APPENDIX 21
Memorandum submitted by Liberty
BACKGROUND
1.1 Complainants in rape cases have been
given anonymity since 1976 when S.4 of the Sexual Offences (Amendment)
Act of that year introduced prohibitions against publication of
any matter which could lead to their public identification. Subsequent
amendments to the Act have extended this protection to both female
and male complainants in the wider classification of "rape
offences", the protection beginning from the moment the allegation
is made and extending indefinitely.
1.2 "Anonymity" is a misnomer
in that the name and details of the complainant are known to the
defendant and the court, and the prohibition is against press
publication of information which could identify the complainant
to the public at large. The anonymity is not absolute, in that
under S.4 (3) of the 1976 Act the trial judge may remove the restriction
if he considers it is in the public interest to do so. S.3 of
the Sexual Offences (Amendment) Act 1992 provides that anonymity
can be displaced when publicity will induce witnesses to come
forward, and the defendant's defence would be substantially prejudiced
without this. Such directions are rarely made, but preserve the
principle of open justice where it is necessary to over ride the
public interest in victims being anonymous.
1.3 The principle of anonymity was introduced
as a result of the Heilbron Report (Report of the Advisory Group
on the Law of Rape: Cmnd 6352, December 1975). The precedent for
anonymity came from blackmail cases, where orders prohibiting
the publication of the complainant's name and details were traditionally
made under the Court's discretionary power at common law—the
purpose of anonymity was to encourage women to come forward and
report rape, without the additional distress of private details
being generally publicized. The report said,
"we are fully satisfied that if some procedure
for keeping the name of the complainant out of the newspapers
could be devised, we could rely on more rape cases being reported
to the police, as women would be less unwilling to come forward
if they knew there was hardly any risk that the judge would allow
their name to be disclosed". (paragraph 154)
1.4 The Heilbron committee considered whether
the defendant should also be anonymous and concluded, forcefully,
that he should not be. At paragraph 177,
"the reason why we are recommending anonymity
for the complainant is not only to protect victims from hurtful
publicity for their sake alone, but in order to encourage them
to report crimes of rape so as to ensure that rapists should not
escape prosecution. Such reasoning cannot apply to the accused.
The only reason for giving him anonymity is the argument that
he should be treated on an equal basis. We think it erroneous
to suppose that the equality should be with her—it should
be with other accused persons and an acquittal will give him public
vindication."
1.5 Despite the recommendations of the Heilbron
Report, the 1976 Act did include anonymity for the defendant in
cases of rape, introduced by concessionary amendment during the
debate stage. This was removed by S.158 of the Criminal Justice
Act 1988 following a recommendation by the Criminal Law Revision
Committee (Fifteenth Report, Sexual Offences, Cmnd 9213, April
1984) The CLRC, which approved of the Heilbron proposals, recommended
that defendants' anonymity be removed. They found there was no
reason in principle why rape should be distinguished from other
offences, concluding at paragraph 2.92,
"the `tit for tat argument'—that the
man should be granted anonymity because the woman has it—is
not in our opinion valid despite its superficial attractiveness"
SUBMISSIONS
2.1 Liberty accepts the principle of anonymity
for complainants in rape or other serious sexual offences[83]
is justifiable. The disparity between the numbers of rapes that
apparently occur each year and the very low number of convictions
by the courts demonstrates that the criminal justice system is
failing the victims of rape. In order to ensure that those who
are raped feel able to report this to the police victims should
retain their right to anonymity. Liberty agrees that the protection
from publicity encourages victims to report the crime.
2.2 Liberty does not support the extension
of this principle to defendants. The parties in a rape offence
are not "equal" in the sense that they both require
the protection of anonymity: the public interest in encouraging
complainants to give evidence permits a departure from the general
rule that court proceedings are truly public hearings. There is
no equivalent public interest in permitting others to remain anonymous.
Liberty considers that the original arguments as outlined above
continue to be valid, and that the public interest in open justice
over rides the "tit for tat" argument. Trials should
take place in public, and the press should be able to report them
in full. The rights of the public to scrutinize the criminal justice
system, even where the parties themselves may not welcome it,
is a fundamental protection which should not be eroded.
2.3 The importance of this cannot be over
stated and is a fundamental provision of Article 6 of the Convention
on Human Rights: the right to a fair and public hearing open to
the scrutiny of the press ought not to be limited unless there
is an overwhelming public interest in so doing. The exceptions
to the public nature of a trial contained within Article 6(1),
"the press and public may be excluded from
all or part of the trial in the interests of morals, public order
or national security in a democratic society, where the interests
of juveniles or the protection of the private life of parties
so require or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity would prejudice
the interests of justice."
should not be extended to include anonymity of a
defendant who is, in principle, in no different position from
any other innocent citizen facing a serious charge.
