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Sex Offenders

4.24 p.m.

Lord Falconer of Thoroton: My Lords, with the leave of the House, I shall now repeat a Statement made in another place. The Statement is as follows:

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Baroness Knight of Collingtree: My Lords, might I ask the noble Lord—

Lord Falconer of Thoroton: My Lords, I am repeating a Statement, so I cannot take questions.

    "Mr Speaker, I want more criminals to be convicted. Not at the expense of the innocent but because of the cost to society. Giving more rights to victims and communities does not erode the rights of defendants. This is not a zero-sum game. It is a miscarriage of justice when an innocent person is wrongly convicted. And it is a travesty of justice when the guilty walk free.

    "Rape is one of the most terrible crimes there is. The current defence of honest belief in consent means that a rapist can claim in court, no matter

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    how unreasonably, that he 'honestly' believed consent had been given and walk free. That is not justice.

    "We do not wish to convict anyone who genuinely and reasonably believed that consent was given. But we do expect a defendant to show that his mistake was not only an honest one, but in the circumstances a reasonable one. I have no intention of asking anyone to keep a pen and paper by the bedside. But, we will include a test of reasonableness in the law.

    "All rapes, including drug rape, will continue to carry a maximum penalty of life imprisonment. A new offence of administering drugs with the intent to commit a sex crime will carry a maximum penalty of 10 years. We are sending out a clear message that such offences will be treated very seriously.

    "A new offence of sexual assault will cover a wide range of offending, from minor assaults through to serious, violent attacks. At the top end of the range, offences will carry a maximum sentence of 10 years.

    "Much has been written about the question of anonymity. I am not minded to change the present situation for defendants who have been accused of a sex crime. But I am prepared to listen to the arguments of those who feel strongly on this point.

    "There is increasing concern about the role of transnational and organised crime in trafficking children and adults for sexual exploitation. New offences with tough penalties will cover these crimes. We will apply these offences to persons trafficked within the UK, whether they are British citizens or foreign nationals.

    "Many in this House will be aware of the terrible exploitation of women and girls through organised criminal activity and the use of pimps to promote and control prostitution. Often, this is linked to drug dependency and what amounts to organised slavery. It is time in the 21st century to face the reality of this sub-world of degradation and exploitation.

    "We therefore intend to examine the scope for a review of prostitution. We need to listen carefully to those communities affected most. From anti-social behaviour to Mafia-style criminality, communities are bedevilled by this terrible trade. We must aim to create safer neighbourhoods and an escape route for those trapped by vice.

    "Our current laws on sex offences are not only archaic, they are discriminatory. Criminalising acts between homosexuals that are not against the law for heterosexuals goes against the principle of equality and previous reforms. We will therefore update the law to ensure equality of treatment. Consensual sex in private that does not harm anyone should no longer be a criminal offence.

    "For the sake of absolute clarity and my own peace of mind, I wish to point out that we will not be legalising sex in public. Existing provisions in the Public Order Act 1986 together with common law offences will remain in place. However, as well as

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    these we will introduce a new offence to deal with specific sex acts in a public place. This will reinforce a sense of decency and respect for others.

    "Mr Speaker, our overall aim is to create laws fit for the 21st century which provide confidence and protection—laws which remain true to the time honoured and accepted parameters of a free and civilised society.

    "I commend this Statement to the House".

My Lords, that concludes the Statement.

4.34 p.m.

Baroness Anelay of St Johns: My Lords, I thank the Minister for repeating the Statement made in another place. On these Benches, we welcome the content of the Statement. Of course, the White Paper deals with a wide range of issues relating to sex offences. In general, subject to a few caveats, it appears to have struck a sensible balance in dealing with questions that are, by any standards, difficult.

I was grateful to the noble and learned Lord the Leader of the House for indicating last week that this Bill would be a House of Lords starter in the new year. We will need to scrutinise the detail to ensure that the practical effect of the proposals does not undermine the entirely laudable objectives of protecting children and vulnerable adults and of closing unintended loopholes in the current law.

I am delighted that the Government have decided to adopt four of the key proposals to protect children from sex offenders put forward by my right honourable friend Oliver Letwin earlier this year. We also welcome the Home Secretary's refusal to make the sex offenders register public. Will the clauses relating to grooming be drafted in such a way as adequately to distinguish between a clearly evil pattern of behaviour intended to secure later sexual activity with a child and harmless behaviour by an adult towards a child? That will, no doubt, be particularly difficult to define when dealing with the pattern of behaviour in an extended family.

