It could be because of homosexuality, but this would
actually make it an offence between heterosexuals as well as anybody
else. In that respect, our view, from a practical policing point
of view, is that public toilets are not appropriate places for
sexual intercourse to be taking place—it affects people
who are going there for the reason the public toilets are there;
it obviously would affect children; it is not an appropriate use
of public toilets. I think the law needs to make that very explicit.
70. I do not want to pursue this much longer,
Chairman, but what do you say to the point that the police—so
it is said and it may not be true—spend far too much time
going round public toilets to see if all this sort of activity
is going on when there is much more important work in dealing
with criminality, as we understand it, to be dealt with.
(Ms Berry) There are always claims that the police
should be doing something else when they are actually trying to
stop people from doing what they want to do on a particular occasion.
The police clearly need to prioritise how we use our time to the
greatest effect, but there are occasions when the use of public
toilets or other places for unlawful purposes requires us to take
some course of action. I do not accept that police officers as
a matter of course today go to try to find public toilets which
are being used for inappropriate purposes. I think that comes
from intelligence, and we are actually acting on intelligence
and complaints from members of the public.
71. Mr Rook, do you have any particular views
on this?
(Mr Rook) Just one, if I may. It echoes, I think,
your concern. We are concerned that this may create no-go areas.
We are all conscious that there are no-go areas in certain public
parks and so on. The way Clause 74(1)(d) reads, if anything it
is going to encourage it, is it not? Should you not be adding
something like ". . . if a reasonable man saw the activity
they would consider it offensive" rather than the current
74(1)(d)?
Mr Clappison
72. We have been speaking about sexual activity
and we have made the assumption we are talking about sexual intercourse,
but actually 74(1)(d) casts the net a lot wider than that, to
what an old-fashioned person would call heavy petting. That is
all caught up in 74(1)(d), is it not?—the feeling of private
parts beneath clothes.
(Mr Rook) Yes.
73. Could I ask you if it is your view, again,
that in this case it is extending the boundaries of the criminal
law.
(Mr Rook) It is all a case of striking a balance and
not allowing the law to be too intrusive where it is truly consensual
activity. Having said that, clearly there must come a limit to
what can go on in these no-go areas which people might chance
upon. That is why we have the concern that it actually does not
go wide enough. Because, surely, if a reasonable person might
chance on the activity and find it offensive, then that should
be circumscribed.
74. Section 74(1)(d) would cover activity in
people's gardens, would it not?
(Mr Rook) It has to be in a public place, but, yes.
75. Could I try you out on a car, for example:
would it include sexual activity in a car if that was in a public
place?
(Mr Rook) Indeed, it could. It has to be a matter
of degree, does it not? In a remote part, where it is unlikely
to cause offence, it is very different from, perhaps, a public
toilet.
Mr Cameron
76. Let us take the example of the car, the
window half down, in a car park in the Lake District. You could
argue under this law that the people who were having sex
in that car were being reckless as to whether someone might see
any part of him or her because other people use the car park.
I just want to be clear about the extension of the law. What offence
would they be committing at the moment, or would they not be committing
one? Is that how the law is being extended? Perhaps this is more
a question for Jan Berry.
(Ms Berry) Sexual intercourse in a public place is
not an offence in itself.
77. It will be if this comes in.
(Ms Berry) It would be. At this moment in time it
is not but it would be covered by things like breach of the peace
and other pieces of legislation you would have to use for those
purposes. There are bye-laws as well within areas, which would
cover it if it was in car parks.
78. But you are not expressly changing the law.
Is that not what is changing it? Let us take this couple in the
car halfway up a mountainside or a car park in the Lake District.
At the moment, having sex in the car, they are not actually breaking
the law. You might use a bit of other law to stop them doing what
they are doing—though it is very unlikely—but here,
for the first time, they would expressly be breaking the law.
Is that fair, Mr Rook?
(Mr Rook) I think it is. That is why you must, we
would suggest, have a clause with a reasonable person being offended
by the activity.
David Winnick
79. Is it not the case, where sexual activity
has taken place in cars, perhaps since cars have been around,
that people use their commonsense? Therefore, in utter privacy,
in so far as they are pretty certain it is private, they engage
in sexual activity. It is quite likely that a lot of people would
not be around if activity of that kind had not taken place in
cars! Therefore we should not, I imagine, be too concerned about
the matter.
(Ms Berry) This is very dodgy ground! At the moment
there is no offence of having sexual intercourse in a public place.
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