| Sexual Offences Bill [Lords]
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Paul Goggins: We may have made a bit of a breakthrough. The hon. Gentleman may like to reflect that in such a case it would not be necessary to prove that the offender's motive was sexual. The jury could decide that the nature of the act—the penetration of the anus or the vagina—was in itself sufficient to enable it to conclude that the act was sexual. It would be the judgment of the jury on the nature of the act, rather than the intention of the offender, that would determine whether the act was sexual. Mr. Grieve: I am grateful to the Minister, and take his point. We will have a good opportunity to Column Number: 107 reconsider the issue when we reach clause 79, especially once we have looked at the Government amendments to it. I was rather concerned by the clause, but I accept that that was principally on looking at the old clause 79, and not at the Government amendments to it.In my experience, juries are very good at answering questions, as long as they are not convoluted and bizarre. The only representations that judges have made to me about the Bill have been on occasions when they have taken me to one side at drinks parties and said, ''Have your read this thing? I am not sure how I will ever explain this to a jury in summing up.'' Of course, judges are conservative with a small ''c'', and if they are used to a particular summing up patter, they can probably get used to a new one. It struck me that the ''sexual'' element in clause 79 could, when explained to a jury, easily leave them puzzled. I think that, whatever the Minister may have intended, juries would interpret it as ''a sexual motive'', because if there is not a sexual motive, how can there be a sexual act? I accept that we can return to the issue. I understand the distinction that the Minister is making—that there can be a sexual act without a sexual motive—but reading clause 79 worried me, because it gets us into esoteric distinctions as to what people understand. Once juries are asked, ''Are you satisfied that this is a sexual act?'' there is a risk that they will ask themselves, ''Why am I being asked this question? Either it's obvious, or there is something that I must decide about it.'' That is where the defendant will come along with all sorts of creative explanations. Anyway, we will leave the subject until we get to clause 79. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. The Chairman: Before I call the hon. Member for Woking to speak to clause stand part, I should say that, because of the nature of the subject, I have allowed a pretty wide-ranging debate. However, given that amendments have been tabled to clause 79, I hope that there will be no more referrals to that clause, except, perhaps, in a simple sentence. I do not want any more detail on that clause, because it is not relevant. Question proposed, That the clause stand part of the Bill. Mr. Malins: I shall be brief. I return to the principal point, which I made more than an hour ago. We know of what we disapprove, and we know that it should be made criminal, but we also instinctively know what should not be made criminal. That is commonly understood in Committee. Many months ago, I had the privilege to chat to Professor John Spencer, QC, of Selwyn college, Cambridge—a leading, if not the lead, academic in this and other criminal fields in Cambridge university. I advise the Minister to make contact, through his officials, with someone of that eminence to consider Column Number: 108 possible drafting measures to get over the problem to which I have alluded.The following problem is acute, and remains under clause 7: if a 12-year-old girl asks a boy of the same age to put his finger into her vagina, he is liable, on conviction, to imprisonment for life, despite the fact that she asked him to do it and makes no complaint. That is the beginning and the end of the story. If I am wrong, let the Minister tell me so. If any Committee member thinks that we should be happy with that proposition, let that person intervene on me now. Sufficient time has passed for it to be plain that no Committee member thinks that that young boy should go to prison for life. However, that is exactly what we are saying should happen. The Minister and his officials are under a duty to observe.
