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Baroness Howarth of Breckland: I support my noble friend Lord Northbourne, but should like to ask the Minister a question. I take the view that the appropriate sentence for such behaviour must be available and that there must be a clear distinction and boundary between the young woman and the adult. I therefore disagree with the noble Lady, Lady Saltoun.

In my long experience in Childline and working with the Lucy Faithfull Foundation, my concern has been with the dozens of youngsters who will not come forward because they are determined that they will not put the adults in their lives through that process. That process means them being on child abuse registers, probably being imprisoned, and often takes the breadwinner out of the home.

As the noble Lord said—I am terrible at knowing the correct nomenclature—there is a clear difference in the spectrum of abuse. On one end, there are those who

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should never be let out of prison—I am a great believer in indeterminate sentences with continuous assessment. At the other, there are people for whom prison is an entirely inappropriate solution to a family problem.

The great problem that we have with the Bill, because it is insufficiently sensitive to the issues with which it deals, is how we assure ourselves that that spectrum and framework is present, so that the lawyers among your Lordships, when in the courtroom, will be able to achieve the right sort of sentence for the circumstances after assessment and having thought through the question of treatment programmes.

Baroness Blatch: Am I right in my understanding that the sentence is not mandatory but a sentence of up to life imprisonment? When one considers the relatively minor offence described by both the noble Baroness and the noble Lord, Lord Northbourne, and the much more serious offence alluded to by my noble friend Lord Skelmersdale, it is right that they should both be accounted for. It will be for the courts, as they do in other offences where life is a possible sentence, to take account of the severity or relatively minor nature of the case and ensure that the sentence is appropriate. Many who know what is the maximum sentence are greatly frustrated when the courts dispense a much lesser sentence, but we have always taken the view that that should be a matter for the judge and the courts.

Lord Northbourne: I am not clear which minor sentence I mentioned. I mentioned violence against children. If we consider the Victoria Climbie case, if that child had not died, the maximum sentence would have been 10 years. I am saying that we must get the balance of the maximum sentences right.

Baroness Blatch: I must apologise to the noble Lord if I misunderstood what he said. I thought that the thrust of what he said was that if the maximum possible sentence is life, the temptation on the part of the person committing the offence might be to murder the child rather than be guilty simply of that initial offence against the child, and that the sentence of life is therefore inappropriate.

Lord Northbourne: Yes, indeed, I did say that, but that was another point.

4.30 p.m.

Lord Carlisle of Bucklow: The purpose of Parliament setting a framework for sentencing is to give an indication of the seriousness with which it regards the offence. To replace the words "life imprisonment" with "a maximum of 14 years" may be taken as implying to the judiciary that for some reason an offence under Clause 2 is less serious than one under Clause 1. I cannot believe that there are not offences of penetration of a horror, degree of bestiality and distress to the victim for which it would be wrong to have a different maximum sentence from that which applied to the rape case, even if the provision were used only seldom.

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Lord Northbourne: Would it not be possible to bring such a case under Clause 1?

Lord Carlisle of Bucklow: With respect, I do not think that it would. Clause 1 defines rape specifically as penetration by penis. Clause 3 describes penetration of various natures. It may be penetration by an animal, a knife or a fist. It would not be right for Parliament to attempt to send a message to the judiciary that in some way such offences are less serious than the offence of rape. As someone who is bitterly opposed to mandatory sentences, as the Minister knows, I believe that it is Parliament's duty to set the framework in which a penalty should be imposed.

Lord Campbell of Alloway: I agree with my noble friend. We seem to be forgetting that the importance of the life sentence is not the time spent in prison but the fact that you are under licence from the time you are released. In these sex cases, that is an important factor. Listening to the debate, it seems to me that it is far better to keep a life sentence because if it is the kind of case where the man should be kept under constant supervision you can award the maximum sentence, the life sentence, and protect everybody. If it is not that kind of case, the judge can impose four years or five years and deal with the circumstances. To throw away the safeguard to the community which exists in the life sentence—the protection of people—would be wrong.

