TUESDAY 8 APRIL 2003

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Members present:

Mr Chris Mullin, in the Chair
Mr David Cameron
Mr James Clappison
Mrs Janet Dean
Mr Gwyn Prosser
Miss Ann Widdecombe
David Winnick

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Memoranda submitted by Criminal Bar Association, Police Federation, Rape Crisis Federation/Campaign to End Rape, British Naturism and JUSTICE.

Examination of Witnesses

MR PETER ROOK QC, Chairman, Criminal Bar Association; MS JAN BERRY, Chairman, Police Federation; MS CATHY HALLORAN, Rape Crisis Federation/Campaign to End Rape; MR MICK AYERS, President, British Naturism; and MS JANET ARKINSTALL, JUSTICE, examined.

Chairman

Good morning, ladies and gentlemen, and welcome. This is the first of two sessions we are doing on the Sexual Offences Bill. The witnesses represent quite a diverse range of interests and therefore our questions will have to be targeted. It is not necessary for all five of you, indeed I am sure you will not want to, to reply to all the points. Could I ask each of the witnesses first of all to identify themselves and the organisation they represent starting with Cathy Halloran.

(Ms Halloran) I represent the Rape Crisis Federation of Wales and England and the Campaign to End Rape. The Rape Crisis Federation represents over 40 groups providing direct support services to female survivors of rape and sexual assault and one aspect of their work is to provide a national voice for service users. The Campaign to End Rape is a coalition of organisations and individuals which has lobbied on law reform and on sexual offences and is conducting a new awareness training campaign in the truth about rape.

How are you funded?

(Ms Halloran) We are a charitable organisation.

(Mr Ayers) I am Mick Ayers and I am Chairman of the Central Council for British Naturism which is the national federation for naturism in Great Britain and I am also a member of the International Naturism Federation based in Antwerp which is the supreme world body for naturism covering some 36 countries; I am a member of their six-person executive committee. My own background is as a former trade union official for UNISON and a district councillor for some 25 years. British Naturism represents naturism within Great Britain: 125 clubs, 20,000 members and also, because of the casual and holiday nature of naturism, recent polls suggest that there are perhaps 2.5 million people practising naturism in Great Britain as a holiday activity or as a way of life.

(Ms Berry) I am Jan Berry and I am the Chairman of the Police Federation representing an increasing number of police officers, 129,000. We obviously have a responsibility for the welfare of those officers but importantly also the provision of an efficient police service.

(Mr Rook) I am Chairman of the Criminal Bar Association of England and Wales. We represent barristers who both prosecute and defend. I am co-author of a legal textbook Rook and Ward on Sexual Offences of which, for reasons which I am sure the Committee will understand, I am currently having to do a third edition. I was leading counsel in the House of Lords case on previous sexual history, R v A.

(Ms Arkinstall) I am the Director of Criminal Justice Policy at JUSTICE, which is a British based all party law reform organisation.

We are going to start with clause 1, honest belief in consent on rape, and I will begin with a question to Mr Rook. Why is the Criminal Bar Association opposed to extending the offence of rape to include penetration of the mouth?

(Mr Rook) Whilst we feel that forced oral sex should be recognised as an extremely serious offence, we feel that it should not come within the definition of rape. We fear that, if it is included within the definition of rape, juries might be less inclined to convict of rape itself. We would submit that the obvious solution is to include it in the new offence, which of course carries a maximum of life, of penetration and I forget the precise words. That would be a natural home for it and that would recognise the serious nature of it.

What are you saying the penalty would be?

(Mr Rook) The penalty for that offence of assault by penetration - I think it is clauses 3 and 4 - would be life. So, you would be achieving the purpose of recognising the seriousness of events without diluting the definition of rape.

So, no practical difference in terms of the potential penalty?

(Mr Rook) No.

(Ms Halloran) I disagree. There is a danger, in separating this off from the most serious offence which is rape, of it being treated in courts as a lesser offence by the court process and therefore being given a lesser penalty. We know that people who experience this form of assault find it as degrading and traumatic and horrific as penetration of the vagina or of the anus and we therefore say that it should not be separated off from the offence of rape.

What do you say to Mr Rook's point that it might make juries less likely to convict?

(Ms Halloran) I doubt that juries would be less likely to convict if there were a direction at the end of a trial by the judge that forced sex included forced penal penetration of the mouth and did forced penal penetration of the mouth occur in this case, then I suspect that juries will convict. This is after all forced sex and juries understand forced sex and it should be in the category of forced sex which is rape.

What do you say to the point that actually it is academic because the penalties available are the same if you include it just under "penetration" in clauses 3 and 4?

(Ms Halloran) There is a danger that it will be considered a less serious offence despite the maximum penalty being available. If it is separated off from the offence of rape, there is a danger that it will be perceived as less serious as the most serious offence. In our view, it should be coupled with rape because it is as degrading, as humiliating and as horrific an experience. It may involve a different mind-set for people but that occurred recently when legislation included in the offence of rape anal penile penetration and, in my view, it will not be difficult for juries to adapt to that mind-set. The law adapts to cultural changes and we have a different perception now of rape in that rape can now be rape of a male and rape of a female, it can be vaginal and it can be anal. In my view, it should become that it can be penile penetration of the mouth and it will be accepted as anal penetration has been accepted.

Mr Rook, do you want to respond to that?

(Mr Rook) I think I have put forward my arguments.

So, it is just a straightforward disagreement, really. Jan Berry, do you have any comments on that?

(Ms Berry) I do not think that I have anything to add. I think the offence needs to be there and that what section it comes under is not a real issue for us. It is the fact that it is there. I think there is a danger that if it is considered to be in a separate section, it would not have the same bearing in a court. So, I tend to agree with Cathy and I think that is an argument we have used in other areas of our evidence particularly regarding children. That is not to say that I think we should underestimate offences committed against children. I think the point being made is that if you make a separation, then it can make a lesser offence of rape against an adult and we would not want to see that. Any offence of rape is a very serious offence, particularly when we are trying to look at the victim, which obviously we deal with firsthand.

(Ms Arkinstall) As a matter of logic, I would prefer that it be in clause 1 simply because that is dealing with penile penetration of an orifice of a person. To put it in clause 3, as a matter of logic, that refers to penetration by something else. So, in terms of clarifying the law, I think that it probably is desirable that it be as it is. In terms of Mr Rook's point about whether it would downgrade the offence in the eyes of the public, I tend to agree but that, with education, in much the same way as in anal rape, it would not be such a problem.

What do you say to Mr Rook's point that a jury might be less likely to convict?

(Ms Arkinstall) I think that with education, with proper directions and with the stress that rape is actually an offence involving penetration of an orifice by the penis, I do not think that that would necessarily be such a great issue. I do not think it is a huge issue and I think that Mr Rook's point about the penalty being the same is important.

So, Mr Rook, not a huge issue?

(Mr Rook) No. In the grand scheme of things, not a huge issue.

Shall we move to honest belief in consent which I think is a bigger issue. Janet Arkinstall, I think JUSTICE is split down the middle on this; is that right?

(Ms Arkinstall) Yes. I am maintaining my position on the fence.

In that case, perhaps you could impartially set it out to our Committee.

