Examination of Witnesses (Questions 140-159)
TUESDAY 29 APRIL 2003
HILARY BENN
MP, MS MICHELLE
DYSON, MS
ANN COLLIER
AND MR
DAVID FORD
Mr Clappison
140. I understand there have been some changes
in the position of the Government on Clause 78. Could you give
us a short description of the situation as it presently stands
on Clause 78 and how the law is going to work with the amendments.
(Hilary Benn) As I described a moment ago, there are
going to be the two categories: the first category is where the
court will be able conclusively to presume that consent was not
present and the second category will be where there is a presumption
that consent was not present but that the defendant can try and
show on the balance of probabilities that, notwithstanding those
circumstances, there was consent. I think what we are seeking
to do in relation to those two approaches is, as I indicated a
moment ago, to send out a very clear message that does shift the
balance in favour of the complainant. It also reflects a lot of
case law, in which case one could make the argument, why are people
concerned about putting that in statute which merely reflects
case law that has developed over time, and that does act as a
guide to the jury. With all of these changes, I would make the
point again that the jury will still have to weigh the evidence
and will have to reach a verdict beyond a reasonable doubt. Going
back to Setting the Boundaries, as you will be aware, Setting
the Boundaries had proposed a statutory list of circumstances
in which it could be conclusively presumed that consent was not
present but, for the reasons that I indicated earlier, we did
not agree with that because we thought that, unlikely though it
may be, if somebody is unlawfully detained for example, that consent
could be present, it would be hard to assert safely in all circumstances
that might not be the case and therefore, in those circumstances,
it is sensible to make clear that the presumption is that consent
was not present but the defendant can try and show on the balance
of probabilities that notwithstanding, in this case, the fact
of unlawful detention, there was consent. There were also other
proposals which Setting the Boundaries put forward, for
example the question of drink and drugs which I know you have
touched on in your previous evidence session. We did look at that
but, in the end, we came to the view that it was not possible
to determine what would constitute so drunk that consent could
not be given. In other words, how drunk is too drunk to give consent?
Therefore, for that reason, we did not agree with that provision
going into the Bill as it is currently drafted.
141. Could you just explain the changes which
you propose since the Bill was originally drafted on Clause 78
because I think the original intention was that the rebuttable
presumption should apply to both consent and belief in consent
and you have changed that to belief in consent.
(Hilary Benn) As I did refer earlier to that change—there
were going to be two requirements—we dropped the evidential
burden, that is subsection (1)(a) and subsection (2) of the clause,
because, on reflection, it did not add a great deal to the process
and it was very easy for the defendant to bring this issue into
play by simply going into the witness box and saying, "Actually,
I thought she did consent." So, for those reasons and mindful
of the point that was put in the earlier question that we need
to look at how juries are going to be directed in relation to
these cases, we thought it was sensible to drop that and to focus
on the presumptions that I was describing in the first part of
my answer to the question.
142. I understand that. I understand that it
may be very well meaning to try and make lists of circumstances
like this where it would be presumed that somebody did not believe
that consent had been given, but do you not think that the risk
with this is, as has been suggested to us by some of the evidence,
that it is actually making things a little more complicated and
that all the factors which you outline in section 78(3)—violence,
somebody being asleep, physical disability and so on—are
all factors which a jury could simply take into account under
subsection (3) of section 1 as to whether or not a reasonable
person thought that somebody was consenting or not.
(Hilary Benn) I do not think that it over-complicates
it. As I indicated earlier, I think it is an assistance to the
jury in guiding them through the process and, as I indicated,
in relation to the presumptions relating to violence, unlawful
detention, being asleep and so on, case law has reflected all
of those and I do not see any difficulty with putting that in
statute as a guide to the jury. It helps the process and it also
makes it very clear. If you have someone who is unlawfully detained,
I think that, in those circumstances, if that is shown to be the
case, it is not unreasonable then to say to the defendant, "Could
you please demonstrate on the balance of probabilities that, notwithstanding
the fact that you had unlawfully detained someone, in fact they
consented to have sex with you." I do not think it complicates.
I think it clarifies, it provides guidance and it will assist
the jury in reaching a verdict on the basis of all the evidence.
So, I do not accept the argument.
143. That is argument which has been put to
us, that it makes it more difficult.
(Hilary Benn) I think that the circumstances described
in Clause 78 are pretty clear and will assist the process.
Chairman: Now for something completely
different, exposure.
Mr Prosser
144. Are the Government proposing to introduce
amendments to Clause 70 to insure that the new exposure offence
does not criminalise the activities of naturists and streakers
and other so-called non-sexual activities.
(Hilary Benn) In answering the question, may I just
put this in its context. As you will be aware, this was of course
a recommendation again from Setting the Boundaries and
it might be helpful if I set out very clearly at the start that
it is not in any way intending to criminalise naturists and I
think I have sent more letters to my parliamentary colleagues
making that point than on any other part of this Bill.
David Winnick
145. That is interesting!
(Hilary Benn) That is a sort of unscientific sample
because clearly the naturist community has been very active in
writing to Members of Parliament to express concern, but it is
not in any way intended to criminalise naturists at all nor indeed
to change the way in which naturism is dealt with by the law currently.
