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Lord Northbourne: I stated earlier that this is a probing amendment. I shall, therefore, withdraw it. It seems to me that I shall never be able to argue with the phalanx of lawyers present in this Chamber. I understand the logic from a lawyer's point of view, but my worry relates to the unintended outcomes of the legislation. I believe that the noble and learned Lord referred to "proper process". However, we need to ensure that the unintended consequences of the Bill do not operate seriously to the disadvantage of children with there being nothing like enough male teachers in schools; too few male workers in the youth service; and not enough men prepared to become involved in residential social care. The latter are important consequences that could prove to be extremely damaging to a wide range of children.

I ask the Minister to consider how this problem can be overcome. I wonder whether other amendments could be introduced in that cause. Perhaps the noble and learned Lord could ask his officials to consult the Department for Education and Skills and the relevant departments concerned with local authorities. I am sure that he will find that grave difficulties are already being experienced in the recruitment of men to work with children in the care and social work community.

Baroness Blatch: Before the noble Lord concludes, I do not want anything that I said during the course of this debate to be seen as an argument against some of the points that he has just made. We have made life very difficult for male teachers, for step-parents; and, indeed, for very many people.

Perhaps I may quickly recount a story regarding the experience of a young teacher, just out of training, who was working in a primary school. The children under his charge were out on what we would have called in my day "a nature walk", studying trees, leaves and collecting samples to take back to school for identification, drawing and colouring purposes. A little girl in the group ran ahead and fell on a gravel path. She grazed her knee quite badly. The male teacher picked up the little girl, dabbed her knee with his handkerchief, and put her on his shoulders to carry her back to school. As a result, he later found himself in very serious trouble. He subsequently left teaching, never to return to it again.

The noble Lord, Lord Northbourne, has made some very serious points. However, I am not convinced that they fit into our deliberations on this Bill as regards someone facing a serious charge in court. I do not want the noble Lord to feel that the points he has made and the concerns that he has expressed are falling on deaf ears. That is certainly not so in my case.

Lord Northbourne: I am most grateful for the noble Baroness's support. I accept that the way I have perhaps addressed the question is the wrong way. However, I had to raise the issue somehow. We may be

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able to discuss better ways to approach the problem at the next stage of the Bill. I beg leave to withdraw the amendment.

Clause 4 agreed to.

Clause 5 [Sexual assault]:

[Amendments Nos. 22 to 28 not moved.]

Lord Falconer of Thoroton moved Amendment No. 29:

    Page 3, line 9, leave out "Section 78 applies" and insert "Sections (Presumptions about the absence of belief in consent) and (Conclusive presumptions about consent) apply"

On Question, amendment agreed to.

4.45 p.m.

Baroness Noakes moved Amendment No. 30:

    Page 3, line 11, leave out paragraph (a).

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 32 and 45. This is the first of a number of groups of amendments that I have tabled on a probing basis to discover the Government's intentions as regards the circumstances in which certain offences under the Bill could be regarded as appropriate for summary conviction, and the much lower penalties that attach to summary convictions.

Clause 5 deals with sexual assault. Conviction on indictment can carry up to 10 years' imprisonment compared with six months' imprisonment, or even a fine, on summary conviction. The offence of sexual assault is widely drawn. It covers a spectrum ranging from the act of kissing at one end to penetration at the other. Potentially serious matters certainly fall within the ambit of Clause 5. Can the Minister say what the Government believe should affect whether a summary conviction or a conviction on indictment is thought appropriate? Can the noble and learned Lord say what guidance will be given to the Crown Prosecution Service?

Clause 6 raises even more concerns, because it deals with the sexual assault of under 13 year-olds. There is the possibility here of a summary conviction, even though conviction on indictment can carry the maximum determinant sentence of 14 years. Can the Minister say under what circumstances such a case might be dealt with on a summary basis?

Clause 7 deals with the offence of causing a person to engage in sexual activity without consent. Where penetration is not involved, there is the possibility of six months' imprisonment or a fine on a summary basis, or 10 years' imprisonment on indictment. What kind of non-consensual sexual activity could fall within the category that would appropriately be dealt with on a summary basis?