(Ms Arkinstall) It is an interesting thing. It is one thing that I embarked upon thinking that it was an incredibly important issue and I still believe it is but, in a sense, in the great scheme of things and in terms of this Bill, it perhaps is not and that was the view that I came to in the end which was quite odd having written a paper about it. Essentially, the position at the moment, as you may be aware, is that where a person has a belief that somebody is consenting to have intercourse with them, they do not have the requisite guilty mind that is required and that can be an unreasonable belief and that is what the case of Morgan found where indeed there was an incredibly unreasonable belief on the part of the accused in that case. That caused controversy at the time and continues to cause controversy because it would seem that it perpetuates myths that some men have that women actually mean to say "yes" when they say "no" to intercourse. What the Bill purports to do is to completely take away the mens rea element of the offence, if you like, so that it can be committed negligently and that happens in clause 3 where the test of a reasonable person - not a reasonable belief but a reasonable person - is applied to the mental state of the accused at the time. That is a very radical step in terms of substantive criminal law because most serious offences, as we know, require that the Crown prove against an individual that they actually had the intention of committing that offence. I was perhaps tasked with the job of finding a middle way, if you like, where the unreasonableness of the belief is gone. There has to be some sort of reasonableness involved but does not perhaps involve the reasonable person test which actually, in various other areas of the law, has caused enormous problems. The obvious question is, which reasonable person are we talking about? Other countries have grappled with this problem as my paper explains and the Canadian system, which was the one which the sexual offences review decided it quite liked, was to maintain the defence in order that it is not completely objectified but limit the circumstances in which it can be used. You would not be able to use the defence if you were involuntarily intoxicated, if you were reckless or did not care less as to consent or in circumstances where the accused had not taken reasonable steps to ascertain whether or not there was consent. That last one is the major change. It sort of puts an onus on the person who is initiating a sexual encounter to take some sort of care. When you think about it, at the moment, if you imagined a situation where it is not a stranger-rape case, it might be a marital-rape case, people who are known to each other, where the jury accept that there was no consent but the accused is saying, "I believe that she was consenting", the most obvious question that any prosecutor is going to ask an accused when they get into a witness box, as they would normally do in that situation because they have an evidential burden to overcome, is, "Why did you think that this person was consenting? Did you ask?" I am sure that is what would happen in the courts today. It may then be that it is not such a radical change to put that in legislation. It would have the benefit of creating a situation in which there can be community education as to what is acceptable and what is not and, with proper directions from the trial judge, it may indeed work. That was one solution. It does go some way to objectifying the test, but perhaps not as far as what is in the Bill does.

Mr Rook, what is the evidence for the proposition that the existing test is not working or is causing problems?

(Mr Rook) I am not sure that I can answer as to what the evidence is. There is a general feeling that it should not be an entirely subjective test. Criminal lawyers are divided on this issue. The Criminal Bar Association however is firmly in favour of changing from the rule in Morgan to not a wholly objective test but what one might call a subjective objective test. It seems to us that, if you had a wholly objective test, then there is a great risk, if you have it judged by some standard external for the defendant, the reasonable man, that, in a case, say, where the defendant has a learning difficulty or is simply very young, if they are judged by some objective reasonable man standard, then there may be a risk of injustice in that sort of case. So, we would contend that the answer is to abolish the rule in Morgan but to have a test where the characteristics of a particular defendant are taken into account when judging reasonableness. There is a precedent for this in respect of the defence of provocation and manslaughter. We support the amendment that was put forward by Lord Thomas of Gresford on 31 March that "sexual violation by rape is where A

penetrates the vagina" etc "without the consent of B and without a reasonably held belief." That, to us, seems a very neat solution because you are looking at reasonableness but in the context of the particular defendant.

Would the change as proposed not result in more convictions?

(Mr Rook) That is a very interesting question. Of course, if one simply had the stark objective test, some juries might find difficulty with it. I would have thought that if it were tempered in the way I have suggested, the short answer is "yes".

Many more convictions or ...?

(Mr Rook) I come from the camp where I believe that vigorous investigation and good interviewing is going to achieve more convictions rather than actually changing the law.

At the back of all this lies the belief that, for whatever reason, the chances of an alleged rapist being found not guilty are much higher than almost any other category of serious offence.

(Mr Rook) That arises for a number of different reasons. As we all know, it tends to be what the Americans call a swearing match, one word against another. It is extremely difficult for the CPS to form a valued judgment and cases go ahead and it may depend on to what extent there is supporting evidence and so on. I am sure it is an area the Committee is familiar with.

Obviously the argument about consent can only be had where the defendant is known to the victim. What proportion of cases involve people who know each other rather than stranger rape where obviously consent is very unlikely indeed?

(Mr Rook) I cannot give you a precise figure. Obviously far more cases are brought nowadays where parties know each other and, yes, that is probably one of the reasons why there is a high acquittal rate because a jury may be less inclined to convict in those cases.

(Ms Halloran) We believe that the objective test in the Bill should stand. We think it should be introduced because it provides a fairer approach and we are taking into account the perspective of the person who has experienced rape as well as the perspective of the defendant. We also think that it is likely to produce more convictions where a conviction is warranted. We think that, on an objective analysis, the honest belief defence probably leads to acquittals where there should have been convictions although we do not have any specific data to show that. It is very difficult to show why juries acquit or convict because there is currently no analysis of that. However, we are not in favour of including in statute specific characteristics of the defendant. We say that the objective test, as it stands in the Bill at the moment, invites the Jury to consider the defendant's reasonably-held belief and all the circumstances in which he found himself holding that belief and it is our view that a jury will be able to take account of particular characteristics of the defendant that are relevant. So, we do not think that it should be incorporated into the statute that certain characteristics of the defendant should be taken into account.

I notice that in the Lords debate on this, Ann Mallalieu said that she did not think in practice it would make much difference; do you think it would?

(Ms Halloran) I am sorry, what would make much difference?

In practice, this change is not likely to make much difference to outcomes.

(Ms Halloran) The objective test?

Yes. Whether you make the change or not?

(Ms Halloran) It is our belief that the honest belief defence probably does lead to acquittals where there should be convictions and that this will make a difference because we believe that juries will be able to consider ... I think what she was saying was simply that, in the case of Morgan itself, where an outrageous, unreasonably-held belief exists, juries will probably convict in any event and this was just entrenching that in the law and I agree in that respect, but there is a danger that where a person is forced against her will to have sexual intercourse with a person who can convince the court that he honestly considered that what happened at the time, whether it was something that she said or did, led him to believe that she was consenting, no matter how unreasonable that is, then there is a danger that juries will acquit in those circumstances.

What Ann Mallalieu said was that if a jury, whatever direction is given, thinks that no reasonable person could have thought that the woman gave consent, they convict because they simply do not believe the man who claims that he thought she did. Do you agree with that, Mr Rook?

(Mr Rook) Entirely.

So, in the end, like the previous matter we were discussing, is it fair to say that this a relatively fine point?

(Mr Rook) No, I do put it in a rather different category. The harshness of the objective test as currently in the Bill does cause us great concern and we feel that it must be tempered by some wording which enables a jury to take into account the defendant's characteristics. We are extremely concerned about that and could I just emphasise the position of a young defendant and a defendant with a learning difficulty. If that is not taken into account, it could result in serious unfairness.

