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Baroness Noakes: We share the concern of the noble Lord, Lord Thomas of Gresford, about the way in which the abuse of trust clauses are constructed. Those clauses are very important and it is a major concern to us that they are workable and effective.

The noble Lord ably demonstrated how under Clause 18(2) and (3) the burdens of proof shift backwards and forwards. If that is not complicated, I do not know what is, especially if both defences are being run in the same trial. We heard yesterday about the complexity of various formulations for trial judges and juries. All parties claimed superiority, whether defending the status quo, the Bill or an amendment, in terms of simplicity for juries. I defy the Minister in this instance to defend the Bill in terms of simplicity when instructing a jury about how to reach a decision under subsections (2) and (3) and later similar provisions.

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If we cannot be confident about getting it right with regard to instructing juries, we are concerned that we cannot be confident that we have offences that are workable and effective. It is difficult to judge whether the amendment's formulations are right. They are certainly much simpler and I congratulate the noble Lord on that. As he pointed out, they make the approach more difficult and there is a higher burden on the defence. I am concerned that the amendments to subsection (3) would require the defence to prove two negatives: first, that the defendant did not know and, secondly, that he had no reason to believe. That is a detailed concern and lawyers who are cleverer than me can sort that out. I am pretty simple minded in this regard. I was struck, as was the noble Lord, Lord Thomas of Gresford, by the difference in formulation between the child sex offences and the abuse of trust offences in terms of relying on the prosecution proving an appropriate reasonable belief. Why was that formulation not adopted? It would not involve the formulation proposed by the noble Lord.

I hope that the Minister will also explain why the Government found it necessary to change the approach from the Sexual Offences (Amendment) Act 2000. The current law has another formulation again in that legislation. I hope that he will explain why the Bill's formulation is effective. I rather suspect that he will find that difficult. I hope that he will be prepared to consider alternative formulations.

Lord Skelmersdale: In supporting the amendment I am clearly not privy to what is in the noble and learned Lord's brief. However, before he responds to the amendment, perhaps he would cast his eye up the page to the formulation in Clause 17(1)(d) which states:

    "A does not reasonably believe that B is 16 or over".

Why is there a difference between that formulation and this formulation in Clause 18?

Lord Falconer of Thoroton: As the noble Lords, Lord Skelmersdale and Lord Thomas of Gresford, and the noble Baroness, Lady Noakes, are aware, in child sex offences and in Clause 17 the burden is on the prosecution at all stages in relation to those identified. In this formulation the burden is on the defendant to prove that he believed that the child was of a different age from that which he was. That is perfectly ECHR compliant because that is within the knowledge of the defendant. We are advised that it would not be ECHR compliant to place the burden on the defendant to say that it is reasonable because that is not specifically within his knowledge. It should be for the prosecution to prove that it is unreasonable under the circumstances. That is why it has been done in that way.

Does that lead to impossible comprehensibility for the jury? Can one put to the jury the question, "Has the defendant proved on the balance of probabilities that he believed that the other person was 18 or over?" If he has proved that, it is for the prosecution to prove that that belief was unreasonable. That is perfectly

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manageable as far as concerns the jury. It has been done in that way because of the ECHR. If noble Lords think that it would be better to shift the burden back to the prosecution on the defendant's belief, perhaps they should think again between now and Report. That seems to me to be putting on to the prosecution a burden which is unrealistic. It is for the defendant to come forward with why he thought the belief was unreasonable. Perhaps I may say with the greatest diffidence that I believe that both the noble Lords, Lord Monson and Lord Thomas, underestimate the ability of the jury to understand that.

Lord Thomas of Gresford: I do not underestimate the ability of the jury to understand anything. I have had the experience of directing juries on many occasions. I know from a recent case that if juries are provided with a series of complicated questions to solve, they get it wrong. The simpler the issues which can be put before them the better.

I am interested in the noble and learned Lord's comments on the impact of the European Convention on Human Rights. I shall consider that and discuss it with some of my noble friends who are deeply involved in that sort of litigation. It strikes me as curious that the reason for the formulation in Clause 17, referred to by the noble Lord, Lord Skelmersdale, where the prosecution have to prove that,

    "A does not reasonably believe that B is 16 or over",

is because it is compatible with the ECHR.

Lord Falconer of Thoroton: The reason why it is ECHR compatible is that it could not possibly be unfair to the defendant to place the burden of both on the prosecution.

Baroness Noakes: Perhaps I may ask the noble and learned Lord why in the 2000 Act it was phrased that he did not know and could not reasonably have been expected to know that B was under 18, or that B was a person to whom he was in a position of trust. The Government have chosen to change the formulation from the abuse of trust offence as enacted only just over two years ago.

Lord Falconer of Thoroton: You have not indicated from the passage to which you referred where the burden lies—

The Earl of Onslow: The noble Baroness!

Lord Falconer of Thoroton: I thank the noble Earl whose contribution to the debate so far, rightly, has been to ensure that we remember our manners. I apologise to the noble Baroness, who in referring to the 2000 Act did not indicate where the burden of proof lies. I am not sufficiently acquainted with that Act to know where the burden of proof lies.

Baroness Noakes: I believe the burden is on the defence. I shall consider the matter further.

Lord Thomas of Gresford: We will take away the wise words of the Minister, and consider them further. I am

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not satisfied with his explanation. There are things that we need to look at—the compatibility with the 2000 Act and with other parts of the Bill. I have a sneaking suspicion that this part was drafted by somebody other than whoever drafted earlier parts of the Bill. For the moment, I beg leave to withdraw.

Amendment, by leave, withdrawn.

10.15 p.m.

Lord Thomas of Gresford moved Amendment No. 98:

    Page 7, line 43, leave out "the other person" and insert "B"

The noble Lord said: These are the "B" resolutions. There is a raft of them, which your Lordships will see over the page in the Marshalled List. Again, it is purely a question of drafting. If we are going to use "A" and "B"—an innovation in statutes that is not many years old—they should be used consistently. That would make matters clearer when there was more than one person mentioned in a clause. That happens in some of the instances that are listed in my series of amendments. It is to alter the words "the other person" to "B". I would be interested to hear what the noble and learned Lord, Lord Falconer, has to say about it. I beg to move.

Lord Falconer of Thoroton: The amendments, Amendment No. 98 and others seek to remove references to "the other person" in the abuse of trust offences and the familial child sex offences, and replace them with references to "B". I understand that the amendments are intended to achieve consistency of drafting. The reason for the different terminology is best explained by way of an example. In Clause 29(1), the references are to "A", the person committing the offence, and "B", the victim of the offence. They are hypothetical people, used to explain what is and what is not acceptable behaviour. In Clause 29(2) and (3), however, the references are to the defendant and the other person. That is because Clause 29(2) and (3) apply when criminal proceedings are under way. The people in question are no longer hypothetical. There is a real defendant, and it makes sense to refer to him as a defendant. We could refer to that other person as "B", but there is no need to complicate matters. Having referred to the defendant, it is perfectly obvious who the other person must be. For those reasons, to achieve consistency, the amendments are not necessary.

Lord Thomas of Gresford: Clause 31(1) states,

    "Conduct by a person (A) which would otherwise be an offence under section 28 or 29 against another person (B) is not an offence under that section if they are lawfully married at the time . . . In proceedings for such an offence"—

proceedings having commenced, it should be appreciated—

    "it is for A to prove that he and B were lawfully married at the time.".

There is an inconsistency that runs through this, and for clarification, the letters should be used consistently. For the moment, I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendment No. 99 not moved.]

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