2.4 Liberty does not consider that the principle
of equality of arms contained within Article 6 is violated by
any perceived "unfairness" caused by the disparity in
anonymity in such cases. The defendant is not put at a disadvantage
in the conduct of his trial by the press being unable to report
identifying details of the complainant. The identity of the complainant
is known to him and to the court, and he is not prevented from
any legitimate conduct of his defence by the anonymity of the
accuser. As far as the jury is concerned, the complainant and
defendant are in the same position within the court.
2.5 Liberty understands that there may be
a public perception of apparent "unfairness" where a
defendant has been acquitted of the charge, the publicity attending
the trial has been extensive and detailed, and the complainant
continues to be protected by anonymity. However, where the acquittal
can properly be seen, in the words of the Heilbron report, as
a "vindication" of the defendant's innocence, perceptions
of unfairness are misconceived. Where the public perception is
or might be that "there is no smoke without fire", the
defendant in a rape offence is in no different position from any
other defendant who has faced trial where there has been extensive
publicity of the facts.
2.6 Liberty considers that arguments based
on "no smoke without fire" are not strong enough to
justify further limitations on the right of the press to report
trials—the answer to such argument is of course that the
presumption of innocence under Article 6(1) provides defendants
with the protection from innuendo that is required, and that a
respect for the integrity of the jury system and its decisions
should be positively encouraged.
February 2003
Attachment
LIBERTY'S
SECOND READING
BRIEFING ON
THE SEX
OFFENCES BILL
IN THE
HOUSE OF
LORDS
Introduction
1. The Sexual Offences Bill introduced into
the House of Lords on 28 January 2003 seeks to reform the law
on sexual offences and strengthen measures to protect the public
from sexual offending.
2. Liberty welcomes the opportunity to comment
on the provisions of the Bill because, while we welcome the codification
of some aspects of the law relating to sexual offences, we remain
concerned that some of the proposals do not strike an adequate
balance between the individual's right to freedom of expression
through sexual behaviour and the victim's right to be protected
from unwelcome sexual contact.
Analysis of the Bill
PART 1—SEXUAL
OFFENCES
Clauses 1-8—General offences
3. Clauses 1-8 make provision for general
sexual offences, as follows:
— Clause 2—rape of a child under
13
— Clause 3—assault by penetration
— Clause 4—assault of a child
under 13 by penetration
— Clause 5—sexual assault
— Clause 7—sexual assault of
a child under 13
— Clause 8—causing a person to
engage in sexual activity without consent
4. Clause 1 of the Bill is significant in
its attempts to clarify the law relating to consent in rape. We
note that the effect of the new definition is that not only the
offender who knows or is reckless (ie gives no thought) as to
whether the victim consents will be guilty of rape (Clause 1 (2)),
but also the offender who acts in circumstances in which a "reasonable
person" would doubt whether the victim consents and does
not act in a way that such a reasonable person would consider
sufficient in all the circumstances to resolve such doubt (Clause
1 (3)). We note that similar provisions are found in Clause 3
(assault by penetration) and Clause 7 (causing a person to engage
in a sexual activity without consent).
5. We are conscious of the background to
this change, namely the concern that the low conviction rate in
sex cases may have flowed in part from the fact that the concept
of consent was largely subjective (ie depending on whether the
defendant himself actually believed there was consent). We do
accept the need to strengthen the law in this area in order to
afford greater protection to the victims of sexual offences. Further,
while we are generally concerned to ensure that the elements of
criminal offences are defined with sufficient clarity as to discharge
the requirements of legal certainty inherent in the European Convention
on Human Rights, Article 6 we accept that this objective aspect
of the consent definition is reasonably "tightly" worded;
and hope that the twin concepts of (i) whether a reasonable person
would in all the circumstances doubt whether the victim consents;
and (ii) the actions a reasonable person would take to resolve
any doubts as to consent, are ones which juries should be capable
of grappling with.
6. We note that Clauses 3 and 4 make provision
for the offence of assault by penetration. While we welcome the
attempt to make specific provision for non-penile penetration
(which we suspect will cover a large number of sex cases) we query
whether it would lead to greater clarity to specify that the new
offence only applies when the assault is with something other
that the penis (such as a digit or bottle). Without such clarification
we are concerned that there is an unnecessary duplication between
Clauses 1 and 3 and 2 and 4. In other words we are concerned that
an offender guilty of rape under Clause 1 or 2 will automatically
also be guilty of the offence of assault by penetration under
Clauses 3 or 4, with no immediately apparent justification. The
consent provisions and sentences for the two offences are identical,
and so we do not understand why the Clause 3/4 offence should
not be limited to non-penile penetration.
7. We generally welcome the attempt at Clauses
7 and 8 to criminalise causing a person to engage in sexual activity
as this will effectively provide a further option for prosecutors
in sex cases. For example, we are conscious that in the past it
may not have been straightforward to prosecute an offender who
forced a victim to watch him masturbate but did not actually touch
the victim; or who forced the victim to masturbate themselves.
Such behaviour would now fall naturally within the provisions
of Clauses 7 or 8 and is therefore to be welcomed.