What do you say to Cathy Halloran's point that any sensible jury will take that into account anyway regardless of what the test is?

(Mr Rook) That is a worry because juries should follow directions and directions should be based on the law and if the test is the objective reasonable man, they should not be taking it into account, so I am not sure that that is good enough.

(Ms Halloran) At the moment, in the test of reasonableness in respect of provocation, it is not written into the statute. It is not written into any statute that the characteristics of the defendant should be taken into account. The courts have developed this as an approach and it is my belief that they will develop this as an approach and of course mental deficiencies will be taken into account by a sensible jury directed by a judge.

Mr Clappison

Could I ask Mr Rook if he could say a little more about what he said a few moments ago about what I think he said was a difficulty that he felt some juries would have with the purely objective tests that they might find harsh. Were you saying that that might lead some juries to acquit?

(Mr Rook) Yes.

As it stands in the Bill.

(Mr Rook) I think they might feel that to apply a wholly objective test and not being allowed to take into account the characteristics of a defendant very difficult to take. That is the point. If I could answer the point about how the law might develop, we would argue that it should be tempered rather further than it is in relation to manslaughter and provocation in any event and surely this is Parliament's opportunity, with an Act where you are consolidating sexual offences, to give the appropriate steer.

This is a significant change in the law, as was said in the House of Lords debate. What do you say to the weighty legal opinion which is expressed in the House of Lords by former law lords, Lord Alexander and so forth, saying that this was a change to make rape now a crime of negligence and that somebody with an honest but mistaken belief could be convicted?

(Mr Rook) It does cause us concern. However, I take the view that, in 2003, it is not unreasonable to expect a defendant to take appropriate steps. So, that is why, perhaps surprisingly, the CBA does take the view it does, that the rule in Morgan should be modified.

As matters stand, as I think Baroness Mallalieu said, the question of whether the defendant's belief is reasonable or not is one of the factors which the jury will take into account in deciding whether in fact they had an honest belief.

(Mr Rook) Yes. We like I think it was the proposal in the sex review, the Canadian way where the prosecution could get home on mental element if they could prove that the defendant had not taken reasonable steps or whatever to sustain a position, but it seems that that is out of favour and so now we feel that the most appropriate option is to dilute the harshness of the objective test.

Could I just ask Cathy Halloran on the point particularly about defendants who might be young or have learning difficulties. The test in the Bill as it stands is "a reasonable person". Do you accept that somebody with learning difficulties or who was very young and who fell below the standards of a reasonable person would be in some difficulty? What do you say to the point which has been made by Mr Rook about that?

(Ms Halloran) As I have already indicated, I believe that of course if someone has learning difficulties, that would be one of the circumstances that the jury is made of in the course of a trial and one would hope that that would be taken into account by a sensible jury.

But the test which the jury has to apply is directed by the judge as that of a reasonable person. It does not specify a reasonable person with those characteristics, a reasonable person with learning difficulties or a reasonable young person, it is a reasonable person.

(Ms Halloran) A reasonable person in all these circumstances and I would submit that all the circumstances include all the relevant particulars of the defendant as well as the situation in which he found himself.

We will have to ask the minister about that but it is quite clear that it is a reasonable person and not a reasonable person with those characteristics.

(Ms Halloran) Yes. I would hope that a jury would be able to pose themselves the question or the question would be posed to them, was this defendant's belief reasonably held in all these circumstances?

Chairman: Can we turn now to clauses 77 and 78 which is consent and presumptions against consent.

Mr Cameron

First, I would like to ask Mr Rook if he could explain for the benefit of the Committee the difference between conclusive presumptions and rebuttable presumptions and what he understands the Government are trying to do with this quite complicated clause.

(Mr Rook) I assume that the Government are trying to tie down judges to give particular directions. For myself, I believe that clause 78 mars an otherwise a very good piece of draftsmanship and that clause 78 is a prime example of what I would describe, with respect, as legislative overkill. Obviously, one has a scenario of shifting burdens of proofs depending on when assumptions are made out and I ask rhetorically, "Why?" In fact, if some of the circumstances set out in clause 78(3), under the present law, were established, there would be absence of consent in any event.

As I understand it, what the draft law is saying is, if certain circumstances exist and it is proved you knew they existed as the alleged rapist, then it is assumed that the victim did not consent, and these include that they were asleep.

(Mr Rook) Yes.

And what you are saying, if you are asleep, under the current law, it is assumed that you could not consent, so why change it.

(Mr Rook) Precisely and I would not have any objection to setting out circumstances where, under the current law, there is no consent in the statute. I think that was an earlier proposal and, fine, the complainant was asleep or submissions through fear or whatever.

The circumstances are violence is being used, threat of violence, asleep, otherwise unconscious or there is a physical disability. I want to ask Cathy Halloran, I understand from your submission to the Committee that you would like to add the circumstance that the victim of the rape was under the influence of either drink or drugs; is that right?

(Ms Halloran) Yes. We believe that there is a point in certain situations when, albeit voluntarily, drink or drugs have been taken before unconsciousness when someone is unable or has no capacity to consent. So, we believe that should be included.

If the law were added to in that way and the alleged victim of the rape was able to prove that they were drunk at the time, therefore it would be presumed that they could not consent. What happens in a case where both the alleged rapist and the alleged victim are drunk? Why should the burden of proof be reversed for one but not for the other?

(Ms Halloran) We are looking at a situation where an alleged victim, as you say, has been able to demonstrate that she has reached such a level of drunkenness that she has no capacity to consent. Not that she is merry; we are not suggesting that. We are suggesting that there is a level of intoxication when someone loses the ability to resist or the ability to consent. Presumably, if that is demonstrated by the prosecution to the standard required, there will be strong evidence of her incapacity and therefore we believe that she would not be protected sufficiently without there being a presumption and there is a danger that, with the presumption being excluded, with this situation being excluded from a list of circumstances, that it will be considered therefore as actually less important or not necessarily wrong to have forced intercourse with somebody in those circumstances. There may be a reverse reflection that may cause problems when it is omitted from a list in this way.

The list in clause 78 is exclusive and exhaustive and does not admit of other possibilities.

(Ms Halloran) Yes.

Does Mr Rook not have a point when he says that, when you read clause 78, it is a sort of attempt to lead the jury in a way, is it not? It is saying that, if this happens, you have to assume that they did not consent and, if certain things happen, it must be conclusively presumed that there is no consent. Should we not leave it to the commonsense of the jury to hear the story about the man and the woman and what happened, who was drunk and who was not, and let them try to decide what happened? It is very complicated, is it not?

(Ms Halloran) We see that this is a way of shifting perspectives and we see it as absolutely right that the legislation should reflect the responsibility upon a person to satisfy himself that he has his partner's consent to sexual intercourse and we believe that putting this in the legislation reflects that attitude which should become entrenched in society. The responsibility should be with the person who is seeking sexual intimacies to establish beyond any doubt that he has consent.

I just want to have one more go at the situation where they are both blind drunk. Under the way you would like to draft this, if it can be proved that he knew she was drunk, it is then assumed that she did not consent, but it does not say anything about him being ... Do you see what I mean? It is not fair.

(Ms Halloran) We think it is fair because there are already rules in the law about people's intention and capacity in respect of alcohol consumption and the voluntary consumption of alcohol is never a defence to any other crime, so why should it be a defence to this?

