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Baroness Walmsley: Can the noble and learned Lord tell the Committee how many of those young people receive treatment?

6.45 p.m.

Lord Falconer of Thoroton: I do not know the answer. I am sure that not enough are receiving treatment. The second problem that we have to deal with is what we are doing about those children. The noble Earl, Lord Listowel, and the noble Baronesses, Lady Howarth and Lady Howe, have graphically described what children in those situations are doing. We want to stop them offending. Should we say that the criminal law has no part in that? The second part of the debate poses that question. The first part of the debate is that, in order to avoid criminalising those things that should not be criminal—and most of us would agree that there is a lot of activity here that the criminal law has no part in—do we in effect make the age of consent optional, which is what the proposal involves?

As I have indicated, the CPS can make decisions. There is no indication that there is a problem at the moment. Where it is agreed that sexual activity has taken place—that would be covered by the amendment of the

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noble Baroness, Lady Noakes—but there are clearly abusive circumstances—for example, one child is engaged in sexual activity with a number of other children or has pressurised the other children into agreeing—it is possible that the most effective way of preventing the child causing harm to children in the future may be psychiatric help or child protection procedures. But the criminal law has to be available for that to be the most effective option in such cases, particularly where it will enable the child's behaviour to be tackled properly.

The amendment of the noble Baroness, Lady Noakes, talks about consent and consent where the non-defendant—if I may use that phrase—has a full understanding of what has happened. How are those problems to be resolved when one is dealing with possibly abusive circumstances, where there is peer pressure or pressure by the defendant that may have caused what is, in effect, abusive conduct? There is such a wide range of circumstances that one does not want to make the law much more complex and make it harder to intervene where necessary .

We all agree that there may be cases in which the behaviour is so serious and so abusive that the criminal law has to intervene, even when those committing the abuse are children. How are we to define those circumstances? We cannot take such decisions in Parliament. We cannot capture the complexity of each case that may arise. Such decisions need to be taken on a thorough assessment of the circumstances of each case. The criminal law cannot provide a tailor-made response, which is why the Crown Prosecution Service takes and continues to take a decision on whether a prosecution is in the public interest in every case. Where prosecution is appropriate, I am sure that it is wrong to have a situation where nuance and difficulty—the result of the amendment of the noble Baroness, Lady Noakes—become the order of the day in relation to what happens in court.

The age of consent most certainly has benefits, but only if it is clear. That is the effect of the current position. If public protection for children is one of our aims, and there is not a real difficulty in the way in which the law operates in what may be regarded as innocent circumstances at the moment, surely we should err in favour of the protection of children. The criminal law needs to provide a strong framework to deal with the most serious behaviour, but a prosecution does not have to be pursued in every case. That is exactly the same as the current position. It does not remotely mean that the criminal law will be invoked in every case if an alternative course of action will be more effective in protecting children. That will apply to circumstances in which it is patently abusive behaviour. But maybe the invocation of the criminal law is not the right course. I hope it goes without saying that it certainly does not mean that a prosecution will be pursued in cases where the behaviour is genuinely and mutually agreed.

Recognising the difficulties of the problem that the noble Baroness, Lady Noakes, seeks to deal with in her amendment, we believe that the right course is a clear age of consent. Not putting either the courts or

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children in difficulties in certain circumstances is the best way to approach the matter. One then has in one's armoury the power to deal with it when there is a problem. If at the moment it is not proving to be a problem in practice, we do not want to cause other problems in relation to public protection.

The second issue raised fairly and squarely by many noble Lords is what we are doing about those who are plainly guilty of abusive, criminal behaviour. Are we providing enough for them? I touched on that in answer to the noble Earl, Lord Listowel, earlier. It is a complex issue. I repeat that it has not received the focus and the attention that it should. Young people and children who abuse are a diverse group. From the interventions made in this short debate it is plain that many noble Lords have greater experience than I, as many have recently visited somewhere that provides treatment for such people. We need to look at that; there needs to be a strategy. It is an area that has been neglected in the past.

We have taken some steps to address the problem. We are funding a dangerous and severe personality disorder study to look at the characteristics of children and young people who commit sexual offences. The National Probation Directorate funded a two-year pilot project developing assessment and treatment tools. The Youth Justice Board has issued effective practice guidance and is evaluating the effectiveness of an initial assessment tool for practitioners; and together with the National Organisation for the Treatment of Abusers and the NSPCC, the Youth Justice Board is funding a national research project that is mapping the nationwide availability of services for young people who sexually abuse.

As I have indicated, the Home Office and the Youth Justice Board have set up an interdepartmental working group with the Department of Health and the Department for Education and Skills to look at the whole issue of young people who sexually abuse. I accept that a strategy is required. The group will report to Ministers later this year. I openly indicated that the strategy will depend in part on resources and, in their turn, resources will depend on the result of the spending review in 2004. I recognise the problems, I have said that officials are looking at them and I have explained that more needs to be done, but I cannot give any assurances as to what may be done.

A theme that came through many of the speeches was that as early as possible we should identify children who are at risk of becoming inappropriately sexually active as sexual abusers and at risk of being abused themselves. I thoroughly and wholeheartedly agree. It is not simply a matter of identifying children but of having an effective process by which intervention can take place. Those who are involved know full well that the interventions required will not be just the social services or just health or just the criminal law or just the Connexion service. We need to make all the agencies work together and focus on the individual to achieve the best result for him or her and for society. We need to consider ways whereby

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someone is responsible for ensuring that all agencies are brought to bear for individual children at risk, whether victims or offenders.

The Children at Risk Green Paper is due to be published in May. It focuses on three key outcomes: maximising the potential disadvantage to children in terms of educational achievement, employability, life skills and mental, sexual and physical health; preventing children from becoming victims of crime, abuse and neglect; and reducing offending by children and young people. The group about which we are talking is a small group within that wider group. The Children at Risk Green Paper will seek to address all those issues.

That is our answer in policy terms to the second range of issues posed. The noble Baroness, Lady Howarth, said twice, in the most hurtful way imaginable, that the Bill is too insensitive to deal with the problems. She is right in the sense that the Bill does not seek to embark upon the problems. It seeks to provide a framework of criminal law that is able to deal with the most serious cases, providing protection for victims. That means that high maximum sentences have to be available and that the process by which a crime is made out does not involve great difficulties of brief. There are also the points that the noble Baroness, Lady Blatch, rightly made about secondary victimisation in court, where a child victim of another child abuser is forced to go through a prolonged cross-examination of precisely whether or not he or she did consent to the activity. I fear that would be the consequence of the amendment. I do not believe that the noble Baroness was asking me to defend all of all Clause 14 but was seeking a debate.

Amendment No. 71 would place a statutory obligation on the Attorney-General to produce supplementary guidance specifically in relation to the prosecution of children under age 18. The code for Crown prosecutors and other CPS documents contain detailed guidance about the circumstances in which prosecution would be in the public interest. Those will be updated as a matter of standard practice following the Bill's enactment—though the problems that current law raises, in terms of lots of activity that one would not remotely think of criminalising, are set out in the code.

In those circumstances, the statutory obligation on the Attorney-General to produce the guidance envisaged in the amendment is not necessary. It is standard procedure for prosecution guidance to be updated whenever existing legislation is changed in any way. Once the Bill has been given Royal Assent, the guidance will be updated in respect of prosecuting not only children but all offenders.

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