8. We note that Clauses 2, 4, 6 and 8 provide
for the offences of rape, assault by penetration, sexual assault
and causing a person to engage in sexual activity where the victim
is under 13. In each of these clauses (as opposed to the "mirror"
offences on adults in Clauses 1, 3, 5 and 7) consent is not an
issue, as the child under 13 is deemed incapable of giving legally
significant consent to any form of sexual activity. Anyone who
commits any of these sexual acts with a child under 13 is therefore
automatically guilty of the relevant offence.
9. While we do not take issue with the fixing
of 13 as the age below which consent in law cannot be given, we
are concerned to ensure that his section does not unduly criminalise
behaviour where there has been consent in fact by the under-13
year old. We say this because there are, and will be, cases where
11 and 12-year olds genuinely consent to sexual contact with each
other ("Doctors and Nurses"?) or where a 14 year old
boy and his 13 year old girlfriend wish to engage in sexual behaviour
to which both consents. The concept of the distinction between
consent in law and in fact is notoriously difficult and is one
which the Criminal Injuries Compensation Authority has to grapple
with, as paragraph 9(c) of their Rules precludes them from awarding
compensation to an individual who as suffered mental injury alone
from a sexual offence but who consented in fact to the offence,
albeit that they were deemed not to have consented in law. However
the emerging jurisprudence on this issue (see, for example, R
v Criminal Injuries Compensation Appeals Panel, ex parte
A (2001) 2 WLR 1452 and R v Criminal Injuries Compensation
Appeals Panel, ex parte JE [2002] EWHC 1050 (Admin) (in Court
of Appeal, 29 January 2003) recognises that there will be relatively
young children who are Gillick competent to engage in sexual
behaviour—in other words that they comply with the approach
set out in that case for determining whether a child has capacity
to reach the decision to engage in sexual relations[84].
10. Accordingly we would like to see further
consideration being given to the approach to be taken in cases
where the actual consent of the alleged child victim is an issue.
It may be that this could be factored into the Code for Crown
Prosecutors so that the prosecution of such cases is less likely;
alternatively that if the issue is squarely at large in the case,
the Director of Public Prosecutions' consent would be required
for a prosecution; alternatively that entirely separate offences
be created for those cases where there has been factual but not
legal consent. At the very least, actual consent would have to
be a heavily mitigating factor for the defendant convicted of
these offences. Alternatively if it is felt, as we suspect it
might be, that these provisions are intended to protect the child
victim from the adult offender, the wording of the offences in
Clauses 2, 4, 6 and 8 could be altered to make clear they only
apply to older offenders, such as those over 18, or perhaps 16.
We would certainly like to see this issue looked at again.
Clauses 9-17: Child Sex Offences
11. Clauses 9-17 make specific provision
for sex offences on children as follows:
— Clause 9—sexual activity with
a child under 16
— Clause 10—causing a child under
16 to engage in sexual activity
— Clause 11—inciting a child
under 16 to engage in sexual activity
— Clause 12—engaging in sexual
activity in the presence of a child
— Clause 13—causing a child to
watch a sexual act
— Clause 14—offences under clauses
9-14 when committed by offender under 18
— Clause 15—arranging or facilitating
the commission of a child sex offence
— Clause 16—marriage exception
for clauses 9-14
— Clause 17—meeting a child following
sexual grooming etc.
12. The offences in Clauses 9-14 provide
that the offender has a defence if s/he reasonably believed that
the alleged victim was 16 or over. We recognise that this is a
common sense provision which has worked in a similar form over
the years with the so-called "young man's defence" to
rape allegations.
13. However we are concerned that there
is still inadequate recognition of the concept of actual consent,
which if anything is all the more pressing in the 13-16 age group.
For example, an 18 year old boy engaging in fully consensual mutual
heavy petting with his 15 year old girlfriend would have committed
offences under both Clauses 9 and 10 (assuming he knew her age),
and therefore liable to imprisonment for up to 14 years, regardless
of that fact that she was capable of consenting to the activity
and did so consent. A 16 year old boy would be similarly liable
to imprisonment for up to five years by virtue of Clauses 9 and
10 read with Clause 14. We cannot believe that the Bill was intended
to criminalise such widely occurring and harmless activity and
would be concerned to see the issue of actual consent in this
context re-visited.
14. We are a little concerned by the drafting
of Clauses 11-13. Effectively these make provision for "secondary"
sexual offences of inciting a child to engage in sexual activity
(Clause 11), engaging in sexual activity in the presence of a
child (Clause 12) and causing a child to watch a sexual act (Clause
13) where either the child is under 13 or where the child is 13-16
and the defendant does not reasonably believe the child is over
16. We are conscious that these clauses would seem to overlap
with clause 8 (causing a child under 13 to engage in sexual activity)
which we had certainly assumed would cover the sort of activities
mentioned in Clause 12 and 13. We therefore wonder if the drafting
would be clearer and more clearer and more effective if (i) the
offence in Clause 9 was expanded to include incitement and to
specify the activities in Clause 12 and 13 as examples of the
way in which the Clause 9 offence can be committed; and (ii) reference
to children under 13 were removed from Clauses 11-13. This would
also have the benefit of making clear that Clauses 1-8 generally
dealt with the under 13's and Clauses 9-14 with the 13-16 age
group.