Mr Rook, why does the Criminal Bar Association believe that these presumptions against consent would actually make convictions less likely rather than more likely?

(Mr Rook) Because what is needed in a rape case is a very clear summing-up and clear directions tailor-made for the particular case. Of course, as you will all know, now serious cases are only tried by judges specially trained who have sex tickets and who are trained to give appropriate directions relevant to the case. What you are doing here is putting judges into strait-jackets, if you like, a legislative strait-jacket, where they have to go through these various directions. So, in those circumstances, we feel that actually the importance of a clear summing-up may be lost because of having to go through these assumptions, shifting burdens of proof and so on.

Do you both think that the Government's proposed amendments to clause 78 will help or, to be clear, what would you rather do with clause 78? It sounds as if the Bar Association would like to scrap it and start again with a small list of areas where, if it can be proved that was the case, you just did not consent, but you would like to keep clause 78 and add to it.

(Mr Rook) That is absolutely right, we would be quite content with a list of circumstances where, if proved, then absence of consent is established, but that is as far as it should go. Quite apart from the problems with the complication that this will cause, we also have a fundamental objection which is that, as far as any important component of an offence is concerned, the prosecution should establish that. So, that is our second objection. We do feel that there should not be a shifting burden of proof. Let the evidence speak for itself. If the evidence shows that a defendant is holding a complainant through fear, the evidence will speak for itself.

(Ms Halloran) We would prefer to see, rather than a definitive list of circumstances where absence of consent is presumed, a list of examples which permits the law to continue to develop and permits some sort of flexibility, but we do agree that there should be a list of circumstances, presumptive circumstances, and it is our view, as I have already stated, that this will reflect what we see are modern attitudes about the responsibility of a person seeking sexual intimacy. So, yes, I think it is important that there should be a list.

So, even though you do not mind the complications of it, you would keep it pretty much as it is but add some things; is that right?

(Ms Halloran) If it is going to be a definitive list, we would want to add the voluntary intoxication to a certain level, but we would far prefer that this was not a definitive list but a list of examples where consent is presumed to be absent.

Do you think there is a concern about miscarriages of justice if this goes through as it is? Can you try to bring it to life for us. If you do think that, what examples can you give us from your defending or prosecuting experience where this could come unstuck?

(Mr Rook) It is so difficult. It is the old thing: trying to predict factual situations is virtually impossible and, when a legislator literally wades in and tries to say, "This is relevant and this is not" and it is done on often an arbitrary basis, it leads to problems. I am not sure that I am able to able to bring to life a particular example; it is just a general concern from having talked to judges and members of the criminal bar that the evidence is not going to be presented in such a clear way to the jury and that judges' hands are going to be tied.

(Ms Berry) I think that we sometimes lose sight of why this list has appeared in here and that is because of the abundance of case law that there is in respect of these types of cases and I think that the law does have to set some directions sometimes with regard to standards and I do not think that the list should be exhaustive. Certainly from our perspective, trying to apply this practically, it becomes a legal nightmare in court as opposed to putting the victim at the centre of this and considering the victim's perspective. I think that sometimes we get that balance out of order. I see this as an attempt to put the victim at the centre, to have a search for truth in the court and all the facts will, I am sure, come to bear, but I think there needs to be some general guidance, which is how I see clause 78.

David Winnick

Ms Halloran, would you accept that, in a number of cases, juries do have a very difficult job, where it is by no means quite clear who is telling the truth in deciding whether indeed sexual consent had actually taken place or not?

(Ms Halloran) I accept that it is very difficult in a situation where, more often than not, the act occurs in private and it is usually one person's word against another. Yes, I accept that juries may have difficulties in deciding who is telling the truth, of course, but, at the time, they have the opportunity to assess a person's demeanour as well as listening to what a person says and I think that, as Jan Berry has just said, this puts the victim firmly in the centre where, in my view, the victim should be and gives a more victim-based perspective for the jury to consider because it is a very traumatic experience to go through a trial in itself. Often, the victims say that they feel re-victimised when they go through a trial. We should attempt to lessen that in any way that we can because the rate of reporting is so appallingly low that people who have experienced rape prefer not to take this to court because of the experience they are likely to have there.

I understand that and rape itself is a monstrous crime and I do not know about my colleagues but I am certainly in favour of strengthening the law. If I can put this to you bluntly, what do you say to the argument where women in some instances - and I do emphasise in some instances - have agreed to sexual intimacy/sexual intercourse and then, for all kinds of reasons, perhaps taking a view that they are ashamed of what they have done, make up a story which brings the man into the dock? Do you accept that that can happen and has happened?

(Ms Halloran) I accept that it can happen and that it probably has happened, but what I would say to that is that a mythology has built up around this, that this is the situation, that this is the norm, and that is not the case and there is very little evidence to show that this happens and that false accusations are made in the instances of rape any more frequently than they are made in other crimes, but a mythology surrounds rape and there is a belief by certain populations that that happens more frequently than it really does in reality and there is no evidence to suggest that it does happen as frequently as some people think it does.

Presumably your organisation is very much opposed to the way in which defence counsel do try and undermine the person bringing the charge, the alleged victim of rape, by her personal history, how she may have dressed and all the rest of it.

(Ms Halloran) Of course we are, yes, very much so.

Is that less now in court than it used to be?

(Ms Halloran) Since 1991, there are now limitations on the cross-examination of the complainant about her previous sexual history. You cannot cross-examine to show that she consented. However, where there is a defence of belief in consent, then that opens the door of course to cross-examination about previous sexual history. So, in a case where a defence of honest belief in consent is run, then the complainant can be cross-examined about her previous sexual history.

Do you think that is fair, Mr Rook? I recognise that counsel is defending a person and will do his or her best, as one would expect, but do you think the point that has just been made about the sexual history is fair?

(Mr Rook) Yes. I have no problem with the fact that, as defence counsel, you have to apply for leave if you wish to ask questions about previous sexual history and we now have a regime controlling that. I am very pleased that you asked me the question because I was rather sensitive about the suggestion that defence counsel are in any way hectoring or being unfair to complainants. I do not believe that that happens. It is counterproductive if defence counsel take that view and, in any event, they are seriously controlled by the previous sexual history legislation. Of course, previous sexual history may be relevant in certain limited circumstances but counsel has to apply to the judge and it is only if it is in those limited circumstances that the judge will allow leave.

Chairman: Can we now turn to clause 70 which deals with exposure.

Mr Prosser

My Ayers, your membership has raised its concerns about the effects of clause 70 on the activities of your members. The Government have said that it is not intended to have such an effect. Can you tell us your concerns.