That is not the purpose of this whatsoever. At the same time,
I think we all recognise that the existing offences are particularly
arcane in their wording and this is an offence which can cause
real alarm and distress to people and I think that we all accept
that. Having said that, when it comes to knowing or intending
that alarm or distress will be caused, nobody could argue that
a naturist sets out knowing or intending to cause alarm or distress,
so I do not see in any circumstances how naturists could be caught
by that offence. Where we are reflecting is on the issue of recklessness
and where that has caused concern and it did come up in the previous
evidence session which you had and, if there are ways in which
we can provide further reassurance, then we will look at that,
but we would have to look then at the consequences if recklessness
were, for example, to be removed from the offence, and what impact
that might have on the offence overall. It is not the intention
and we do not think it catches it but we are happy to look again
at that in order, if necessary, to provide further reassurance
because that is not what we are seeking to do.
Mr Prosser: Can you give us the same
assurance to streakers and those who portray mass nudity as an
art form?
Chairman: We have not had a lot of representations
from streakers, Mr Prosser.
Mr Prosser
146. But it is an interesting point.
(Hilary Benn) I think everyone would accept that there
is the world of difference between a streaker at a football match
where it is quite hard to say that alarm or distress would be
caused and somebody who exposes themselves to a woman when they
are alone in a railway carriage. It seems to me that those two
are not extremes but it is not intended to criminalise the former
offence and I do not see how it could be because, how can you
feel alarmed and distressed when you are with 70,000 people or
when you are walking past the Tate Modern, I think it was? However,
if you are a woman alone in a railway carriage and someone exposes
themselves to you, this is extremely intimidating, very threatening
and it is right that the criminal law should capture this in order
to protect people. We do not think that the law would catch streakers,
we do not think that the law would catch naturists but we do intend
that the law will catch those individuals who behave in that way
and cause real alarm and distress to individuals.
147. In order to give force to those assurances,
would you support an amendment which required the offence to demonstrate
that the perpetrator was seeking sexual gratification, which has
been tabled?
(Hilary Benn) I think that there are real difficulties
with that for this reason. First of all, it would require proof
of the motive behind the exposure and that could be quite difficult.
Was it sexual gratification? Was it loutishness? Was it aggression?
It would clearly make it more complicated to look at the "why"
surrounding the circumstances that made a person do it. The second
difficulty is that, if it is only for sexual gratification, the
person who does it deliberately to intimidate somebody else and
says, "I was not getting any sexual gratification myself,
I did it for another reason", that would not be captured
if you had a sexual gratification provision within the offence.
What matters and what should matter in relation to this offence
is the alarm or distress that is caused to the individual rather
than the particular motivation and I just do not think that sexual
gratification as a consideration would work for the reasons I
have outlined because it would miss other motivations that may
lead people to do this, which can equally cause real alarm and
distress to individuals. That is the difficulty with that proposal.
148. The Police Federation told us that they
would have some difficulty in policing exposure within houses/dwellings.
Why does the Bill go that far and take into account exposure within
dwellings?
(Hilary Benn) Because there may be circumstances where
somebody comes into your house and then exposes themselves to
you. If it happens, that too could be equally intimidating. I
referred to the example of that happening, say, in a railway carriage
but, if you have a woman home alone and somebody comes in to,
I do not know, fix the washing machine or do some building work
or sell insurance and then exposes himself, it seems to me right
and proper that the law should catch those circumstances should
they arise and that is the reason for making provision for the
offence within a dwelling.
149. Is that based on evidence that it is happening
to any degree now?
(Hilary Benn) I do not know whether there is evidence
that could answer the question in relation to the number of cases
but, should that circumstance arise, then it seems to be perfectly
reasonable that the criminal law should enable that behaviour
to be captured in the interests of protecting the person exposed
to who would feel alarmed and distressed in those circumstances.
Whether it is in somebody's house or in a railway carriage, the
impact is the same, so why should the offence not equally catch
it.
150. What about the practicalities of policing
it? The Police Federation said it would be very difficult to police.
(Hilary Benn) No more difficult than the practicalities
of policing the woman who is exposed to alone in a railway carriage.
It is exactly the same issue. A complaint would be made, the police
are going to have to collect the evidence and then the Crown Prosecution
Service is going to have to decide, in those circumstances, whether
a prosecution should be brought. I do not see that the evidence-gathering
is potentially any more difficult than if it happened when there
are only two people present . . . It could be in a public place.
It could be on a path at night: there is a person who is exposed
to and a person who does the exposing.
151. Lastly, have you given any consideration
to making exposure to a child a separate offence?
(Hilary Benn) The offence covers that and we think
that the way in which the offence is worded, together with the
other provisions in the Bill, do cover children as well as adults
because it is important that protection is provided right across
the board and of course one recognises that children can be particularly
affected by being exposed to in this way.
152. The Police Federation were suggesting that
exposure to a child should be a separate offence as opposed to
all the other exposures in the Bill.