15. We are also concerned by the breadth
of Clause 13 (causing a child to watch a sexual act). We accept
that an adult handing an under 16 year old child pornographic
material (which Clause 13 specifically encompasses) may not be
appropriate but question whether it should be deemed "so"
criminal as to justify liability for imprisonment up to 10 years
(Clause 13(2)(b)). We are especially concerned again that, when
read with Clause 14 (offences by under 18s), this offence does
not acknowledge actual consent, and would make two 15 year old
boys looking at pornographic material together, in fully consensual
fashion, liable to imprisonment for up to five years (Clause 14(2)(b)).
We do not feel this is a proportionate response and would ask
that the breadth of Clause 13 be looked at again.
16. We are concerned by the breadth of Clause
15 (arranging or facilitating the commission of a child sex offence).
It appears from the Explanatory Notes that this clause is intended
to cover, for example, the person who approaches an agency and
asks them to procure a child for sexual purposes. We cannot think
of many other examples where this would apply; and are concerned
that the existing and new provisions addressing conspiring, attempting
or inciting others to commit sexual offences and the new offence
in Clause 17 (meeting a child following sexual grooming) would
be adequate to address the activities Clause 15 is aimed at (although
please see paragraph 18). However, if this Clause is to be included,
we think that Clause 15(1)(b) should be clarified as without reference
to the Explanatory Notes it is not all clear what this refers
to (the fact that the offence can be committed even if the "recipient"
of the arrangement is an undercover police officer).
17. We note that Clause 16 provides an exception
to the offences in Clauses 9-14 for the offender who proves that
he was lawfully married to the child at the time the offences
took place. Therefore a foreign national who can prove that he
was married to a child of 15 would be entitled to have sexual
contact with her without falling foul of the offence in Clause
9. While we recognise the attempt herein to afford due respect
to cultures where marriage traditionally occurs at a relatively
young age, we are concerned that in theory this provision could
apply to legalise non-consensual sexual contact with under-13's
simply by virtue of marriage. We are concerned that the cloak
of marriage should not provide a defence to any sexual offence
where there has been lack of consent. R v R [1992]
A.C. 599 recognised a long time ago that a husband can rape his
wife, and we are concerned that Clause 16 anomalous in that it
does not clearly extend to full penetrative intercourse (applying
only as it does to "sexual activity" in Clauses 9 et
seq. but not the more specific offences of rape etc in Clause
1 et seq.); and for reason it deems that marriage may be
a defence to any non-consensual sexual activity other than handing
the wife pornographic material. We would therefore like to see
this issue reconsidered.
18. Clause 17 creates an offence of meeting
a child following sexual grooming. People can already be arrested
for conspiring, attempting, or inciting others to commit a paedophile
offence. The danger is that a law going further would mean prosecuting
people not for anything they've done but for things someone thinks
they might do—because someone is second-guessing their thoughts.
If you make people afraid that talking to your neighbour's children
could be seen as a paedophile offence, you actually make those
children less safe. Neighbours and communities are important to
keeping our children safe—both from abuse by strangers and,
sadly, from the far greater risk of abuse in their own homes.
In terms of "internet grooming", simply, the police
will almost never come across this information. That's why it's
so important for parents to be vigilant on behalf of their children.
We appreciate that the bill is slightly more restrictive than
the White Paper "Protecting the Public" in that it has
made grooming an offence to meet or to travel to meet the child.
However, this is still criminalisation of an act that is not in
itself criminal. In its admirable desire to prioritise child protection,
the government should be careful in creating what is effectively
"thought crime".
Clauses 18-27: Abuse of a position of trust
19. Clauses 18-22 mirror those at Clauses
9-13 apart from the fact that they relate to a situation where
the defendant is in a position of trust. The key distinction is
that these offences can be committed against the 16-18 age group.
We do accept the need to offer specific protection to those people
vulnerable by their residence in institutions etc, and welcome
the broad definition of "positions of trust" in Clauses
23 and 25. However, we query whether there really is a justification
for applying a higher age threshold to these offences. If Parliament
decrees that generally, the age of consent is 16, it is hard to
see why those in institutions etc have to be subject to a higher
age of consent. There may even be a risk that this provision could
stigmatise 16-18s in institutions, hinder their normal development,
and provide a further barrier to their integration with non-institutionalised
society. We are firmly of the view that breach of trust should
be an aggravating factor to the offence (potentially a heavy one)
but should not affect the age of consent. We wonder whether this
issue might be addressed more effectively by requiring judges
to increase the sentence to reflect the fact that the offence
was committed in breach of trust, as is similar with offences
which are racially aggravated but are essentially otherwise identically
defined.
