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Paul Goggins: I shall accept your invitation, Mr. Gale. Those of us who do not live near the hon. Gentleman's constituency none the less read the reports in the newspapers and can only share in the sense of distress that there must have been in the community.
Existing legislation covers the exhumation of dead bodies without lawful authority, but there is no other protection for the body of a person once they have died. There is currently no law covering the sexual penetration of a dead human body or part of a dead human body. I am sure that the hon. Gentleman and other members of the Committee will agree that that is a somewhat surprising omission from the criminal law, since it represents a violation of the respect that should be shown for human remains. When such behaviour comes to light, it is profoundly distressing for the family of the dead person. In Committee, we are introducing an important new offence, which I am sure will go some way to reassuring the hon. Gentleman's constituents.
Question put and agreed to.
Clause 72 ordered to stand part of the Bill.
Clause 73
Offences outside the United Kingdom
Mr. Malins: I beg to move amendment No. 214, in
clause 73, page 35, line 12, after first 'or', insert 'lawfully'.
As I see it, clause 73 indicates that if a certain category of person commits an offence abroad, they are, so to speak, guilty in this country and can be charged. Under clause 2, someone who is resident in the UK—even if they are not lawfully resident in the UK—could also be charged. I wonder whether that is a good idea in principle.
I can understand why a British citizen who commits an offence in this country should be charged and prosecuted. I can equally understand why a British citizen, or someone who is lawfully resident here, who commits an offence abroad can be charged in this country. If we are discussing charging someone who is unlawfully resident in this country with an offence committed abroad, issues such as taxpayers' money and wasting time come into play.
If someone who is unlawfully resident in this country has committed an offence abroad, it would be much simpler to use our natural powers to deal with them. If those who are here unlawfully were charged in this country with an offence committed abroad, they would go through the full panoply of legal aid, which would impose a cost on the taxpayer. I wonder whether it would be worth it. Does the Under-Secretary envisage that people who are resident in this country unlawfully would fall within the ambit of the clause?
Paul Goggins: In reading the hon. Gentleman's amendment, I was interested in the concept of an unlawful British citizen. One is either lawfully a British citizen or one is not.
Mr. Malins: Subsection (2) states,
''or has since become, a British citizen or resident in the United Kingdom'',
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so I did not assume that a resident in the United Kingdom meant a British citizen; I thought that it was a separate category.
Paul Goggins: But certainly. ''Resident in the United Kingdom'' refers to persons who are lawfully resident in the United Kingdom, but who are not British citizens. We are not seeking to prosecute someone who arrives in the UK, for child sex offences committed in a country that they have come from or travelled through. We must draw a line on jurisdiction.
Mr. Malins: In that case, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 73 ordered to stand part of the Bill.
Schedule 2
Sexual offences to which section 73 applies
Paul Goggins: I beg to move amendment No. 101, in
schedule 2, page 76, line 15, leave out '15 and'.
This is a minor drafting amendment. Paragraph 1 of schedule 2 lists the offences in England and Wales to which section 73 applies so that where one of the offences specified in paragraph 1 is committed in a foreign country with an equivalent offence, the offence may be tried in a domestic court. At present, sub-paragraph (a) refers to offences under clauses 6 to 15 and 17. The amendment simply makes that reference neater by changing it to offences under clauses 6 to 17. The amendment makes no change to the substance of the Bill.
Amendment agreed to.
Schedule 2, as amended, agreed to.
Clause 75 ordered to stand part of the Bill.
Clause 79
''Sexual''
4.30 pm
Paul Goggins: I beg to move amendment No. 123, in
clause 79, page 37, line 33, after 'Part', insert '(except section 67)'.
The Chairman: With this it will be convenient to take Government amendment No. 124.
Paul Goggins: Hon. Members may be aware that the way in which the definition of ''sexual'' in clause 79 is currently framed caused concern in the other place. It has already been a matter of some debate in this Committee. One of the noble Lords suggested that the clause's wording would be difficult for juries to understand, which could potentially involve their reaching the wrong decision on whether a particular act was sexual. There was also some confusion over the phrase ''(at least)'' in clause 79(1)(a). We do not want to interfere with the practical effect of clause 79 because we believe that it requires the jury to apply the right tests when deciding whether an activity was sexual. However, we have no wish to complicate matters for the jury and are happy to reword clause 79 in the interests of clarity.
