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Lord Ezra: My Lords, I, too, would like to thank the Minister and his department for the efforts that they made to discuss with us our reservations about the Bill so that they were fully aired. I believe that they have been dealt with fairly and reasonablyparticularly after the most recent remarks of the Minister on Clause 1(1)(a). Therefore, we also agree that the Bill should now pass.
Lord Sainsbury of Turville: My Lords, I commend the Bill to the House. In doing so, I would like to thank all the Bill team for their hard work, and all the noble Lords who have taken part in the detailed discussion of this apparently simple, but in fact complex, Bill. It has been a valuable exercise, and I hope that we have been able to reassure noble Lords that our objectives are common to the whole House. We will pursue this Bill with close financial controls.
Baroness Blatch: Clause 26 exempts from prosecution those who were in a sexual relationship immediately before a position of trust arose. It introduces an entirely new defence to a charge of abuse of trust. That defence is not present in the existing law on abuse of trust brought in by the Sexual Offences (Amendment) Act 2000. The clause creates a blanket defence to all abuse of trust offences, whether created in 2000 or under this Bill. The clause represents a reversal of Government policy.
I shall illustrate the turnaround that there has been. I shall quote from the Home Office guidance on abuse of trust issued in 1999 in the run up to the 2000 Bill. That guidance is very firmso firm that it grudgingly accepts a marriage exemption such as that now found in Clause 25 of the current Bill. In explaining the intention behind the 2000 Act, the guidance states:
In other words a teacher who wants to marry a pupil must not under any circumstances consummate the marriage until the wedding night. If they do marry the teacher should quit his job. In 1999 the Home Office was worried that a teacher could get around the Bill by marrying a pupil. Now the pendulum has swung to the other extreme. In 2003 under Clause 26 a teacher can get around the Bill by having a one night stand with a pupil.
That is precisely the point. It is the Government's own guidance. One cannot be in a position of trust and have a sexual relationship. Under the 2000 Act a defendant could not excuse himself by claiming that he was in a sexual relationship immediately before the position of trust arose. The Government thought that that was unacceptable, so the legislation contains no such defence. Neither should this Bill.
Clause 26 creates a serious loophole in the abuse of trust legislation; a loophole which I believe will be exploited to thwart many prosecutions. Under the clause, to escape conviction, all an accused person would have to show was that he had a sexual relationship with his victim prior to taking up his position of trust. Abuse of trust offences by their very nature are those most likely to have a young person spring to the defence of an adult who has abused their trust. By definition, prosecutors are not arguing that force has been used by the perpetrator, in which case a charge such as rape would have been laid. Instead, the young person has ostensibly consented.
The raison d'etre of the abuse of trust offence is that such consent is not real consent. The Government have decided that the risk to a young person of being manipulated is so great that such a relationship should be unlawful. The clause allows a defence which manipulative older persons can rely on routinely to escape prosecution. It is a defence that is much too easy to abuse. For examplea 16 year-old boy transfers to a new school. A 30-year-old female has sex with him and begins an intense relationship with the young man. The teacher is arrested for abuse of trust. She lies, claiming that their relationship started up before the boy started at the school. The boy is besotted with the teacher and agrees to back up her story. The police have to drop the case.
Clause 26 provides a defence if there was a sexual relationship "immediately" before the position of trust arose. That could presumably start up the weekend before term starts. Clause 26 could turn a one night stand into an alibi for abuse of trust. Indeed under Clause 26 it need not even be that.
For examplea 40 year-old male teacher starts his employment at a new secondary school on the first Monday of September. In a pub on the Saturday night before the start of term, the teacher meets a 16 year-old girl who attends the school. They get talking and the teacher realises that she is probably going to be in his A-level class. He ingratiates himself with the girl. She allows him to fondle her in a manner which is clearly sexual. After term begins, the teacher continues his relationship with the girl, who trusts him because of his position as a teacher and does not want to upset him because he is responsible for marking her work. He persuades her to have sexual intercourse with him. The girl's parents are concerned that she is out every night, and report the matter to the police. They are powerless to act, since the girl raises no complaint and the teacher argues a Clause 26 defencethat he had already had a sexual relationship with the girl before the position of trust arose.
In the area of education, the abuse of trust offence is tied to an institution. The teacher must regularly teach at the same school attended by the young person. Therefore Clause 26 will aid those manipulative adults who change their jobs in order to be in the same school as the young person whose trust is abused. Teachers from one school often meet pupils from another. Extra-curricular activities provide plenty of opportunities for this. Pupils who take part in inter-school competitions, sporting contests, or joint field-trips will often meet teachers from other schools. Many teachers also volunteer for other non school-related youth work, such as Scouts and Brownies. That is a particular practice of paedophiles.
It is possible that a teacher could have a sexual encounter with a 16 year-old from another school in one of those settings, relying on his position as a teacher. He would not be caught by any of the abuse of trust provisions because Clause 23(5) requires that the teacher and pupil must be at the same school. If the teacher then took a job at the child's school, he could continue the abuse of trust, free from legal sanction. He could argue that they already had a sexual relationship "immediately before" the position of trust arose.
What about the case of a paedophile who changes his job in order to gain access to young people whom he can abuse? It is a well-established fact that paedophiles often seek to put themselves in positions of trust over young people. Clause 26 hands them on a plate a technique for gaining immunity; they need only start the abuse before the position of trust arises. They can begin the relationship in a social setting or from a position of trust that is not covered by the Bill. In our debates on the second day in Committee, it was demonstrated clearly that there was a good number of such positions of trust. The abuser can then move into a position of trust from which they can continue and even intensify the abuse with impunity.
I shall give another example. Over a period of five years, a male social worker is assigned to help a family because of abuse of trust by a violent father. The social worker forms a relationship with an 11 year-old boy in the family, and the boy completely trusts the social worker. It is a common occurrence. After five years, the family is re-housed in a residential family centre, and the social worker takes up a job there a few months later. The police are tipped off by another member of staff that there is a sexual relationship between the social worker and the boy. The police suspect that the social worker may be a paedophile who groomed the boy for abuse over several years and took up the appointment at the family centre in order to be close to the boy, who, by this time, is 16. The social worker claims that the sexual relationship began when the boy was aged 16 and before he started his new job. He claims a Clause 26 defence, when arrested for abuse of trust. The boy supports his story. The police are powerless to act.
Such a case is not far removed from the sort of abuse that occurred in north Wales and was exposed by the Waterhouse report. That report showed that child abusers changed their jobs in order to abuse young
Such examples show that the exception simply cannot be allowed to remain in the Bill. If it is thought right to criminalise abuse of trust, the law should not contain unjustified exceptions. If it is wrong for teachers to have sexual relationships with those whom they teach, a teacher must make a decision: he can maintain either the sexual relationship or his professional position. If Clause 26 remains in the Bill, a teacher who starts a sexual relationship the day after term starts will commit a criminal offence, but the one who starts it the day before will not. In the first case, such activity will be an abuse of trust with a potential five-year custodial penalty; in the second, it will be fully defensible, and there will be no case to answer.
Clause 26 breaches the principle, which, until recently, the Government strongly endorsed, that those in positions of trust should not have a sexual relationship with those in their care. That principle should be maintained under the Bill, as under the Act. We should offer protection, in particular, to those most vulnerable to such activity. I beg to move.
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