20. While we acknowledge the attempt in
Clauses 26 and 27 to recognise that sexual relationships which
are not a concern can and do occur between those in a position
of trust and their charges, we would like to see explicit reference
therein to the need for such relationships to be fully consensual
as at presently drafted, the teacher who is already abusing his
pupil (and therefore a "sexual relationship" exists
between them) even without the pupil's consent would appear to
have a defence. We also do not agree with the marriage exception
in Clause 24 as this would appear to excuse even non-consensual
sexual behaviour within marriage which is out of step with R
v R approach set out above. In the abuse of trust context,
there is the additional concern that the "pupil" half
of the marriage may be pressured into agreeing to the marriage
in the first place, which makes this provision all the more of
a concern.
Clauses 28-32: Familial child sex offences
21. These clauses criminalise sexual activity
with a child family member (Clause 28) and inciting a child family
member to engage in sexual activity (Clause 29) while essentially
providing a defence if the offender can prove he did not know
that he was related to the victim. While we recognise the need
to address the particular concerns raised by incest we again query
whether this needs to be done in the form of a specific offence
rather than by way of an aggravating feature on sentence. We are
also again concerned at the raised age of consent (just as the
"trust" relationship does not either). We are very concerned
by the breadth of Clause 30 which defines family relationships
well beyond any blood link. Clause 30, when read with Clauses
28 and 29, would mean, for example, that the 30 year old younger
boyfriend of an aunt who had regularly been involved in caring
for her 17 year old niece would be guilty of an offence and liable
to imprisonment for up to five years for having sexual activity
with her, even if she fully consented to it (unless he somehow
did not know that she was his partner's niece). While such activities
may be hurtful and damaging to those involved, and considered
distasteful or scandalous by other, if there is full consent on
both sides, we do not accept that they should be criminalised.
We also find the marriage exemption in Clause 31 particularly
complex in the context of familial sexual relationships and cannot
see how it will be of any practical benefit.
Clauses 33-50: Offences against persons with a
mental disorder or learning disability
22. These clauses make specific provisions
for offences against those with a mental disorder or learning
disability, which we broadly welcome, conscious of the need to
protect this group in particular. We are conscious that others
with more specialist knowledge of mental health issues (such as
the Law Society and/or MIND) are making their own observations
on these sections. We know, for example, that they are concerned
to see that physical disabilities as well as mental disabilities
are covered; and may not be satisfied with the definition of "mental
disorder" adopted by the Bill in other ways. We would refer
the reader to those observations as it is likely that Liberty
would support them.
23. For our own part we would again canvas
the issue of actual consent. We say this because the fact that
a person has a mental disorder or learning disability does not
mean that they can never consent in fact to sexual activity, and
we believe it would be wrong to assume so. In the same way that
a child can be Gillick competent to consent to sex, a person with
a mental disorder or learning disability can have Re T[85]
or Re MB[86]
capacity to make serious decisions, including that to have sex.
We would therefore like to see consideration being given to the
role played by actual consent from such individuals, as from children.
Clauses 52-53: Indecent photographs of children
24. The effect of Clause 52 is to amend
the Protection of Children Act 1978 to criminalise the activities
relating to indecent photographs of children under 18 (as opposed
to under 16), subject to a defence that the photograph is one
of a child over 16, and the child consents. While we accept the
need to address the rapidly increasing evil of Internet pornography
we question whether policing this amendment will be realistically
possible. We say this because many 16-18 year olds look much older
than they are, and we can envisage the police being involved in
difficult judgement calls as to whether any of the offences are
made out. Given the increasing openness about sex and sexuality
in the media, even that aimed at young children, it is possible
that a provocative photograph of teenage girl band in a magazine
aimed at teenage girls would fall foul of these provisions, which
cannot be the evil at which they are aimed.
25. We would wish to see the police's stretched
resources focused on combating those photographs which are particularly
damaging by virtue of the fact that they involve children being
subjected to cruelty or abuse rather than those of older children
who may look even older than they are. We are also concerned that
the latter factor would make it hard for a recipient of the photographs
to know whether s/he was in fact committing a crime (ie is that
girl/boy in the photograph 17 or 19?) and this flies in the face
of the need for legal certainty in criminal provisions referred
to at paragraph 5 above.
Clauses 54-60: Prostitution and child pornography
26. While we generally accept the provisions
made in these sections, Liberty's policy has always been that
for prostitution should be legalised for the over 16s. We believe
that people who are above the age of consent should be able to
make choices as to how they lead their lives and that it is not
for the state to determine the morality of prostitution in terms
of criminality. Accordingly we object in principle to Clauses
56 and 28 (causing/incitement to prostitution and controlling
prostitution for gain) as we do not believe this activity should
be criminalised where the prostitute is over 16.
