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Baroness Noakes: We come to one of those areas of the internal consistency of the Bill. Amendment No. 53, which proposes a maximum life sentence for the offence of incitement, is based on a comparison to the corresponding offence in Clause 35, under which the incitement involves a person with a mental disorder or learning disability, because that offence carries a possible life sentence.
The comments made by the Minister are partially welcome. They align the potential penalties between Clauses 11 and 35 where the offence involves both a child under 13 and penetration. But I remain mystified by the lack of alignment on the incitement offences. I do not understand why incitement of a child under 13 to non-penetrative sexual activity or for other children is less heinous than with a mentally disordered person.
Looking forward in the Bill, Clause 35 makes no distinction between penetrative and non-penetrative sexual activity. I understand what the Minister said about the logic in regard to offences described earlier in the Bill but I have been looking forward in the Bill to offences involving mentally disordered persons. I should be grateful if the Minister would explain the logic in those kinds of cases.
Amendment No. 77 relates to Clause 15. Can the noble and learned Lord indicate the kind of circumstances that would lead to the conclusion that a summary conviction was appropriate? This group of amendments is particularly concerned with the under-13 category and the interaction with Clauses 12 and 13. I beg to move.
Lord Falconer of Thoroton: The Bill makes provision for the offences of "engaging in sexual activity in the presence of a child", "causing a child to watch a sexual act" and "arranging or facilitating commission of a child sex offence" to be tried either way. The effect of Amendments Nos. 54, 63 and 77 would be that these three child sex offences would be triable on indictment only.
The noble Baroness is aware that these offences cover a wide range of offending behaviour and, as I have said before, I do not accept that trial in the Crown Court will always be necessary. For example, although sexual gratification is a key element of the offence of "engaging in sexual activity in the presence of a child", where the relevant act is an 18 year-old masturbating in front of a 15 year-old the case might be more appropriately heard in a magistrates' court.
Similarly, if a 15 year-old were to be charged with the offence of "arranging or facilitating commission of a child sex offence" because he has made arrangements for his 17 year-old cousin to have sexual intercourse with a 15 year-old friend at his house while his parents are out, it would not seem necessary for such a case to be tried in the Crown Court.
By the same token, causing a child to watch a pornographic movie might be considered serious enough to merit trial in the Crown Court where the defendant is an adult and the complainant is a 10 year-old, but the circumstances surrounding an 18 year-old causing a 15 year-old to watch the same movie might make the case more suitable for trial in a magistrates' court. Similarly, where the child is 12 the case might be suitable for a magistrates' court.
It is not appropriate for the Sexual Offences Bill to add unnecessarily to the workload of our Crown Courts. It would increase delays and overburden the system with cases that could equally be heard by magistrates.
These are probing amendments. The difficulty is that there is a range of offending behaviour and the seriousness with which cases are treated will have to depend on the facts. I fully appreciate and accept why the noble Baroness has tabled the amendments. I hope that she accepts that there is a range of such behaviour. We shall not make much progress on this issue unless she accepts that there has to be discretion.
Baroness Noakes: I thank the noble and learned Lord for that answer. I shall read what he said in detail. He indicated that age would influence whether an offence was directed towards the magistrates' court rather than the Crown Court. I shall want to reflect on that in regard to these clauses and others. In the mean time, I beg leave to withdraw the amendment.
The noble Baroness said: In moving Amendment No. 55, I shall speak also to Amendments Nos. 57, 58, 59, 61 and 62, which all relate to Clause 13. They stand in my name, with support for some of them from the noble Baroness, Lady Noakes, for which I thank her.
Amendment No. 55 seeks to add the words "or for gain". The reason for this is that it seems odd that the Bill, as currently drafted, proposes to make it an offence for an adult intentionally to cause a child under 16 to watch a third person engaging in a sexual act or to look at a photograph or pseudo-photograph of the same where obtaining sexual gratification is his reason for so doing, but if the same person did it for gain it would not be an offence. So you can sell the stuff and that is okay. Surely not. That is not the intention of the Bill.
I appreciate what has been said elsewhere about the provenance of the Bill but I none the less consider it important to continue to promote an amendment which seeks to put similar conduct done for gain on the same footing as conduct done for sexual gratification. The intention behind the amendments is to raise the duty of care which online publishers will be expected to observe in relation to pornographic materialthat is, that, at the very least, no website should present pornographic images on its home page. Anyone selling or promoting such material should, at the very least, interpose a warning page which, if you click on to it, will warn you that are about to see adult material. The standards I have in mind in relation to the display are those in the Indecent Displays (Control) Act.
Amendments Nos. 57 and 61 seek to add the word "recklessly" at different points. This means that publishers will be expected to take steps to verify the age of people to whom they might be selling or promoting material. Amendment No. 58 seeks to add the words "or allows" to make it clear that a person would be guilty of an offence if he simply failed to take reasonable steps to prevent someone watching a video or seeing a picture of a sexual act.
Baroness Noakes: I shall speak to my Amendment No. 56 and to Amendments Nos. 57 , 58 and 59, to which I have added my name to that of the noble Baroness, Lady Thornton. I agree with almost all the points raised by the noble Baroness. There are many issues of concern about the way in which the clause has been drafted.
Amendment No. 56 is a probing amendment. It seeks to delete the word "intentionally" from subsection (1)(a). "Intentionally causes a child to watch a sexual act" has connotations of coercion. The Explanatory Notes refer to a person who forces a child to watch a pornographic film. We have had helpful discussions with members of the Metropolitan Police who have told us that paedophile behaviour is often much more subtle. Paedophiles will leave pornographic material lying around in the hope that children will look at it out of natural curiosity.
We support Amendment No. 57, which seeks to add the words "or recklessly". Our amendment is in an alternative format. It does not inquire into the mind of a defendant; it merely states that if by his action of leaving material lying around he causes a child to see it, he will be guilty of the offence on the basis that those who are involved in exposing children to this kind of material should beware.
We wholeheartedly support Amendment No. 59 which seeks to extend the material to any other visual depiction. Again, we have received clear advice from the Metropolitan Police that we need to include cartoons, tracings, drawings and other visual representations which, in the view of the police, are often very much more disturbing than photographic pictures and so forth.