(Mr Ayers) Our concerns are really that whilst the Government may make that statement, prosecutions are taken often by police or local authorities and the courts make judgments very often based on a mistaken belief that nudity equals sex. We would argue that is very much not the case. Clause 70 talks in terms of a person exposing the genitals. As I said in my statement, elsewhere within the Bill, there are references to that being for a sexual gratification. It is in fact omitted from this particular section of the Act. Again, as you will see from the statement, there are nine official beaches but at least 400 other places, if we talk beaches alone, where naturism has established use for many, many years, mainly because local authorities have not wanted to tackle the problem and have merely turned a blind eye to enforcing the regulations and allowed it to continue. In those circumstances, if a genuine naturist goes to an established naturist beach but an unofficial one, then they do intentionally expose their genitals because it is their way of life, not for any sexual purpose but merely because it is their way of life, they do know that other people will see them and there is always a tentative argument that, if it is an unofficial location and therefore there may be people on there who did not realise that it was naturist, they could be argued to be reckless. Our view therefore is that if in fact the clause was amended to say that this was exposure for sexual gratification, it would give clear a purpose to that and the other test of course which is not there is whether the person seeing them is a reasonable person. Our experience is that sometimes those people go there deliberately to complain in the full knowledge that it is a naturist beach and in the full knowledge that they, for some purpose, religious or political, do not believe that it should be allowed to continue and make a complaint. Indeed, we have experience on occasions where a policewoman has been called to attend the beach by a policeman in order to make that justification for complaint, that she is therefore seeing a male exposing himself on the beach. We therefore believe that if some amendments were made to this clause, it would in fact clearly show to the courts and to the general public that naturism is not the intended target. We prefer to avoid being caught in the friendly fire, as it were, because we totally agree with the purpose of the Act.

You have talked about the regulated areas which are designated for those purposes and then a wider area which has become used almost by custom and practice.

(Mr Ayers) Yes.

To what extent are your concerns limited to those true areas, although they are a little different I accept, rather than to totally undesignated areas, general beaches and the countryside for instance?

(Mr Ayers) Naturists act within a code of practice which basically is respect for yourself, respect for others and respect for the environment and clearly, in this area, we think respect for others is to be taken into account. We do not accept that naturists should act in a reckless manner, that they should demand to be nude wherever they wish and that they do respect others' views, that sometimes there are people who do not wish to be confronted by naked people and that they should have every right to avoid that. In terms of the way in which the legislation is applied, the problem has been that things have not been designated. Where, for example, there is an official beach, it is usually designated by signs, usually more than one, which warns people that they are approaching a naturist area and then gives them a second warning beyond that that they are in a naturist area. We think that very much helps people because they clearly either enter that area in full knowledge or they do not. The problem still relates to the unofficial areas, beaches, national parks and national parks and riverside areas which have established use and that is where the difficulty can occur in that people can often sometimes wander into those by mistake and could be concerned and upset. We would prefer to see more recognition of those areas by the local authorities concerned and indeed signposting of those because we believe that it would give greater safety to naturists and it would also give greater powers to the authorities and particularly the police to be identifying people who are acting unreasonably because, if they are clearly identified outside of those areas when there is one in very close vicinity, then it would be considered that they must be acting unreasonably.

You have said that you would like to see the phrase "with sexual intent" or words to that effect included in the Bill to define an offence.

(Mr Ayers) Yes.

Is that the only core element you would like to see in order to differentiate between the activities of naturism and offensive behaviour?

(Mr Ayers) I would really like to see naturism much more recognised but, in the terms of this particular Bill which relates obviously to sexual offences, initially within setting the boundaries, there was some clear guidance stating that the Bill was not intended to prevent naturists undertaking their normal way of life. We certainly welcome that. Our concerns are that that kind of phraseology has not been repeated within the Bill and whilst of course obviously it is a Bill to be used in terms of prosecutions etc, we are suggesting therefore some ways in which this could be perhaps amended suitably to continue to take account of the people who do intentionally expose themselves for sexual gratification. We do not condone that in any way whatsoever. We believe that they cause as much problems to our organisation as they do to anybody else. We do feel that there is a need to differentiate between basically exposure of the person which, in our way of life, is a normal way of life - we consider it a very moral and proper way of life and a family activity - and those who do such activities for sexual gratification and generally the circumstances of how they do that can be very often clearly defined. A person laying on a beach amongst 50/60 other people all of whom are naked is clearly demonstrating that they are sunbathing naked. If they are hiding behind a tree on a lonely country path, their purposes are obviously different. It is to avoid the problems in those unregulated areas because certainly out of season, for example, or perhaps in less clement weather, whilst in good weather there may be 400 or 500 people using such a beach, in the poorer weather, there may be only a handful and therefore they are much more exposed to difficulties of people complaining.

Mr Rook, may I ask you for advice on how we might differentiate between legal exposure and, shall I say, illegal exposure.

(Mr Rook) It is clearly a problem and I am sure that the clause is not designed to curtail naturism. I certainly have some sympathy with what I have just heard. It might be possible to tighten the clauses. I notice that clause 71(c) refers to a defendant knowing or intending that or is reckless as to whether a person who sees them will be caused alarm and distress, and it is the other way round this time and I suggest that that ought to be a reasonable person.

Mr Cameron

This is actually clause 70 and not clause 71.

(Mr Rook) Yes, that is my mistake. I see some force in the clause referring to some form of sexual gratification. I think that is all I would wish to add.

I want to be clear whether the solution is to get rid of the "reckless as to whether" because I think what Mr Ayers is saying is that naturists can sometimes be naked in a relatively obscure place, but they are not intending to be seen by anybody but, if they are, it could be judged that they were being reckless. So, if you took out the "reckless as to whether" and, as Mr Rook said, you put in "a reasonable person" clause to say that a reasonable person would assume that they did not know or intend, then you solve a problem. Is that what you are saying?

(Mr Ayers) In effect, yes. To be reckless, in our view, one has to intentionally be reckless. They have to take an action which is clearly intended. They have considered the situation and they have taken an action which is opposed to that and they are in difficulties. We would say that it would be difficult to envisage a naturist taking that action. It is to make a reasonable test of whether the person should be alarmed or distressed, in view of the circumstances of the area in which they actually are. If the person is on an established naturist beach, it should be an acceptable defence that a reasonable person would have expected to see naked people on a naturist beach.

Mr Prosser

Would you be satisfied if clause 70 was amended to exclude naturists? If so, how would you define that?

(Mr Ayers) It becomes a much more difficult means of wording something legally to exclude a particular group in terms of naturists. We tend to believe that perhaps bringing in "sexual gratification" is perhaps the better way of identifying what the concern is. If persons are exposing themselves for sexual gratification, their intent is generally obvious - particularly if they are a male person, then it is very obvious in most cases. I understand that Baroness Noakes has tabled an amendment to include sexual gratification - the "exposure is sexual" I believe is her particular wording. That has not yet been taken; it may be taken in the House of Lords later. But we believe the way forward is to bring in that sexual element, because that is the tenor of the rest of the regulations, that the acts are for sexual purposes, and clearly naturism is not a sexual purpose.

What would you say to the criticism that perhaps a tiny proportion of people might sign up to naturism for motives other than the very healthy and proper motives that your members have in general.

(Mr Ayers) I would say that they would be very quickly identified because naturism is very much a family activity and it is a social activity. There may well be people who would join it with a certain view. Our experience is that if we do have such people they very quickly find out that it does not offer them what they feel it should offer them and they very quickly leave. All naturists actually carry a naturist passport. All members of our organisation have a card showing name, address and a photograph which we actually produce and print ourselves. Anybody carrying a naturist card with a photograph stuck on, for example, is clearly not carrying a genuine card. We have the right to remove that card from them and that therefore prevents them obtaining another one. It therefore bans them in fact from the possibility of entering any nature establishment to swim. It can be checked on official beaches, so there is a sanction against people who perhaps move too far within naturism. But our general experience is that if people believe naturism offers them something of a sexual activity or something of a contact activity, they are very soon disillusioned by that and in most cases they leave of their own accord.