We welcome new measures to increase protection from sexual abuse for people with mental incapacity. When we debated the matter last month, in the debate so ably led by the noble Lord, Lord Rix—I am delighted to see that he is in his place today—I put several questions to the noble and learned Lord, Lord Falconer of Thoroton, who was kind enough, at the time to say that they were too difficult. He ducked them then; I am having another go now. I hope that I may be luckier this time round. Will persons who are held to lack the capacity to consent to sexual relations themselves be liable for prosecution if they engage in sexual activity with another person who lacks the capacity to consent to sexual relations? Paragraph 62 of the White Paper is not clear. Have the Government gone along with the Law Commission's recommendation that, if neither has capacity, there should be criminal culpability only if there is evidence of abuse or exploitation? Will volunteers who offer their services in residential care or nursing homes, hospitals or the personal home of an individual

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receiving care be liable to prosecution on the same basis as employees if they abuse their position of trust to abuse vulnerable people in their care? Will the definition of a vulnerable adult cover people required to be resident in the accommodation centres that the Government plan to set up to process the applications of asylum seekers?

I turn to the definition of consent in rape cases. I am sure that we agree that every allegation of rape must be taken seriously. We are aware of the widespread concern that it has become more difficult to secure the conviction of those who are guilty of rape, particularly date rape. However, we must all be cautious. In our desire to obtain the conviction of those who are guilty, we must ensure that we do not sacrifice the need to secure the freedom of those who are falsely accused. We must find the right balance so that juries feel able to convict where it is right to do so.

We believe that the Government have made an important start in a difficult area of policy. As Her Majesty's Loyal Opposition, we shall now do our job of scrutinising the Bill carefully, constructively and effectively to ensure that the balance struck is struck in the right way when the Bill becomes an Act.

4.38 p.m.

Lord Dholakia: My Lords, we thank the Minister for repeating the Statement on the reform of the laws on sex offences and offending. The issue is of concern to almost all members of the community. We have made several efforts, during the passage of past criminal justice Bills, to ensure that legislation is enacted that will protect children, who are possibly the most vulnerable of our community. We must effectively protect children from exploitation by bringing the law on sex offences into the 21st century. We welcome the Statement.

We will work constructively with the Government and other parties to ensure that children's welfare is of paramount importance. We shall utilise fully the opportunity for reform. We say that because we want the reforms to meet the needs and values of modern Britain. The laws on sex offences are outdated, and there is a danger that they discriminate against some sections of the community. That is well recognised in the White Paper. Almost all aspects of the Statement are welcome. That includes the new sexual offence to protect children, including sexual abuse of a child, grooming and trafficking and commercial sexual exploitation of children. We would expect legislation to improve the involvement of local communities in the planning system in this important aspect of sentencing and release of offenders.

We welcome the Statement on consent. Does the Minister accept the idea that an individual who is intoxicated cannot consent? It is right to ask the jury to consider the reasonableness of the defendant's claim that he had an honest belief that consent had been given.

We welcome moves to tighten the law on child prostitution to protect the victims from exploitation. Surely, it is right that we have a presumption that

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under 13 year-olds cannot consent to sex? On the Criminal Records Bureau issue, we have expressed our concern in the past that the Government's policy has gone badly wrong. Indefinite suspension of record checks is putting thousands of children and vulnerable adults at risk. We need assurances from the Minister that that will be put right at the earliest opportunity.

Assurance is needed regarding "sex tourists" who escape the current system by committing offences in countries where there is little awareness of the issues and the means to tackle exploitation of children is not in place. On the minors and sex offenders' register, can the Minister clarify the position of minors who commit sex offences? Has he considered that the Scottish children's hearings system might be a useful model for responding to juvenile sex offenders? There is also a need to examine the linked issue with proposals in the criminal justice White Paper regarding jury trials for juveniles.

As regards Sarah's law, can the Minister confirm that there will be no systematic public access to the sex offenders' register? The UK has a high compliance rate—97 per cent, compared to 50 per cent in the United States. On the matter of sex offender treatment, what plans are there to improve treatment facilities in the community? The Wolvercote clinic—the only residential unit in the community—closed in July. On consolidation, I suggest to the Minister, that this is a once in a generation opportunity. Is it possible that there may be a way to consolidate all sex offences Acts within this legislation? That may be the right way to proceed.

A further concern is about police resources to ensure that the offences are prosecuted. The proposed offences require law enforcement to investigate and prosecute successfully. The recent Operation Ore, investigating over 7,200 people who have bought indecent images of children from a website in the US, highlighted the enormous task facing the police dealing with Internet related cases of child abuse. The proposed grooming offence will require police resources to ensure that children are not left at risk. The NSPCC is calling for child protection to be a police priority in the forthcoming national policing plan.

In conclusion, we must ensure that the justice system can determine between offenders and those who may be incorrectly charged. In many cases, prosecutions are brought where the recollection of past years has faded. It is important to have tape recording of interviews and not simply reliance on police notes. The Home Affairs Committee in the other place reported on that proposal; I hope that we shall seriously consider it.