These amendments seek the clarification from the Government on the points raised. I look forward to hearing the Minister's reply. I beg to move.

Lord Falconer of Thoroton: Amendment No. 30 is designed to probe what is appropriate in relation to indictment. In effect, the noble Baroness answered her

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own question on sexual assault under Clause 5. This can cover very serious offences but can also cover cases that are very much less serious. In relation to the less serious offences, the noble Baroness asked what approach the Crown Prosecution Service would take in such circumstances. I cannot give the Committee a comprehensive answer. The CPS must make such a decision based on the seriousness of the offence. It would be quite misleading to try to lay down strict criteria in relation to such matters. Such decisions must be left to the good sense of the CPS.

Clause 6 deals with sexual assault of a child under the age of 13. Where, for example, an 18 year-old kisses a 12 year-old with his or her consent, I am not convinced that it would always be necessary for such a case to be tried in the Crown Court. I can envisage circumstances where it might be appropriate for it to be dealt with in a magistrates' court. Again, the CPS would have to make a judgment about the seriousness of the offence.

Finally, Clause 7 relates to,

    "causing a person to engage in sexual activity without consent".

Here, too, there could be circumstances where one man causes another to touch his naked body in a sexual manner—behaviour that could well fall within the power of summary trial. But, again, that would depend upon the facts of the particular case. Underlying this perfectly legitimate probing amendment is the fact that there will be a great range of conduct. The question is whether we should always ensure that the case goes to the Crown Court. In each of these offences, we believe that there could be circumstances for which summary trial would be appropriate.

Baroness Noakes: I thank the noble and learned Lord for his reply. However, it was lacking in specificity because it gave examples of extremes that would not offer the kind of guidance that might be required. In particular, the Minister referred to the possibility of an 18 year-old being dealt with by summary conviction. That may be a difficult area and we shall seek the Minister's further guidance.

Lord Falconer of Thoroton: I referred to an 18-year-old because where the accused is under 18, the proceedings will start in a youth court anyway.

Baroness Noakes: I was just making the point that the issues are whether or not one should prosecute, then the appropriate place. I will carefully read the Minister's remarks. Other amendments raise more substantive issues than this group, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5, as amended, agreed to.

Clause 6 [Sexual assault of a child under 13]:

[Amendments Nos. 31 to 33 not moved.]

Clause 6 agreed to.

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Clause 7 [Causing a person to engage in sexual activity without consent]:

[Amendments Nos. 34 to 40 not moved.]

Lord Falconer of Thoroton moved Amendment No. 41:

    Page 3, line 40, leave out "Section 78 applies" and insert "Sections (Presumptions about the absence of belief in consent) and (Conclusive presumptions about consent) apply"

On Question, amendment agreed to.

[Amendments Nos. 42 and 43 not moved.]

Baroness Walmsley moved Amendment No. 44:

    Page 4, line 7, leave out paragraph (d).

The noble Baroness said: In moving this amendment, I shall speak to Amendments Nos. 44, 46 and 65. This group of amendments is about the appropriate way of dealing with teenagers close to each other in age who participate in under-age sex. The purpose is to ensure that there is a defence of consent for under-18s who participate in sexual activity with someone between 13 and 15 and to ensure that the penalty for non-consensual sex committed by under-18s is consistent in the Bill at a maximum of five years. For example, Clause 14 determines that the maximum sentence shall be five years.

We want to prevent the prosecution of, say, a 17-year-old boy who has sex with his 15-year-old girlfriend with her consent but where her parents make a complaint to the police. The amendment would not prevent the prosecution of a 16 or 17-year-old if there has been no consent. Then the offender can be prosecuted under the provisions of Clauses 1, 3, 5 and 7. While we may not wish to encourage under-age sex, we must be realistic, accept that it happens and take appropriate measures.

Young people close together in age cannot be viewed in the same light as a much older man who takes advantage of a young girl. The law should not present a barrier to a young girl who may wish to receive sexual health or contraceptive advice but fears doing so in case she gets her boyfriend in trouble. Again, it is a matter of unforeseen consequences. We should be in the business of harm reduction and the law should play its part. I beg to move.

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