Clauses 61-66: Trafficking
27. Again we generally welcome these provisions
but defer to those with more specialist knowledge of this area,
such as Anti-Slavery International. We know, for example, that
they would wish to see the prohibition on trafficking extended
beyond trafficking for sexual exploitation (which these Clauses
provide for) and we would concur with that view. We see no reason
why this Bill, albeit predominantly about sexual offences, could
not offer protection to all victims of trafficking, for sexual
purposes or otherwise. We also note Anti-Slavery International's
concerns at the practical enforcement of these provisions given
that many, if not all, of the victims will be illegal entrants
to the UK and so may be reluctant to come forward and give evidence
for fear of deportation. Accordingly we support their recommendation
that witness protection measures should be introduced not only
to make it easier for them to give evidence (of the "special
measures" variety—TV links, screens etc), but also
including some undertaking that they will not be deported as a
result of coming forward.
Clauses 65-69: Preparatory offences
28. Clause 65 (administering a substance
with intent) is intended to address the growing evil of "date
rape" drugs such as Rohypnol, and we welcome the law's acknowledgement
of this problem. We also accept that Clause 66 (trespass with
intent to commit a sexual offence) seems sensible and workable.
We are a little concerned, however, by the breadth of Clause 64
(committing an offence with intent to commit a sexual offence)
as it is not clear what this will relate to that will not already
be covered by the range of sexual offences now to be available
(which includes incitement to some of the offences), together
with the established concepts of conspiracy, aiding and abetting
etc. If it is to be included we would be concerned to see that
the "preparatory" offences are narrowly defined to include,
for example, abduction and violence with a view to committing
a sexual offence, and not offences such as speeding, which we
think would be virtually impossible to prove and disproportionate.
Clauses 69-70: Sex with an adult relative
29. As we explained at paragraph 20 above,
we believe that while consenting sex between members of the same
family might be scandalous or distasteful, it should not be criminal.
Accordingly we object to these provisions.
Clauses 70-74: Other offences
30. We are concerned that Clause 70 (exposure)
is so widely drafted, with its requirement only that it be "reasonably
likely" (reckless) that someone who witnesses the exposure
will be caused alarm or distress, that naturists and others who
have no criminal intent will be caught by its provisions. We would
therefore like to see consideration being given to making the
mens rea "intention" to cause alarm and distress.
31. Clause 71 criminalises voyeurism. We
broadly welcome the Bill's recognition of privacy following with
the incorporation into domestic law of the right to privacy in
Article 8 of the European Convention on Human Rights via the Human
Rights Act 1998. However, we are not convinced that voyeurism
should be a matter for criminal law.
32. Clause 72 addressing intercourse with
an animal is of some concern to us. We say this because it is
by no means clear that the current animal cruelty legislation
cannot adequately deal with this issue, such that there is a need,
only now, to specifically criminalise it. We would assume that
the issues of cruelty to the animal in question is of greater
concern that the morality of the sexual act. However, if the offence
is to be created we do not see why it should be limited to vaginal
or anal penetration of the animal or the person. In other words
if the case is made out for criminalising bestiality, in the interests
of consistency, it should surely extend to all sexual acts with
animals rather than simply penetrative ones.
33. Clause 73 and its prohibition on sexual
penetration of a corpse is again novel in only now criminalising
something which has been a feature of life for many years, admittedly
a relatively rare one. We again query whether necrophila should
be specifically criminalised but otherwise broadly accept the
drafting attempts to protect those who are having sex with someone
who dies mid-coitus, and funeral parlour workers who by necessity
penetrate corpses in a non-sexual way.
34. Clause 74 dealing with sexual activity
in public is of a graver concern to us. Aside from the immediately
obvious practical problems in enforcing this provision, we do
not accept that the current public order legislation (the Public
Order Act 1986, ss. Four and Five) cannot adequately address the
issue. We consider that in the spirit of sexual mores being more
not less progressive, it is not appropriate for the state to seek
to intervene in this arena more directly than the law currently
does.
35. We do consider, like the Spanner Trust,
that consensual sado-masochistic sex should be decriminalised
and wonder whether this comprehensive review of sexual offences
law can look again at this issue.
36. We would also be concerned to ensure
that all sexuality-related offences are in fact removed from the
statute books by this Bill.
Clause 75: Offences outside the United Kingdom
37. We welcome the re-enactment at Clause
75 of the Sex Offenders Act 1997, part two, extending the remit
of domestic sexual offences legislation to those British citizens
or residents who commit them overseas. However we feel it appropriate,
in the name of legal certainty, that some consideration be given
to the lower ages of consent present in other countries.
Clauses 78-79: Presumptions etc
38. We note that these clauses effectively
provide for both rebuttable and irrebutable presumptions as to
the absence of consent. We acknowledge that the current sexual
offences provisions do not lead to many victims feeling their
rights area adequately protected (as is evidenced by the low conviction
rate) and therefore, albeit with some reluctance (bearing in mind
are comparable concern to avoid miscarriages of justice), welcome
the rebuttable presumptions set out in Clause 79(1)-(4) (which
permit, for example, an absence of consent and belief in consent
to be presumed where there is violence or the threat of it, or
where the victim is asleep).