They must be very disappointed.

(Mr Ayers) They are extremely disappointed, I think. But that is not what we are there for. If they wish for a sexual activity or a sexual club then our view is they should join that and not naturism.

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 that could be extremely difficult with whatever evidence. With families moving around inside their own homes or lodgers moving around inside a home, I think to prove recklessness in that could be extremely difficult. Our preference, if that is to stay, is that there should be some intention rather than the word "reckless". If we take all the different interpretations that reckless has had within the criminal law, we think that is probably too wide, particularly within a private dwelling.

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 and very often the penalty provides the link to a power of arrest. At the moment, if you have people who are 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 in order 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.

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

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

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.

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.

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.

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.

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 most 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 stand, will actually make that lawful. It will stop people going there. I think, in some respects, if people go there without knowing the reputation of the toilets, it puts them in some difficulties as well - and that 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.

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.

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 just 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.

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

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.

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.

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.

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

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.

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 also cover it if it was in car parks.

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

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) It is very dodgy ground this! At the moment there is no offence of having sexual intercourse in a public place.

Mr Clappison

Or this sort of sexual activity. This is heavy petting.

(Ms Berry) There is no such offence. But there is an offence with regard to public decency. It is not something we would necessarily go out to try to prevent; it is something we would respond to if there were complaints of a particular area always being used, which then, as I think you have referred to, could become a no-go area.

David Winnick

And the police have not been overwhelmed with complaints about sexual activity in cars, I would imagine.

(Ms Berry) No.

David Winnick: No. I did not think so. Thank you.

Chairman: Right, shall we move on to clause 17 which is about sexual grooming.

Mrs Dean

Could I ask you, Mr Rook, first of all, why you describe this as a "thought crime" and what safeguards you would like incorporated into the Bill.

(Mr Rook) We realise that there is clearly a problem with the Net. The problem is that, although the prosecution have to prove an intent in respect of the meeting or intended meeting, they do not so far as the two earlier occasions are concerned, so the two earlier occasions could be entirely innocent. It is for that reason that we feel there should be an amendment, so that there is the appropriate intention on both occasions, or, as it stands at the present, on the previous two occasions.

Otherwise you see a danger, in that they will be criminalised, because the previous occasions have not been sexual.

(Mr Rook) Indeed.

Could I turn to Jan Berry. Do you think that the offence will be difficult to prove in practice and, if so, how would you improve the clause?

(Ms Berry) We agree that there should be an offence and support the creation of an offence, but I do not underestimate the difficulties in drafting this particular section and I am not absolutely convinced it is right at the moment. I take your point that there could be two quite innocent meetings. That said, if you start writing this in very, very definitely, you could therefore have, say, two non-sexual related meetings and then everything else after that is fine. That is how very difficult this clause is going to be. I understand that there are moves to stop the word "grooming" because of the implications that has, but that to a certain extent is semantics. I do not think we have the right words at this moment in time but I do think that we need to take very careful consideration of trying to prevent an offence like this occurring rather than waiting for somebody to be harmed. I think you also have to look at what happens when they go outside the United Kingdom. With the Worldwide Net there is a huge scope there - particularly for young people who go on school trips. Things like this would be covered within some of this legislation. So, whilst you have no wish to prevent young people from what would be normal in their teens, at the same time you want to be able to protect them from this type of offence. We have suggested - and I am not saying this is an answer to your question with regard to the terminology used - that there should be some form of requirement on the internet services, where these are being used for grooming young children, for them to police their own systems and they need to be able to demonstrate that they are doing that. Also I feel that there is an onus on the responsibility of credit card companies. Where, again, credit cards are being used for particular purposes, I think they should have a policing role within that as well because policing this is going to be difficult. But I do not think we should underestimate the value it will have if we can police it more effectively.

Are you in favour of the Government's proposed amendment of increasing the penalty to seven years?

(Ms Berry) I am not actually well cited on that but I would have no objection to it being increased to seven years.

Mr Rook, do you agree with that as well?

(Mr Rook) I do not have a problem with seven years.

You mentioned younger people, Ms Berry. If we can turn to clause 14, Child Sex Offences Committee by Children or Young Persons, is there a danger that clause 14 will criminalise consensual sexual activity between young people?

(Ms Berry) Did you say clause 14?

Chairman: Yes. It "... makes it an offence for a person under 18 to do anything that would be an offence under any of clauses 9 to 13 if he were aged 18 or over ..."

Mrs Dean

This provides for a lesser offence for those under 18, as I understand it.

(Ms Berry) There is a difficulty with some of the age restrictions within the Bill because I think some of them are not consistent. There are exceptions but I think there are inconsistencies. We are concerned that there are different tests being applied, I think, throughout some of this. If you take part 1 of the Bill, there are two different tests applied. "If A does not reasonably believe that B is 16/18 or over" is applied under the heads Child Sex Offences (clauses 9-13 and 17) and also Prostitution and Child Pornography (clauses 54 and 5, 57 and 59). We just think that the first of these tests, if they do not reasonably believe they are 16, is too subjective and is open-ended. I think that is where some of the inconsistency is. We would prefer to see the test where a reasonable person would believe that they are that age and that they have acted reasonably in all the circumstances - which I think goes back to some discussions we had earlier on. I think that is what we would prefer to see. There are always going to be difficulties when you look at ages. I think we are reasonably content that 13 is an appropriate age for the more aggravated offence (if that is the right way of terming it). It is lawful to get married in this country at 16 with permission; therefore, sexual intercourse at the age of 16 would naturally follow. However, there are inconsistencies within this piece of legislation, which provides for that but does not provide for similar provisions with regard to driving and other things. It sets the lawful age at 16 for some things but not for others. The other inconsistency that it puts for an age is with regard to this: If a person was able quite lawfully to be married abroad and they come to this country, it would enable them not to commit an offence in this country, which we would think is pretty inconsistent with what would happen to people in this country if they went abroad. So there are inconsistencies with that which we believe should be looked at further. Whilst I do not think you would ever remove all of the inconsistencies, there should be a logic to them somewhere.

Mr Rook, do you want to add anything?

(Mr Rook) Predictably, I do not agree with the point made in respect of clause 12(1)(d). The current test in the Bill: "A does not reasonably believe that B is 16 ... or over" seems to us a proper safeguard as criminal liability for a serious offence. As far as the child provisions generally are concerned, we accept you have to have an offence along the lines of clause 14. There will be many cases, particularly where it is consensual, there is not much of an age difference, it is only criminal by virtue of the age of the complainant, where one hopes there will be enlightened prosecution policy and there will be other better ways of disposing with cases, but we accept that you probably have to have a clause like that to deal with those cases where there should be prosecutions.

Would it be more appropriate to deal with a child's abusive sexual behaviour through treatment rather than the criminal justice system?

(Mr Rook) Often - and it is a matter of degree. I think we are all familiar with cases where frankly the conduct is so serious that the courts will have to intervene. But it is to be avoided.

