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Baroness Noakes: It comes as news to me that the offences are intended only for 16 year-olds and 17 year-olds. From reading the clause, it is clearly intended to apply to children below the age of 13. The construction of the offences appears to apply to all children. I understand that the offence was originally introduced in response to unpleasant cases involving children's homes and so were clearly not intended only for 16 and 17 year-olds. I will reflect on the Minister's remarks. They seem perfectly reasonable but nevertheless, it is clear from the Bill that the abuse of trust provisions are designed for more than 16 and 17 year-olds. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.30 p.m.

Lord Monson moved Amendment No. 109:

"(6) No prosecution for an offence under this section may be instituted except by, or with the consent of, the Attorney General if the prospective defendant was under the age of 21 at the time of the alleged offence."

The noble Lord said: With the previous amendment in mind, I suspect that I may be swimming against the tide. So far in Committee, the pressure seems to have been for stiffer sentences—perhaps with the exception of the child sex offences debated earlier and notwithstanding that our prisons are full to bursting. Perhaps it is time to rein back a little.

Throughout history, hormones have ensured that young men and women of roughly the same age will fall for one another whatever the cultural and legal

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restrictions in force at the time. We are now asked to believe that if an 18 year-old and a 17 year-old are smitten—to use a slightly old-fashioned word—and act accordingly, a quite shocking act has occurred that merits the 18 year-old being sent to prison for up to five years if he or she is nominally in a position of authority over the 17 year-old, even if the younger party is more intelligent and mature than the older one, as is often the case. The younger one is not necessarily vulnerable or exploited, as the noble Baroness, Lady Noakes, suggested.

On Second Reading, I instanced the case of a strapping 17 year-old intelligent young man, possibly even a woman, in hospital with a broken wrist—in other words, fully in possession of all his mental faculties but physically injured—and an 18 year-old nurse in the same hospital and ward falling for one another. Even if no more than a kiss were exchanged, under the clause the nurse could end up in prison for a substantial period—shades of the Taliban, or at least Saudi Arabia.

The noble and learned Lord, Lord Falconer, was kind enough to write to me after Second Reading to explain in so many words that the Government had no intention to be heavy-handed in the matter and, earlier today during our debate on child sex offences, he hinted that the law will be applied with a light touch. However, rightly, the Director of Public Prosecutions is chosen independently of the Government and the Government have no control of whether prosecutions are brought.

So the amendment, which requires the consent of the Attorney-General when the age gap is tiny—where the older person is under the age of 21—would ensure that prosecutions were brought only in genuinely serious cases. As I interpret what was said earlier, that accords with the Government's broad intentions in the matter.

I have not sought to apply that safeguard to other clauses for good reason. Clauses 19 and 20, which we shall debate in a moment, are somewhat ambivalent and need clarification. Clauses 21 and 22 are by no means ambivalent but deal with perverted rather than normal sexual behaviour, which has nothing to do with mutual affection, so the safeguard that I urge for Clause 18 is neither necessary nor desirable for them. I beg to move.

Lord Falconer of Thoroton: This is another example of a case where the noble Lord identifies circumstances in which it would plainly be inappropriate to bring a prosecution. He suggests the unique protection of the Attorney-General stepping in compared to all the other sexual offences in the Bill, in relation to which prosecution is at the discretion of the Crown Prosecution Service.

Although the new offences of abuse of trust are drawn slightly more widely than the offence enacted by the Sexual Offences (Amendment) Act 2000, this offence does not raise any new issues about prosecution. Decisions about whether prosecution is in the public interest are made by the Crown

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Prosecution Service. I am unaware that that has given rise to any difficulty. We expect the CPS to continue to exercise its discretion wisely. We in Parliament cannot define how that should be done. The Attorney-General's time would be unnecessarily spent considering such prosecutions. The code for Crown prosecutors contains detailed guidance about the circumstances in which prosecution is in the public interest. They will be updated as a matter of standard practice following the Bill's enactment.

Although I fully understand why the noble Lord moved the amendment, the protection that he proposes goes too far to deal with the problem that he identifies.