39. We are more concerned at the scheme
of irrebuttable presumptions in Clause 79(5)-(6) which effectively
provides that where the only lack of consent comes from a third
party, the defendant is presumed to have acted unreasonably as
to consent. We do not see how this clause will operate in practice
and are concerned that it will be unduly onerous for defendants
who are frequently in the position of finding they have very little
positive defence to sex allegations other than "your word
against mine". We are similarly, but less, concerned at Clause
79(7)-(8) which provides irrebuttable presumptions as to a lack
of consent or belief in consent where the offender has deceived
the complainant as to the nature of the act or as to his/her identity.
We wonder if, for the limited number of cases when this is likely
to arise, this should still also be a rebuttable presumption.
PART 2—NOTIFICATION
AND ORDERS
40. Liberty agrees that some former sex
offenders may require supervision in the community. However, such
supervision may involve ongoing social stigma and significant
inroads into the privacy and freedom of the subject. It is vital
that final judgments about who does and does not present an ongoing
risk to the community should be left to the discretion of Courts
(ideally as part of the sentencing process) rather than the preferences
of police officers, or the straightjacket of mandatory legislation.
Further, being branded a sex offender, and subject to onerous
obligations, is a very serious matter in a modern democracy. Parliament
should not permit any citizen to meet such a fate unless he or
she has been charged, convicted and sentenced for an actual sex
offence in the time-honoured tradition.
41. Clause 82 to 95 replicate and modify
the Sex Offences Act 1997. It should be remembered that this Act
has already been amended to make its requirements much more onerous
than was intended when the original legislation was scrutinised
and passed (eg the obligation to notify of an intention to travel
abroad in accordance with regulations). The consequences of being
subject to Sex Offender Act notification are considerable. They
include an obligation to tell the police of any change of residence
for periods of seven days or more or any intention to travel abroad.
Further, the police may take your fingerprints or photograph any
part of your anatomy. Such obligations should only be imposed
by order of a Criminal Court. Instead, clauses 82 to 84 and Schedule
2 decide who is subject to the regime as a matter of automatic
and mandatory legislation.
42. It is a further disappointment that
the Government has failed to take the opportunity to remove those
formerly convicted of discriminatory offences (which are already
decriminalised or which Part Three of and Schedule Five to this
very Bill propose to repeal) from such stigma and punishment.
The Sexual Offences (Amendment) Act 2000 finally equalised the
age of consent at 16 years for gay and straight people alike.
However, gay men (aged 20 and above) previously convicted of consensual
sex with 17 year-olds remain subject to the Sex Offender Act regime
as transposed into this Bill. This is the case notwithstanding
the Government's clear view (as expressed in the endless debates
relating to the 2000 Act) that these people are not criminals
and present no risk to the public.
43. The Government's reported position on
this issue is deeply flawed. The line has been that citizens should
obey the law in operation at the time and that even where legislation
is disgraced and repealed, past offenders should not be decriminalised
or pardoned. This part of the position has a certain logic. However,
in defending the retrospective and non-judicial nature of the
Sex Offender Act regime (it bites upon those convicted of offences
before it came into being), the Government has repeatedly (including
in the European Court of Human Rights), characterised it as an
administrative risk-prevention measure rather than a criminal
punishment. On this basis, clauses 82 to 84 should not bite on
those who (on the Government's own case) do not present a risk.
Liberty believes that Parliamentarians will see the injustice
of such absurdity regardless of their previous positions on the
equalisation of the age of consent.
44. It is completely inappropriate that
clause 82(1)(d) should replicate the 1997 Act in making those
cautioned by the police for a sex offence subject to this onerous
regime. Liberty knows of many cases where suspects are cautioned
without legal advice and under inappropriate pressure from the
police. It is of even graver concern when such a caution results
in ongoing liability under the Sex Offender regime.
45. Liberty believes that a "child
sex offender" is often a child victim and always a child
in need. Subjecting such children to criminalisation is rarely
appropriate. Subjecting them to ongoing supervision by the police
instead of the engagement of therapeutic and educational professionals,
is both cruel and a wasted opportunity to prevent a damaged child
growing into a potentially dangerous adult offender.
46. Clauses 96 to 99 contain a sloppy and
potentially dangerous attempt to extend the Sex Offender obligations
to those convicted (fairly or otherwise) of sex offences abroad.
Under clause 96, a chief police officer may make an application
to a magistrates' court where it "appears to him"
that a person was convicted etc. abroad of an offence "corresponding"
with a domestic sex offence as listed in Schedule 2. While a complex
judgment as to the nature of the criminal law of eg Saudi Arabia
is pending in the local magistrates' court, clause 99 allows the
individual concerned to be subject to the Sex Offender regime
(with the associated stigma and obligations) on a interim basis.