4.43 p.m.

Lord Falconer of Thoroton: My Lords, I thank the noble Baroness and the noble Lord for their welcome overall of the paper. I agree wholeheartedly that the Bill will need scrutiny in relation to its detail. The detail is very important. Perhaps I may deal first with the specific points raised by the noble Baroness, Lady

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Anelay. In relation to some of them, she wrote to me and to the noble Lord, Lord Rix, who sent her a reply in detail and then sent me a reply saying he was doing my job for me, which I quite agree with. The noble Lord was extremely helpful in the answers that he gave.

The noble Baroness asked whether we shall be drafting the Bill to distinguish between genuine grooming, in the sense of a criminal offence, on the one hand, and innocent contact on the other? The purpose of the grooming offence is designed to catch those people of 18 or over who undertake a course of conduct with a child under 16 leading to a meeting where the adult intends to engage in sexual activity with the child. An element of the offence, no matter how it is put, has to be an intention to have sexual activity with the child. It will be a matter for a jury to be satisfied beyond reasonable doubt that that is the purpose. The noble Baroness is right to distinguish between that sort of case and one where there is innocent contact.

Will a person who lacks capacity to consent be capable of committing the offences referred to in the Command Paper? Again, that will be a question of fact. There will need to be mens rea established on the part of any defendant against whom such a crime is alleged. In addition, there would be an issue of public interest. The same answer arises in respect to the noble Baroness's third question. She asked what would happen where two people, neither of whom had the capacity to consent, engaged in activity that might otherwise be unlawful.

Her fourth question raised the issue of volunteers—would they be caught? The essence of the crime is the abuse of a position of trust. If someone gets into a position of trust in one of the specified circumstances referred to in paragraph 60 of the Command Paper and then abuses that position of trust in ways specified by the law, it should not matter that that person is a volunteer as opposed to an employee. I did not understand the noble Baroness to be asking a specific question in relation to the rape crime; she was saying that it was important to get the balance right. The Government agree.

The noble Lord, Lord Dholakia, raised a number of issues. In relation to consent, we specify in the Command Paper a number of circumstances— in paragraph 31—where there will be a presumption that consent was most unlikely, though it would be open to the defendant to prove on the balance of probabilities that, in fact, consent was given. Intoxication is not one of the circumstances referred to in paragraph 31. The noble Lord made the point, in my view rightly, that under 13 one should not be capable of treating it as consent. We agree. It is not just a question of there being a presumption against consent for children of 12 or under. We are saying that a child of 12 or under cannot consent where consent is a relevant factor in the crime.

The noble Lord, Lord Dholakia, referred to the Criminal Records Bureau. He said that it was most unsatisfactory that certain checks are not currently in

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place. That is correct. However, it is worth pointing out that more checks are taking place now than at the time before the CRB was introduced. The Government are working hard to increase the numbers, but it would be wrong to rush the process if the CRB could not cope with the level of demand.

The noble Lord raised the question of juveniles on the sex offenders' register. Our position is that where a juvenile is charged and convicted of a sex crime to which the sex offenders' register applies, because the register has an element of public protection, it is right that that person should be on it.

The noble Lord raised the question of Sarah's law and asked me to confirm that there would be no systematic publication of the sex register. I am pleased to give that confirmation which my right honourable friend has given in another place. He expressed concern that Wolvercote has closed and that replacement arrangements should be made. We are looking at that. That has been made clear on a number of occasions.

The noble Lord said that this might be the opportunity to consolidate all the laws in relation to sex offences. The consequence of the Command Paper is that there will be a considerable body of law in relation to sex offenders and sex offences in one place. However, I cannot give him an assurance that it will be the whole law because there will still be other statutes that are of relevance.

Finally, the noble Lord referred to the importance of tape recording of interviews, particularly in crimes or potential crimes such as this, where great sensitivity is required. I agree and support what he said.

4.50 p.m.

Lord Morris of Aberavon: My Lords, I welcome the Statement repeated by my noble and learned friend. Fortunately, I have been involved in only a few but serious cases relating to paedophiles. Will he accept that the situation can be insidious and more widespread than perceived in the first instance by many? Will the police have the resources to investigate such cases?

I welcome in particular the proposals regarding e-mails and the consent of children. We must look at the issue of rape very closely. It is a question of balance. The real problem behind the complaint about so few convictions is that it is usually a one-to-one relationship and there are only two witnesses; the complainant and possibly the defendant. I agree that it must always be a question of balance.

As regards anonymity, I understood my noble and learned friend's remarks to mean that his mind is not closed and he will hear the arguments.

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