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Lord Ackner: My Lords, will the noble Lord allow me to intervene? I started by welcoming those parts that dealt with children and protected them from paedophiles.

Lord Falconer of Thoroton: My Lords, everybody welcomed the Bill. We will approach it constructively. I particularly welcome noble Lords who indicated a wish to help to make the Bill as good as possible. In many respects we share many of the objectives and outcomes sought. The issues look much more how we sought to achieve mutually shared outcomes, rather than other substantial policy differences between us as to how it may be done. While recognising that it is 7.20 p.m. on a Thursday, I shall deal with as many points as possible in the time available.

The noble Baroness, Lady Noakes, asked us to monitor the effect of the new formulation of rape and other offences. Of course we will. On grooming, she asked whether we had gone too far. She drew attention to the fact that one would have to prove the intention to meet the child with the purpose of committing some sort of illegal sexual activity. She rightly said that the proof of that intent would be pivotal in proving a grooming case. She is absolutely right. We have focused on what we think the essence of the offence is: contacting, or having a relationship with, a child with a view to committing an illegal sexual act. That is precisely how the offence is framed. Of course, we will listen if it can be more focused. Subject to the more detailed points raised by other noble Lords, we think that we have got it right, but we are more than happy to debate it in full during the passage of the Bill through the House.

The noble Baroness raised an inconsistency, giving the example that in Clause 11 the maximum sentence for inciting a child to engage in sexual activity was 14 years, whereas the maximum sentence for an identical offence involving a mentally impaired person was life imprisonment. She rightly asked whether there was an inconsistency in that regard. We need to look to see whether that is the case.

The noble Baroness raised a point about over-criminalisation, which many noble Lords mentioned. She gave two examples: a consensual relationship between an 18 year-old and a 15 year-old and a consensual relationship which is not harmful between two people with a learning disability. We are keen to ensure that proper protection be given both to children and people with learning disabilities or mental impairment. That will mean, as it does now in relation to current offences, that one must criminalise certain activities that, on the facts of a particular case, would never merit a prosecution because it would not be in

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the public interest for there to be one. But one must balance the ability of the CPS to say no to a prosecution against the fact that in certain cases, if the activity is not an offence in that form, terrible crimes may go unprosecuted.

The obvious example is a case where a 12 year-old and a 14 year-old have a relationship of such a nature that it would be wholly inappropriate to prosecute. But, equally, there may be cases in which a 15 year-old boy is brutalising someone under 13, or, worse, a 25 year-old is doing the same thing. We do not want a situation where the law requires that a lack of consent is proved in the case. As noble Lords all around the House have said, it is a delicate balance. We believe that we have got the delicate balance right. But it is that sort of balance that we need to examine as the Bill goes through the House.

Equally, as regards the relationship between two people suffering from mental impairment, we would like to make it clear—picking up the point made by the noble Lord, Lord Thomas of Gresford—that there is absolutely no intention to lead to criminal prosecution where there is a happy sexual relationship taking place. We are absolutely determined not to stop there being a legitimate sex life in those circumstances. But, again, we recognise the problems of proof which exist where abuse is occurring in relation to someone suffering from mental impairment. If there are no provisions for that one could never begin a prosecution. It is a balance which has to be struck.

The noble Baroness, Lady Noakes, made a number of points about the sex in public offence, which is Clause 74 of the Bill. There was a widespread feeling that it was important that sexual activity in public lavatories should remain criminal. It does. Clause 74 creates an offence additional to the current public order statutory and common law offences which exist to criminalise the kind of conduct referred to in public lavatories. We accept that we need to look again at the wording and its relationship with existing offences in order to make sure that the message, for which there was wide agreement in the House, is clearly sent through the Bill.

I move to a point of principle which arose. I am not sure that it is right to describe it as such. I refer to the issue of reasonableness as regards rape and related offences. The noble Lord, Lord Thomas of Gresford, supported by the noble and learned Lords, Lord Lloyd of Berwick and Lord Ackner, and by a number of other noble Lords throughout the House, took the view that we should not include reasonableness in relation to the offence of rape.

In effect, and as a matter of principle and practicality, it was being said that it was a mistake. The principle is that it is wrong to convict somebody of the offence of rape if they unreasonably, but genuinely mistakenly, believe that the victim consented. The point of principle needs to be addressed. If one allows the defence of honest but unreasonable belief in consent, it has the following consequences. It implicitly authorises the assumption of consent by the defendant, irrespective of the views of the victim. It encourages people to adhere to myths about sexual behaviour.

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The mistaken belief will arise in a situation where it is easy to seek consent and the cost to the victim of forced penetration is very high. It is not unfair to say to any person that they should take care that their partner is consenting and to be at risk if they do not take that care. There is no justice in a situation whereby a man or a woman who has been raped because he or she did not consent sees an assailant go free because of a belief system that society as a whole would find unreasonable. It is a policy issue.

With the greatest respect to the noble and learned Lord, Lord Ackner, it is a point which should be addressed in Parliament. It is not a matter simply for the lawyers to look at. There is a fundamental issue to be addressed. We have taken the view that it is right in principle that the reasonableness element should come into the case for the reasons that we have given. We believe as well that juries will be perfectly able to understand that element of reasonableness defined in Clause 1 of the Bill.