Where the conditions set out in clause 96 are met, clause 96(5)
provides that the court "must" make a notification
order. Thus police discretion but no judicial discretion is permitted.
Further, it is not a condition that the country where the person
was convicted had any semblance of a fair system of law or that
the person was properly convicted.
47. Clauses 110 to 116 contain an affront
to any notion of traditional British Justice and will concern
Parliamentarians of every party-political persuasion and none.
In short, they permit the badge of paedophilia and accordingly
broad and ill-defined "prohibitions" (clause
110(6)), to be placed upon a person who has never been convicted
of any criminal offence. No criminal offences need even be anticipated
(clause 111(2)). A magistrates' court may make such an order (on
the application of a chief police officer) on the mere basis that
twice previously the subject has given "a child anything
which relates to sexual activity" or communicated with
a child "where any part of the communication is sexual"(110(3)).
The court need not fear the commission of sexual offences, but
find the order "necessary…. . . for the purpose of
protecting children generally or any child from harm from the
defendant". An 18 year-old who give a 15 year-old sibling
a condom inflated as a balloon, could find himself facing proceedings
for a "risk of sexual harm order". Likewise,
a parent or adult babysitter who watches love scenes in a non-pornographic
film (eg certificate "15") with their 15 year-old charge.
There is no obvious exception for sex education or "facts
of life" discussions. Communications are "sexual"
"regardless of any person's purpose" (Clause 111(6)).
48. One does not have to strain to think
of scenarios where the controlling parents of teenagers who begin
to discover their sexuality (gay or straight) pressure the police
into applying for such orders against friends, neighbours and
teachers. Lives may be destroyed even where magistrates eventually
refuse to make an order, or where an order is discharged by the
Crown Court on appeal. By putting adults in fear of talking to
children about delicate matters (or talking to children at all),
this regime may seriously undermine child protection and constitutes
a hysterical legislative distraction from the serious social issue
of tackling sexual abuse in and beyond the home.
Part One of this briefing was drafted by
Henrietta Hill, Barrister Doughty Street Chambers
Part Two of this briefing was drafted by
Shami Chakrabarti, Liberty in House Counsel.
February 2003
83 In the Sex Offences Bill the offence of "Assault
by penetration" (Clause 3) for example is of comparable seriousness. Back
84
See Gillick v West Norfolk and Wisbech Area Health Authority
and the Department of Health and Social Security [1986] 1 AC 112,
at p. 189, where Lord Scarman said that when considering the legal
capacity of a girl under the age of 16 to consent to contraceptive
treatment: "...there is much that has to be understood ...It
is not enough that she should understand the nature of the advice
which is being given: she must also have a sufficient maturity
to understand what is involved. There are moral and family questions,
especially her relationship with her parents; long-term problems
associated with the emotional impact of pregnancy and its termination;
and there are the risks to health of sexual intercourse at her
age, risks which contraception may diminish but cannot eliminate.
It follows that a doctor will have to satisfy himself that she
is able to appraise these factors before he can safely proceed
upon the basis that she has at law capacity to consent to contraceptive
treatment" Back
85
Re T (Adult: Refusal of Treatment) [1992] 2 FLR 458 at
p. 479 where Lord Donaldson MR set out the approach to be adopted
in relation to mentally disordered adults, saying: "Capacity
to decide. The right to decide one's own fate presupposes a capacity
to do so. Every adult is presumed to have that capacity, but it
is a presumption which can be rebutted. This is not a question
of the degree of intelligence or education of the adult concerned.
However, a small minority of the population lack the necessary
mental capacity due to mental illness or retarded development...
This is a permanent or at least a long-term state. Others who
would normally have that capacity may be deprived of it or have
it reduced by reason of temporary factors... Doctors faced with
a refusal of consent have to give very careful and detailed consideration
to the patient's capacity at the time when the decision was made...
the doctors should consider whether at that time he had a capacity
which was commensurate with the gravity of the decision which
he purported to make. The more serious the decision, the greater
the capacity required".
Back
86
Re MB (Caesarean Section) [1996] 2 FLR 426 at p. 433, where
Butler-Sloss LJ reviewed the authorities including in Re C
(Refusal of Medical Treatment) [1994] 1 FLR 31 where at p
36, Thorpe J had formulated a test to be applied in determining
capacity in three stages: first, comprehending and retaining treatment
information, secondly believing it, and, thirdly weighing it in
the balance to arrive at a choice. The Law Commission had proposed
a similar approach in para 2.20 of its consultation paper 231,
"Mental Incapacity" that a person is without capacity
at the material time if he or she is unable by reason of mental
disability to make a decision for himself on the matter in question
either because "(i) he or she is unable to understand or
retain the information relevant to the decision, including information
about the reasonably foreseeable consequences of deciding one
way or another or failing to make the decision; or (ii) he or
she is unable to make a decision based on that information".
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