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Clause 79 provides a definition of ''sexual'' for the purpose of the offences in part 1 and is intended broadly to reflect the definition of ''indecent'' in the context of indecent assault in current case law. The jury are required to use three criteria in their assessment of whether an activity was sexual: whether an act is sexual by its own nature or is only ambiguously sexual by nature; the circumstances in which the act took place; and the purpose of any person in relation to the act. In short, the test covers all activity that a reasonable person would consider to be sexual. However, it rules out any activity that a reasonable person would never consider sexual by reason of its nature, such as removing a person's shoes. That ensures that we do not capture activity that no reasonable person would consider to be sexual, and may have been sexual only because the defendant happened to have a secret fetish not made known to the victim—in that example, a foot fetish.
At present the test in clause 79 works as follows. Its first part, in paragraph (a), covers any fundamentally sexual activity such as sexual intercourse or masturbation. In such cases, a reasonable person would be in no doubt, simply because of the nature of the act. Both the tests at paragraph (a)—that the nature of the act is sexual and that because of its nature a reasonable person would consider it sexual—would be met. As well as activity that is obviously sexual by nature, the clause also covers acts that may or may not be sexual depending on the circumstances and/or purposes of any person. For example, digital penetration of a woman's vagina by a doctor may be fundamental to diagnosis or treatment, but could also be wholly irrelevant and only carried out for the doctor's sexual gratification. The jury must therefore consider the circumstances and the doctor's purpose. Similarly, touching a person's thigh is by its nature possibly sexual, but the circumstances in which the touching takes place, and the reason for it, will determine whether it is in fact a sexual act.
As currently drafted, the whole of clause 79, including paragraphs (a) and (b), is relevant to all decisions on whether an act is sexual. Although the new version of clause 79 continues to apply the same tests, it clearly separates activity that is sexual by nature, and would be considered to be so by any reasonable person regardless of the circumstances in which it takes place or the purpose of any person in relation to it, from activity that is sexual only because of those circumstances or that purpose. That has exactly the same effect as the current test but will be easier for juries to understand. That should ensure that only activities that a reasonable person would consider to be sexual will fall within the scope of the offence in part 1.
Amendment No. 123 is technical and would disapply clause 79 from the offence of sexual activity in a public lavatory, which was debated earlier at clause 67. Hon. Members will recall that by virtue of amendment No. 120, clause 67 now incorporates its own definition of what constitutes sexual activity, which is appropriate to the kind of offending behaviour covered by that offence. I do not intend to speak any further to amendment No. 123, because we
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discussed the relevant matters in detail in connection with amendment No. 120.
Mr. Grieve: I simply welcome the amendments. There was no doubt in my mind when I first read the Bill that the definition of the word ''sexual'' in clause 79 as it stood would be a potential disaster area in a jury trial. I just about understood what it meant, but those who represented strongly that it did not read easily and would be very difficult to explain to a jury were absolutely right. One has only to consider the definition in amendment No. 124 to see that it is much easier to understand.
Amendment agreed to.
Amendment made: No. 124, in
clause 79, page 37, line 34, leave out from 'if' to end of line 39 and insert
'a reasonable person would consider that—
(a) whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.'.—[Paul Goggins.]
Clause 79, as amended, ordered to stand part of the Bill.
Clause 80
Part 1: general interpretation
Amendments made: No. 102, in
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clause 80, page 38, line 3, at end insert—
'( ) ''Image'' means a moving or still image and includes an image produced by any means and, where the context permits, a three-dimensional image.
( ) References to an image of a person include references to an image of an imaginary person.'.
No. 103, in
Clause 80, as amended, ordered to stand part of the Bill.
The Chairman: Order. Before we leave, I wish all Committee members a productive three weeks and, perhaps as importantly, remind them that, for the purposes of the House, Tuesday 14 October will be a Monday in terms of sitting times. Therefore the Committee will sit not at 10 minutes past 9, but at 10.30 am. I am pleased to be able to say that I will be in the Chair.
Further consideration adjourned.—[Mr. Heppell.]
Adjourned accordingly at twenty-three minutes to Five o'clock till Tuesday 14 October at half-past Ten o'clock.
The following Members attended the Committee:
Gale, Mr. Roger (Chairman)
Baird, Vera
Beresford, Sir Paul
Brooke, Mrs.
Bryant, Mr.
Dawson, Mr.
Gerrard, Mr.
Gidley, Sandra
Goggins, Paul
Grieve, Mr.
Harman, Ms
Heppell, Mr.
Hesford, Stephen
Hughes, Beverley
Keeble, Ms
Kirkbride, Miss
Malins, Mr.
Morgan, Julie
Randall, Mr.
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