Lord Thomas of Gresford: My Lords, there is absolutely no proof that a jury has ever acquitted anybody whose defence has been "I had a mistaken belief and I accept that it was unreasonable". I have never come across a case where that kind of defence has been raised. In the experience of all the lawyers present, I would be very surprised that anybody has ever found an acquittal based on that alone.

Lord Falconer of Thoroton: My Lords, should that be so, I am surprised that the noble Lord is not encouraging the law to reflect the practice. In those circumstances, it is wrong that the law should not reflect how juries think. We believe as a matter of principle that this should be the law. It is entirely wrong to say that this is not a political issue and should not be debated politically.

I was gratified that the noble Baroness, Lady Noakes, on behalf of the Opposition, did not say that they would raise an issue in relation to this. I accept that she raised points about workability—particularly in relation to Clause 78—but I did not understand her to say that the Conservative Party objected to this change. I understand that the Liberal Democrats, however, do object to the change.

The noble Lord, Lord Thomas of Gresford, and others have suggested, perhaps pragmatically, that, in order to obtain more convictions, there perhaps should be a lesser offence than rape to deal with what has been described as the "date rape" kind of case. It is said that justice would then be done because juries would be more willing to convict in such cases.

Lord Thomas of Gresford: My Lords, I am sorry to interrupt. But also defendants would plead guilty and the victims would not have to give evidence. That is a very important consideration.

Lord Falconer of Thoroton: My Lords, it is said that they would. Let us address that point as a matter of

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principle. Setting the Boundaries contained evidence from victim and survivor groups in relation to rape. Everyone accepts that all victims are deeply affected by rape. In certain cases there was greater victimisation in rapes where there was some kind of pre-existing relationship between the defendant and the victim. Obviously stranger rape is truly appalling, but relationship rape, according to the evidence given to the steering group in Setting the Boundaries, raises additional issues of betrayal of trust and the victim being seen in certain respects as being responsible for what has happened. The steering group was told by those who counsel victims that those raped by friends or family often find it much harder to recover, and may take longer to do so in certain cases.

So it is difficult to see, as a matter of principle, that one should treat those kinds of cases as less serious offences. As a matter of principle we do not believe that it is right to have a lesser offence. As a matter of principle we believe it is right to have a reasonableness test because it would reflect a much better policy conclusion. We believe that a reasonableness test would be perfectly workable.

As to rebuttal of presumption, the noble Lord, Lord Thomas of Gresford, and other noble Lords who dealt with this issue, were again not putting it forward as a point of principle but primarily as a question of workability: could a jury be adequately directed with a sufficient degree of clarity? We shall have to look at that issue in Committee.

Let me give one example. In essence, in a case where, immediately before the relevant act of sexual intercourse which constitutes the rape, the defendant has threatened violence to the victim, we are saying that in those circumstances the defendant has to call some evidence to show that there was consent; and he has got to prove whether or not he reasonably believed the victim was consenting in those circumstances. That is simple, straightforward and utterly reflects the common-sense and justice of the position.

The noble Baroness, Lady Gould of Potternewton, raised a number of points. Let me deal with the three main ones. First, the question of advisers. She expressed the concern, as did a number of noble Lords, that advisers giving advice, particularly to young people who may be committing offences, should not be criminalised by the Bill. She is absolutely right. In accordance with the Gillick principle, the Government take the view that any adviser who is giving advice bona fide in the interests of the child cannot be guilty of aiding and abetting. I am more than happy to state that and to give the assurances sought. The noble Baroness has told me, both in the House and privately, that a number of agencies are worried about that.

My noble friend also asked whether the provisions on trafficking protect all children. There is no age limit, so they cover children and adults. Going back to the issue of over-criminalisation, my noble friend Lady Jay also asked whether we should be thinking about child protection in some cases in which what would otherwise have occurred would be a crime. Yes, we should. There will be many cases in which we will

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not prosecute, but this Bill creates criminal offences. It is not appropriate in this Bill to go through the detail of how the many agencies involved should approach an individual case in making a decision about whether to prosecute.

The noble Baroness, Lady Blatch, raised a number of issues about grooming, which I shall deal with quickly. She worried that the grooming offence was directed only at the Internet. She implied, rightly, that grooming often takes place elsewhere. We have framed the offence so that it is not dependent on it occurring on the Internet. It can occur through telephone, written or text communication or face-to-face meetings. She is wrong to worry that we have not dealt with offline as well as online situations.

On abuse of trust, the noble Baroness raised the question of scout troops or ancillary staff. We are creating a wide-ranging offence. We think it is right to restrict it to people who have a care or training function in relation to the people who may be victimised. We think it would be going too far to include a janitor or someone else who works in a school but is not a teacher. I understand the noble Baroness's argument, but a line has to be drawn somewhere and we think that is the right place. Part-time teachers or supply teachers could be covered if they regularly taught the victim. Teaching them for just one day would not be regular enough, but doing so for a whole term probably could be. It is a question of fact in every case. We need to look at the issue of part-time pupils.

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