Memorandum submitted by the Criminal Bar
("CBA") IN RESPECT
This paper should be read in conjunction with
the CBA response to the White Paper "Protecting the Public".
We have targeted clauses that give us our greatest concerns.
We accept the case for the abolition of the
rule in DPP v Morgan (ie that a genuine but mistaken belief in
consent should NOT afford a defence unless it is reasonable).
However we feel it is important that the objective test should
be tempered by the jury considering what a reasonable person "sharing
the characteristics of the defendant" would have thought.
See Clauses 1(3)(a) and 1(3)(6). Otherwise the objective test
could be too harsh on the young and those with learning difficulties.
It follows that a similar approach should be adopted in respect
of other offences involving a reasonable person doubting whether
"B" consents. [assault by penetration Clause3(3), sexual
assault Clause 5(3), and causing a person to engage in a sexual
act without consent Clause 7(3)]
We feel that forced oral sex should NOT be included
within the definition of rape. We recognise that it should be
treated as an offence of the utmost seriousness, but we fear that
to include it within the definition of rape may lead juries to
be less likely to convict.
Accordingly, we recommend that Clauses 1(1)
and 2(1) be amended with the removal of the words "or mouth"
whilst the offence of assault by penetration (Clauses 3 and 4)
should be widened to include forced oral sex by adding the words
"or mouth" to Clause 3(1)(a) and Clause 4(1)(a). It
should be noted that this will not undervalue the seriousness
of forced oral sex, as the offence of assault by penetration will
carry a maximum of life imprisonment Clause 3(5).
Clause 17Meeting a child following sexual
We are concerned that this new offence will
penalise a state of mind "thought crime" without appropriate
safeguards. As presently drafted the two earlier meetings or communications
could be entirely innocent. Accordingly we suggest that Clause
17(1)(b) be amended to ensure that the defendant will have been
found to have had the appropriate intention at the time on at
least two earlier occasions as well as at the time of the meeting
or travelling to the meeting. This should be achieved by inserting
the words after at the time in Clause 17(1)(b) ". . . and
at the time of at least two earlier occasions.".
Clause 33Sexual activity with a person
with a mental disorder or learning disability
Concern was expressed at the potential width
of "learning disability". Whilst "Mental Disorder"
has the meaning given by Section 1 of the Mental Health Act 1983
Clause 81(4), the Bill does not seek to define "learning
disability", save that by reference to it the complainant
is unable to refuse. The complainant is deemed under the Bill
to be unable to refuse if (a) he lacks the capacity to choose
whether to agree to the touching (whether because he lacks sufficient
understanding of the nature or possible consequence of what is
being done, or for any other reason), or (b) he is unable to communicate
such a choice to A. Arguably "for any other reason"
in Clause 33(2)(a) should be deleted and the Bill should seek
to define "learning disability".
Clause 48Care workers: interpretation
We felt that "regular face to face contact"
could be improved by adding the words "or frequent"
after regular. See Clause 48(2)(b).
Clause 52Indecent photographs of persons
aged 16 or 17
We cannot see any justification for the exclusion
of the words "or make" from Clause 52(3) in respect
of the insertion list 1A(2).
Clause 74Sexual activity in public
There is enormous concern at the potential width
of the offence in Clause 74(1). There is a danger that it will
be used by unreasonable neighbours in neighbours' disputes. There
is also a danger that excepting from the offence activity witnessed
only by willing observers will encourage the development of "no-go"
areas in public places, such as parks and open spaces, which are
known to be used at certain times for sexual purposes and which
as a result the rest of the public avoid. To minimise this effect
we recommend that Clause 74(1)(d) be amended so as to delete the
bracketed words relating to the "willing observer".
Clause 78Presumptions about the absence
This clause spoils what is otherwise a well
drafted Bill. It is a classic example of legislative overkill.
It will be difficult to operate. It will make trial judges' directions
to juries more complicated and more difficult to follow. It will
make convictions less likely rather than more likely. Shifting
burden of proof depending on whether assumptions are established
will do nothing to clarify directions on consent.