(Ms Berry) I would agree with that. I think practice is that the cases that go to court are the ones which need to go to court. There is a variety of other methods of disposal, and treatment would seem to be one of those. There is a further issue we have highlighted, which is that with some of the offences contained within this there is a conflict with some of the behaviour and objectives of health workers. There is an objective to reduce teenage pregnancies. That involves there being sex lessons/family-planning provisions for under-age people. I think what is proposed here would criminalise some of the health professionals who are undertaking family-planning services for under-16 year olds, and so the law would need to clarify how it stands on that before this particular piece of legislation goes through.

Mrs Dean: Thank you very much, Chairman.

Chairman: Turning now to the Risk of Sexual Harm Orders (clauses 110-116). They enable the police to apply to magistrates' courts for a preventative order in respect of a person over the age of 18 who has on at least two occasions engaged in sexually explicit conduct or communication with a child and there is reasonable cause to believe that the order is necessary in order to protect the child. Miss Widdecombe.

Miss Widdecombe

May I perhaps start with Jan Berry and ask: Given that the Bill already provides for Sexual Offences Prevention Orders is there also a need for Risk of Sexual Harm Order or is that legislative overkill?

(Ms Berry) There must be some occasions where this would be an extremely useful order but I think there are probably other avenues which can be taken to produce exactly the same thing. So I tend to say it may well be classed as overkill. I can think of a few occasions when that might be useful, but, when you start looking at human rights legislation and the like for people not having any prosecution and conviction, to have an order of this nature I think would probably be against human rights legislation.

You say that it could be useful in particular instances but other avenues could be taken. Could you just give us an example.

(Ms Berry) I could class as an example, taking the point we were talking about earlier on, where you do not necessarily think, because of the individual, that a court case is the right way forward and that a treatment order would be the appropriate way. Particularly for a person who has educational difficulties or something like that, I can see that an order may provide us with some ability to protect others and at the same time protect that individual as well.

Could I perhaps ask Janet Arkinstall: the grounds for making such an order appear to be quite widely drawn at the moment but obviously the consequences for any defendant are pretty serious. Do you have a view on that?

(Ms Arkinstall) Yes, absolutely. I think it is very dangerous to allow a situation where it might be useful in the rare cases that Jane has described - to allow a plethora of orders to come onto the scene in terms of acts which are not actually prosecuted against, if you see what I mean. It is on, I presume, some sort of reasonable suspicion. It might be appropriate that prosecution is not the way to go but, to bring in an order where it is based on the suspicion of a police officer and then an application to a magistrate, it seems that the end product, this order, may indeed be disproportionate to the harm. Presumably in a situation like that, either there is such concern that perhaps a prosecution is the appropriate course or, if that is not appropriate, perhaps a caution, which would then of course allow one of the other orders that already exist in other sections to which the prevention orders refer. I think there is a danger that it is too much of a catch-all, that the activity is too broad.

Mr Rook, you look as if you are agreeing with that.

(Mr Rook) You are absolutely right. We do feel it is legislative overkill. You have clause 103. This would have very serious consequences for the individual concerned. It is rather loosely drafted. If one looks at clause 110(1)(b): "As a result of those acts there is reasonable cause to believe it is necessary for such an order to be made." If it does go ahead, we suggest that should be rather tighter as to what exactly must be established.

Could we go on to something now which I certainly take very seriously, and perhaps I could begin with Peter Rook. This is the situation where you have anonymity for a complainant but no anonymity for the defendant in rape cases. I think you are in favour of restoring anonymity. Could you explain why?

(Mr Rook) We are. We believe there should be parity. Perhaps the starting point is the serious consequences for a defendant who perhaps is arrested with a blaze of publicity and then the police do not pursue the case. We all know that has been happening recently and one can imagine the damage it has done to that particular individual. All we are asking for is parity. Upon conviction, obviously the name will be publicised. Of course it was the law at one stage, I think just for a few years, that there was anonymity of sex case defendants.

Chairman

For 12 years, I think, between about 1976 and 1988.

(Mr Rook) Yes. As I understand it, one of the arguments is that the police feel that, say, a defendant goes on the run then clearly there is a public interest in that being publicised because it may assist in catching the individual. The answer to that, surely, is to have a clause which would enable the prosecution, the police, to apply to maybe a circuit judge and, if good cause is shown, then the normal rule can be waived. The other argument I have heard, if I can describe it in this way, is: "He did it to me too." It is that argument that because they hear that some high profile person has been arrested, someone else will then come forward. It seems to me that is not a justification, and, indeed, it is rather unsafe.

Does that not also work in the reverse? The complainant is anonymous. If the complainant has actually cried rape before unjustly, nevertheless nobody is going to know that because the name is not published.

(Mr Rook) Exactly the same.

Cathy Halloran, I think you will probably disagree.

(Ms Halloran) Yes, I do disagree. One of the reasons I think that alleged rapists should be named is the last comment made by Peter Rook. The example I would give is of the disc-jockey rapist. I think his name was Baker. He and many others were successfully convicted of multiple rapes, serial rapes, as a result and sent to life imprisonment, where otherwise he might, for one single rape, simply have got two or three years. As a result of his name being publicised, many women did feel the courage to come forward and say they had been raped. I disagree and I do not think there should be an exception in the case of rape as regards the anonymity of the defendant.

How do you answer the point I put, which is you are giving anonymity to the woman who may also have a history?

(Ms Halloran) If we go down the road of the complainant losing her anonymity, then we are likely to see less and less rapes reported. That is the serious danger. The British Crime Survey indicates that now 20 per cent (which is one in five) report. It is usually a stranger rape which is more often reported: I think that is 36 per cent. Date rape is much less likely: 8 per cent. In my view, and the view of the Rape Crisis Federation who have dealt with women who have experienced rape, if they lost their anonymity then there would be far less rapes reported. I think that would be a double-edged sword.

You feel no unease about an unequal frame for this.

(Ms Halloran) No, I do not.

Jan Berry, do you have a view?

(Ms Berry) I have no difficulty in retaining the anonymity for victims, but I would have a difficulty in extending it to offenders. I think at the moment it is another example of how we are seeking to put victims at the centre of the criminal justice system and it actually encouraged them to come forward. I do not necessarily think it is out of kilter where a person's anonymity, if they are a complainant, is maintained.

Janet Arkinstall?

(Ms Arkinstall) I agree that we should maintain anonymity for victims. It is incredibly important that that remains so that people are encouraged to come forward when they allege they have been raped. In relation to defendants, however, I think it does create an unlevel playing field. I agree with your point that there is a danger that people may not recognise people that have perhaps made false reports in the past, although that is probably not so much a problem, but, when you take into account the level of public disquiet there is now about sex offenders, not just in terms of rape but in terms of child sexual abuse, and the social stigma and utter destruction that can happen to somebody's life as a result of an allegation which may, indeed, turn out to be a false allegation, I think there is actually a very good case for saying there should be anonymity. Of course I also accept Mr Rooks' point that if there is good cause - for example it is suspected there are other victims of the person - by all means in that case apply to the court to overturn it.

So the norm, in other words, you would say should be anonymity.

(Ms Arkinstall) Yes, the default position -----

And apply against that course.

(Ms Arkinstall) Absolutely.

Mr Clappison

Could I ask, Cathy - and I agree with the point you make about anonymity for victims, which I think it is terribly important - your reasons for being opposed to granting anonymity to defendants. I am not that familiar with the example which you quoted. It was a disc jockey you referred to.