(Ms Collier) We do have other offences earlier in
the Bill about causing children to watch sexual acts which would
pick up exposure as well as other behaviour where a child is forced
to watch it. It is not as though there is no provision in the
Bill which specifically relates to children being forced to watch
sex/sexual acts, but the offence of exposure has been drafted
to apply generally.
Miss Widdecombe
153. Minister, I was not entirely reassured
by your sympathy for streakers. Would you confirm that to take
your clothes off and run in a public area will still remain an
offence.
(Hilary Benn) The Bill sets out the nature of the
offence. In all circumstances, there has to be a complaint and
the police have to respond to that complaint. In relation to streakers
at sporting events, the current practice, as I am sure you are
aware, is that the police tend to apprehend the individual and
put them outside the stadium together with their clothes and that
is the way in which that particular offence is dealt with. The
final stage in this process, not in relation to streakers but
in relation to any indecent exposure, is of course for the Crown
Prosecution Service to decide whether a prosecution should be
brought. The truth is that it will depend on the circumstances.
It is not intended that the way in which this offence is worded
is going to change the current position where, frankly, a large
element of commonsense is used in applying the law and it would
depend very much on the circumstances and I think that is the
right and proper approach.
154. So, the assurance you are giving me is
that by these additional requirements of alarm and distress, you
are nevertheless not changing the current situation in which somebody
who did not cause alarm and distress but who nevertheless exposed
themselves in a public place could still be prosecuted?
(Hilary Benn) No. In relation to the offence, there
would have to be alarm and distress.
155. Not the offence but alarm and distress.
(Hilary Benn) I am sorry, in relation to the offence
of indecent exposure, there would have to be alarm and distress.
That is what the clause itself says quite clearly. In the operation
of that, as with the existing rather arcane offences, obviously
it is a matter for the police to respond to a complaint, if they
receive one, and for the police then to decide whether to refer
the case to the Crown Prosecution Service or not and to apply
commonsense in doing so and then for the matter to come before
court and—
156. Let us have a specific example in order
to sort this matter out. Suppose that I am out with a young child
and somebody rushes past, for a bet, dare or whatever it may be,
without his clothes on. I would not be alarmed and I would not
be distressed but I would be highly offended. Do I have a recourse
in law?
(Hilary Benn) The offence is that you have to be caused
alarm or distress. There are other offences also on the statute
book, for example outraging public decency which is something
onto which we may come a little later, and again a complaint could
be made to the police in those circumstances. It would then be
a matter for the police, in deciding whether to refer it to the
Crown Prosecution Service, as to whether they thought it was appropriate
for a prosecution to be brought in that case and, in truth, it
would depend, as I am sure it does currently, on precisely what
the circumstances were. So, it is not indecent exposure alone
because there remains the common law offence of outraging public
decency. I hope that is helpful.
Chairman: Now we will turn to sexual
activity in public.
David Winnick
157. It seems that the Home Office has got itself
into a bit of a twist over sexual activity in public, namely Clause
74. That is a question.
(Hilary Benn) The origin of Clause 74, as you know,
is that there was a recommendation in Setting the Boundaries
that there should be a specific offence. It was also, interestingly,
a recommendation of the Criminal Law Revision Committee in 1984
and that is what Clause 74, which we have now announced that we
are dropping, attempted to give effect to. I think the important
point to make is that we saw Clause 74 as drafted as seeking to
provide additional, if you like, reassurance that is complementing—and
this is very important—the existing offences, section 5
of the Public Order Act and the common law of outraging public
decency to which I referred a moment ago, not replacing them.
Some of the misunderstanding that arose in relation to Clause
74 was because not everybody appreciated or chose to appreciate
that it did not replace these two offences, it added to them.
On reflection, because of that reason, i.e. the misunderstanding,
and also because there were real problems of definition, and then
one gets into the kind of areas that you, Mr Winnick, were questioning
the witnesses on at the previous evidence session which I think
very clearly demonstrated the difficulty with the clause as it
was drafted. For all of those reasons, we decided in the end to
drop that and to in effect retain the current legal position with
all the protections that it offers and certainly evidence you
have received indicates that that provides the protection—it
covers, for those who are concerned about it, sex in public lavatories
which is not legal currently and would continue not to be legal.
So, for those reasons, we decided to drop Clause 74 and to rely
on the two existing pieces of legislation but to make one change
which is to make the common law offence of outraging public decency
triable summarily which may assist prosecutors in deciding to
bring cases. So, it provides all the protections that are there
currently. It does not change the position. We have listened to
the arguments and reached the decision that we have.
158. When you were looking at this aspect and
your officials were drafting what was Clause 74 which, as you
say, is to be dropped, had there been such a number of complaints
about sex in public, couples doing it in the garden and all the
rest of it?
(Hilary Benn) No. We were, in good faith, trying to
give effect to, as I say, the recommendation contained within
Setting the Boundaries and to the recommendation of the
Criminal Law Revision Committee. That was the motivation. It was
a recommendation made to us. We tried to draft an offence to give
effect to that. In summary, it did not work for reasons of which
the Committee will be very well aware and, on reflection, having
sought, in good faith, to do what was recommended by Setting
the Boundaries and deciding that it did not work.
159. It was never a particular problem, was
it?
(Hilary Benn) No.
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