Lord Monson: I am grateful to the Minister for his reply; it is rather as I expected. However, I am slightly heartened by it. The Government's heart is obviously in the right place on this one. I hope that their expectations are fulfilled and that no "rogue prosecution" takes place. I of course reserve the right to consider the matter before Report, but with that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18, as amended, agreed to.

Clause 19 [Abuse of position of trust: causing a child to engage in sexual activity]:

[Amendments Nos. 110 to 112 not moved.]

Lord Falconer of Thoroton moved Amendment No. 113:

    Page 8, line 22, after "proved" insert "(a)"

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 114:

    Page 8, line 22, at end insert ", or

(b) that the other person was under 13."

On Question, amendment agreed to.

[Amendments Nos. 115 to 118 not moved.]

Lord Falconer of Thoroton moved Amendment No. 119:

    Page 8, line 30, leave out subsection (4).

On Question, amendment agreed to.

[Amendments Nos. 120 and 121 not moved.]

On Question, Whether Clause 19, as amended, shall stand part of the Bill?

Lord Monson: Perhaps I may ask the noble and learned Lord to clarify Clause 19 and, to save time, Clause 20, although technically we have not yet reached it. Clause 19 deals with causing a child to engage in sexual activity. At first glance the provision seems to indicate that it covers causing a child to engage in sexual activity with a third party, but it does not actually say so. I suppose that it could be extended to cover causing a child to engage in sexual activity with the instigator, so to speak. Similarly, as regards

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Clause 20, inciting a child to engage in sexual activity, the same slight doubt arises. Can the noble and learned Lord confirm or otherwise that both clauses are confined to causing or inciting a child to engage in sexual activity with a third party and not with the older person, so to speak, or the person in a deemed position of trust?

Lord Falconer of Thoroton: Clause 19 not only covers cases where the adult makes the child engage in sexual activity, for example sexual intercourse with the adult himself, but also where he makes the child engage in such activity with a third party, so it covers both. Similarly, in relation to Clause 20 the offence will cover situations where the offender incites the child to engage in sexual activity with him as well as with a third party.

Clause 19, as amended, agreed to.

Clause 20 [Abuse of position of trust: inciting a child to engage in sexual activity]:

[Amendments Nos. 122 to 130 not moved.]

Clause 20 agreed to.

Clause 21 [Abuse of position of trust: sexual activity in the presence of a child]:

[Amendments Nos. 131 to 139 not moved.]

Clause 21 agreed to.

Clause 22 [Abuse of position of trust: causing a child to watch a sexual act]:

Lord Falconer of Thoroton moved Amendment No. 140:

    Page 10, line 3, leave out second "a" and insert "any"

On Question, amendment agreed to.

[Amendments Nos. 141 to 149 not moved.]

10.45 p.m.

Lord Bassam of Brighton moved Amendment No. 150:

    After Clause 22, insert the following new clause—

Anything which, if done in England and Wales or Northern Ireland, would constitute an offence under any of sections 18 to 22 also constitutes that offence if done in Scotland."

The noble Lord said: The primary purpose of the "abuse of trust" offences is to provide protection in the criminal law for young people aged 16 and 17 (that is, above the legal age of consent) in circumstances where they are particularly vulnerable to being manipulated into an ostensibly consensual relationship by an adult (over 18) who holds a position of trust or authority in their lives.

The existing offence in the Sexual Offences (Amendment) Act 2000 has not yet been implemented in Scotland. It is the intention of the Scottish authorities to implement that offence rather than the wider offence that we are now introducing in this Bill. This gives us some cause for concern. We are anxious that there should not be a loophole in our legislation

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that would enable someone to evade prosecution by committing the act in another part of the United Kingdom.

We are concerned to protect, for example, the 16 year-old who goes on a school trip to Scotland and agrees to have sexual intercourse there with one of his tutors. We are closing this gap by introducing Amendment No. 150, which provides that any act that would constitute an abuse of trust offence if committed in England and Wales will also be an offence under the law of England and Wales if the act takes place in Scotland.

In the interests of enhancing the protection offered for young people under the criminal law, I respectfully ask the Committee to accept the amendment. I beg to move.

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