Clause 78(2) is unworkable. It could lead to
a defendant being arbitrarily prevented from relying on truly
relevant evidence. A complainant's evidence cannot be divided
into two parts where it is only admissible for one purpose.
Clause 78(2) lists a set of circumstances which
if proved to exist would mean that a complainant is taken not
to have consented unless sufficient evidence is adduced to raise
an issue as to whether the complainant consented. We feel that
this represents a step backwards. For example under the law as
at present if a complainant is asleep, he or she cannot consent,
and a submission through fear is not consent etc. Our recommendation
would be for a more tightly drafted set of circumstances which
if proved would mean that the complainant did not consent.
We oppose the reversal of the burden of proof
set out in Clause 78(1)(b). This is not simply an objection of
principle. If the circumstances set out in Clause 78(3) are established,
then clearly there will be a heavy evidential burden upon a defendant
with regard to the mental element, particularly with the abolition
of the rule in Morgan. It will not increase conviction rate and
shifting burdens of proof depending on circumstances will just
serve to confuse. The provision may not be compliant with ECHR,
and, in any event, is an unnecessary complication for trial judges
Anonymity for defendants in sexual offences
1. Should there be an exception to the usual
rules about the publication of the name of a suspect or defendant
in cases involving allegations of sexual offending? At present,
unless the case falls into another exception, there can be reporting
of the name of a suspect from the time of arrest. This has lead
to a number of cases, usually involving high profile men, where
the publicity has been extensive and critical even though no charge
or conviction follows. It is our view that there should be pre-trial
protection from identification in the media for suspects and defendants.
2. The two obvious exceptions to the general
rule are age of defendant or because another case is pending and
publicity would prejudice a future trial.
3. The Contempt of Court Act 1981 is designed
to control the media in all cases but it is frequently acknowledged
that it fails to curb an increasingly powerful media who ignore
the rules for commercial gain. In the last 10 years there has
been a marked increase in the "tabloid" media's obsession
with crimes involving sexual allegations. The Government has accepted
that details of the Sex Offenders Register should not be made
public because of the dangers of the public acting as vigilantes,
often encouraged by media coverage. The reality is that the Law
Officers are powerless in the face of wide publication by many
newspapers, radio or television stations.
4. The Human Rights Act 1998 also affords
some protection. Article 8 protects the right to privacy. It can
be argued that the freedom of the press to publish the name of
a suspect or defendant is paramount. But the protection of the
identity of the suspect or defendant is a proportionate response
to the problems of extensive press reporting. See R. v.
A Local Authority and a Police Authority in the Midlands, ex p.
L.M.  1 F.L.R. 612, QBD. Archbold 2003 16-110a.
5. Sexual offences already fall into a special
category because complainants are given anonymity at all stages
of the criminal process. This, of course, extends beyond conviction
unless lifted voluntarily by the complainant. The reason for this
anonymity is obvious: a complainant is entitled to be spared additional
embarrassment over and above the trauma of the sexual assault
6. It must follow that the stigma of a false
allegation of the same type of crime can be just as harmful to
a suspect or defendant falsely accused. If the allegation is proved
then the media can have publish almost as it chooses.
7. Crimes of a sexual nature are often based
upon a complaint and this does not require corroboration. Indeed,
because of the fact that these crimes arise from private circumstances
this is bound to be the case. The law and procedure has been amended
in recent years to support the complainant's allegation because
it has been felt by many that the conviction rate for sexual offences,
especially rape, has been too low.
8. However, the concomitant of this change
is the increased danger of the false allegation by a complainant
which will only later be explored fully at trial and, if false,
exposed. By then the damage has been done. There are few other
crimes of this seriousness and sensitivity where the trial would
proceed on such limited evidence. It is right that this should
be the case but there should be a balanced response that protects
the defendant up to the point when the allegation is proved.
9. Anonymity for defendants would be lifted
following conviction or in special circumstances upon application
to a Circuit Judge. It is our view that the publication of details
leading to the identification of a suspect or defendant should
be forbidden at any time before a conviction.