(Ms Halloran) Yes, that is right.

Was it the case in that case that other women came forward and he was tried for a number of rapes together or they came forward subsequently, after he had been convicted of one rape.

(Ms Halloran) My understanding is that other women came forward -----

As soon as he was mentioned in connection with one case.

(Ms Halloran) Yes.

Because, in a case like that, if he had been convicted of the first rape and his name had then been publicised, there would be nothing to stop the women coming forward at that stage and him being put on trial again for a number of rapes and possibly receiving a much more serious sentence.

(Ms Halloran) No, that is right.

Inevitably receiving a much more serious sentence. Is that your only reason for opposing anonymity of defendants. Because you would accept it is going to cause massive problems to somebody's reputation who is found to be innocent of rape. He is going to have a massive problem with his reputation, even though he has been found not guilty.

(Ms Halloran) I would say that those who have been accused of rape should not have anonymity. There should be no exceptions. It is not the worst crime that people are accused of. People accused of murder do not get anonymity. It would be my argument that there should be no exception simply because the crime is rape. And, yes, it does attract other women who have been raped by a serial rapist, and that is very important.

Chairman

Mr Rook, did you want to come back on that?

(Mr Rook) I think I am only going to be echoing earlier sentiments. I want to make it quite clear that we are totally in favour of retaining anonymity of complainants. What we are asking for is parity.

Could I just put another possibility to you: anonymity for the defendant between the moment of arrest and charge. A senior police officer wrote to me the other day saying that the tabloid press seem increasingly unable to distinguish between someone just picked up for an interview who is liable to be released after a few hours and someone who is charged. What do you think about that?

(Mr Rook) I would be very concerned that there should be any loophole that might lead to an abuse and flouting the intention of the anonymity provision if it were brought in.

Yes, but, assuming it is not brought in and one went for this lesser option, as it were, and at least said you cannot be named until you have been charged. At the moment, am I right in thinking, you can be named from the moment you are taken out of pantomime where you may be appearing.

(Mr Rook) Yes. Of course I would be in favour of the lesser option compared to nothing.

That is a realistic possibility, is it?

(Mr Rook) It helps, but, frankly, it does not deal with the major problem. How many cases are charged and there is not a successful prosecution? An enormous number. So it would not really be catering for the major part of the problem.

(Ms Berry) I am not quite sure I follow the last part of that because one of the reasons for the legislation change is to try to increase the number of successful prosecutions. I think some of the clarification in the law will assist with that. I still am not convinced that a person who is suspected of committing a serious sexual offence should be treated in any other way to the way in which a person who is convicted of a serious assault, a murder or anything else is treated. I understand there will always be people who will think there is no smoke without fire, but I just do not see the reason why they should be treated differently.

I think it arose, as far as this Committee is concerned, in relation to allegations of historic child abuse, where you were dealing with alleged offences that may have taken place 30, 40, 50 years ago, where you had the word of only one witness against another or perhaps two or three witnesses against another, where no records existed, where no forensic evidence existed, and, in some cases, where the physical buildings in which the offences are alleged to have occurred no longer existed. There was an extremely large number of these cases which collapsed long before they reached the doors of the court and lives were being ruined in the process. Because child abuse actually is an offence which carries a greater stigma than almost anything else. What do you say about that?

(Ms Berry) With regard to anonymity?

Yes. Somebody says - and it is sometimes a crowd of people who are in prison together - that they were allegedly abused by someone who worked in a care home they all attended 30 years previously. That is a thinner argument than the one we were just having, about if you are charged with a rape that took place more or less contemporaneously, is it not?

(Ms Berry) Yes, I would grant you that. I am not quite sure how you could write the differences there into legislation. But I would grant you that there are some extremely complex and complicated investigations before they get anywhere near CPS, let alone the court, and a lot of that is being rehearsed in public, through the media, before the full investigation has been completed, and I am not sure that does justice any long-term good.

Let me take some more soundings. Cathy Halloran.

(Ms Halloran) Your point, I think we could possibly agree with that, that a defendant or an accused has some sort of anonymity (that is, it is not splashed around in the press) until perhaps there is sufficient evidence to charge him. That would probably be a compromise, a reasonable compromise that we could accept.

Miss Widdecombe

I am still trying to get an answer to the very simple question of the actual demerit that there is of granting anonymity to defendants. One argument that has been put is that you do not grant anonymity to defendants in any other case. No, but you do not grant anonymity to their accusers either. I am trying to work towards a level playing field. What is the demerit, the risk, the disagreeable factor of not naming a defendant until proved guilty?

(Ms Berry) I think some of the cases which Cathy has already spoken about -----

To which Mr Clappison has put a solution.

(Ms Berry) I think the point with regard to other people then coming forward ----

Mr Clappison produced a solution to that, that if the man was proved guilty other people then could come forward.

(Ms Berry) He would be charged further along down the line.

Mr Cameron: If he is proved innocent -----

Miss Widdecombe: If he is proved innocent, he is not named.

Mr Cameron: -- other people might not be able to come forward because they have never heard about it.

Miss Widdecombe

The issue was somebody who was convicted of multiple rape, as opposed to one rape. But if he was convicted of one rape, he would be named, and then others might come forward. I want the single demerit.

(Ms Berry) Yes, I understand what you are saying, Miss Widdecombe. It is not something that we feel that strongly about with regard to anonymity. Our general feeling is that there should be a link with how it is dealt with in other ways. We have to police both the release of people's details and the offence itself. I would be the first one to admit that on occasions the fact that somebody has been arrested for an offence - which I think is the point Mr Mullin is making - whether or not they are then charged with the offence does cause a policeman difficulty because you have to police the "there's no smoke without fire" syndrome, which is as damaging. So I understand that. Clearly there has to be anonymity for victims - I am totally supportive of that - but I do not think police officers feel that strongly that there should not be anonymity for the people who are accused of the offence.

David Winnick

How do their names get into the press? The police officially say, "A man is helping ..." In fact for certain names, certainly if they are prominent in certain fields such as entertainment, is that not the case because, unfortunately, one or two police officers decide for commercial reasons to give the names of those who have been apprehended for questioning to the press?

(Ms Berry) I have no evidence of police officers providing the people who have been arrested. People who have been charged with an offence and therefore will be going before a court, that information would be in the public domain.

Yes, but that is not what I am asking.

(Ms Berry) No, I know it is not what you are asking. I have heard other people sit in a similar place to this and say that police officers have made a commercial benefit out of releasing information that people have been arrested.

A prominent journalist said that in fact does happen.

(Ms Berry) So I understand. My understanding of that is that it would be, again, a disciplinary offence of the police service.

But it does happen. Come on, Ms Berry, you are not denying it does happen. I am not suggesting for one moment you condone it but you are not suggesting it simply does not happen.

(Ms Berry) I am not personally aware of an officer who has done that.

I will accept that as your answer.

(Ms Berry) Likewise, I am not personally aware of any disciplinary cases being taken. It is clearly a disciplinary offence to be done, but there is a whole variety of ways in which people's names get released. But I do accept your point.

David Winnick: I will accept that as your answer.

Chairman: On that note, may we conclude, please, ladies and gentlemen. Could I thank you very much for coming. Thank you for the help you have given us in understanding this complex area.