10.15 amMr. Neil Gerrard (Walthamstow): I do not disagree with the fundamental point that the hon. Gentleman makes. We are saying not that that should happen, but that it could, which is not the same thing. Mr. Malins: I take the hon. Gentleman's point. We are passing a law, saying, ''That is the law.'' I am not satisfied with the proposition that we should pass lots of laws and follow those with regulations saying, ''The laws are stupid, so we will not enforce them. We just like to have them on the statute book.'' I have already mentioned Professor Spencer. I shall return to what he said later, because he has more to say about other clauses. If we agree to the clause in its present form, it will become law. However, there is not a single Committee member who thinks that it is sensible. Someone somewhere must find a way to make an amendment—perhaps one of my later amendments—that will add something to the end of the clause to the effect that one person has caused harassment, alarm or distress to the other. We shall debate that later. We should be discussing that; otherwise, we are doing something that is utterly stupid. Paul Goggins: On Tuesday, the hon. Gentleman described his manner of speaking as self-deprecating. His self-deprecation does not, however, conceal his strong feelings about certain issues, and I sense that he feels strongly about this one. He says that the law must be clear. Committee members are clear that we must do our best to achieve clarity through our deliberations. The clause makes it clear that the sexual penetration of the vagina or anus of a child under 13 will always amount to an assault by penetration. The question of consent will always be irrelevant. Our policy is that a child under 13 should be deemed incapable of giving legally significant consent to any form of sexual activity. The hon. Gentleman describes a scenario involving two 12-year-olds. He did not speculate further about the degree of innocence in that relationship, or whether one of the children might have been, perhaps for some years, the victim of abuse in the family. The individual circumstances of such an offence and of the two children caught up in it will always be a matter of deep deliberation and Column Number: 109 consideration. All those circumstances will be taken into account at the point where the CPS has to decide whether to prosecute. If there were a prosecution and a finding of guilt, the question of the penalty would arise. Again, the specific circumstances would always be examined.Mr. Malins: That is a well made point and it shows the advantages of a Committee debate. My views remain the same, but the Minister makes a good point. Paul Goggins: I am grateful for the hon. Gentleman's comments. Perhaps I have said enough. Miss Julie Kirkbride (Bromsgrove): I am grateful to the Minister for his response, but, in contrast to my hon. Friend the Member for Woking, I am more alarmed. The following possibility is raised. Let us say that a young boy was invited to insert his finger into a young girl's vagina and suppose her mother found out, was upset and wanted to pursue a prosecution. That would technically be possible under the law. There may have been no abuse in the family. These things can, after all, just happen through sheer curiosity, perhaps arising from something that the children read in a book. They may have wanted to see whether it was more interesting than it looked. There do not have to be extenuating reasons why that young man behaved in that way. He was just doing what he will want to do a lot more of when he gets a bit older, but he will have to face court proceedings, which will completely change his life. He should not be put in that position at 12 years of age, when some kids will do what kids do. Paul Goggins: I hope that I can reassure the hon. Lady by emphasising again that the specific characteristics and circumstances of the offence and the offender will be the subject of some consideration. There is the world of the law, but there is also the world of good practice. Recently, I had the privilege of visiting the Aim project in Manchester, which is run by the National Society for the Prevention of Cruelty to Children. Mr. Gerrard: Will my hon. Friend give way? Paul Goggins: I will, but then I hope to say something about that project. Mr. Gerrard: I want to refer to the point that the hon. Member for Bromsgrove (Miss Kirkbride) made, and to raise a concern of mine that runs through all our discussions on this matter. Regardless of what we might say about the CPS guidelines that we expect, it is difficult to guarantee that all Crown prosecutors will adopt a common approach. Secondly—this is the hon. Lady's point—I do not see how that would protect against an attempt to bring a private prosecution. We can be pretty certain that there will be people who regard themselves as the moral guardians of the nation and who will be only too willing to attempt a private prosecution in some circumstances. Paul Goggins: My hon. Friend, with his vast experience, makes an interesting point, and I shall reflect on it further. I was going to make a point about the Aim project I visited in Manchester. In liaison with the police in Column Number: 110 Greater Manchester, it has established that whenever there is the possibility of a prosecution for a sexual assault by a child on another child there is an automatic bail period during which an expert from the youth offending team, with support and training from the Aim project, is able to assess in great detail the particular circumstances of the alleged perpetrator. That helps to inform the deliberations of the CPS and, eventually, of the court. Therefore, notwithstanding the provisions that we make, good practice can prevail, and sometimes it can provide the support that the perpetrators require, which is needed every bit as much as is the action to be taken against them.
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| ©Parliamentary copyright 2003 | Prepared 11 September 2003 |