Lord Cameron of Lochbroom: I hesitate to intervene, having been a judge in another jurisdiction just over the Border from England, Wales and Northern Ireland. However, perhaps the Minister will agree that this part of the Bill endeavours to distinguish between acts of rape of the child under 13 who is the victim, and others. Likewise, Clauses 3 and 4 make precisely the same distinction because consent is not a necessary part of the offence; and likewise in Clauses 5 and 6 where, in Clause 6, consent is not a necessary part of the offence.

From my own experience, I believe that the kind of conduct which is struck at by Clause 4 can extend to just as serious conduct as is contained in Clause 3. As regards Clauses 5 and 6, it might properly be said that a distinction is made in the maximum sentence which can be imposed between conduct aimed at the child under 13 and someone over 12. I should have thought that that could certainly be said to be a proper way to proceed. Under Clause 4(2) the sentence must be fixed to include those who have offended in the past as well as the first time convicted offender. I understand that that is the manner in which all sentences are fixed by statute; namely to have regard to the full circumstances which may arise with regard to the offender by the sentence imposed. I may be wrong in my understanding of what is intended by Clauses 2, 4 and 6 as distinguished from Clauses 1, 3 and 5.

Lord Falconer of Thoroton: The account of the circumstances by the noble and learned Lord, Lord Cameron of Lochbroom, is exactly right. The noble Lord, Lord Northbourne, asks, quite legitimately, for an explanation of why we have adopted these

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sentences. The noble and learned Lord's approach is broadly right. Clause 1, rape on someone over 13, not an adult, attracts life imprisonment as the maximum. I emphasise "maximum" because it has been said that it is for the discretion of the judge to determine where, below the maximum, sentence is passed. No noble Lord has suggested that it is not appropriate to have life as a maximum for rape.

Clause 2 relates to rape of a child under 13. It is inconceivable that one would have a lower maximum for rape of a child under 13 than for a rape of someone over 13. Therefore, there can be no distinction there about the maximum.

I believe that the mood of the Committee is to recognise that assault by penetration can, in certain circumstances—particularly if done more than once—be so damaging as to attract a sentence of life imprisonment. That involves a case where the victim is 13 or over.

If life imprisonment is right in those cases, it is again inconceivable that one could have a lower maximum sentence when the victim was 12 or under. For sexual assault, the maximum is 10 years. Should one have a higher maximum when the victim is a child under 13? I should have thought that common sense would suggest strongly that one should.

That is how we have constructed the maximum sentence. The noble Lord gives three reasons why the sentences may be too great. First, he says that good and decent men are already concerned about false accusations. If serious sexual offences are committed, the issue is not whether they should be given a low sentence because they are worried about false accusations. The focus should be on ensuring that before a conviction there is proper evidence and proper process but, once convicted, an appropriate sentence should be passed. That will not mean necessarily the maximum but in the appropriate case one should be able to impose the maximum.

Secondly, the noble Lord raises the possibility that if the sentences are too long it would encourage murder. Again, with respect, I am not sure that that is necessarily right. If the range involves maximums of life, 14 years or 10 years, I wonder whether those distinctions are being drawn in the cases we are discussing.

Thirdly, the noble Lord is right to identify that all too many victims, in particular child victims, are fearful of coming forward because of what may happen when the case is brought to court. I suspect that that issue does not relate to what the criminal law provides. It is inconceivable to say that the criminal law should not exist in this area. The issue is about how one provides support and makes contact with people in that specific circumstance. That is the basis upon which we have approached the matter.

The noble Baroness, Lady Howarth, said that this is too crude an instrument to deal with the whole range of cases that I believe she would recognise as stretching from the most vicious sort of sexual offender who, she would say—quite apart from any other reasons—should be locked up for as long as possible, to those committing much less serious offences. The noble

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Baroness is absolutely right. But, again, this is the criminal law part of the story where the crime should be defined with clarity, with the right range of sentences being available to the judge.

In the light of my explanation, I hope that the noble Lord will feel able to withdrawn the amendment.

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