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Baroness Noakes: We on these Benches associate ourselves with the concerns expressed by the noble Lord, Lord Thomas of Gresford, in relation to the shifting burden of proof. We discussed that in almost the same terms in relation to the abuse of trust provisions in our previous Committee day, and drew the distinction between the drafting of those clauses and the sexual offences with children clauses—Clauses 9 to 14. We do not understand that difference, and hope that we will get an explanation or that the noble and learned Lord will consider the matter again.

12.45 p.m.

Lord Falconer of Thoroton: The noble Lord, Lord Thomas, raised two separate points. First, he asked why we place all the burden of proof on the prosecution in relation to Clause 9 and yet place part of the burden in relation to belief about age under Clause 28. Secondly, he asked why, even if the first question is answered, is there a shifting burden dividing it in two?

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The noble Lord asked a separate wodge of questions about sentencing. He asked why the maximum penalty under Clause 69 was two years, whereas the maximum penalty under Clause 28 was two years—

Lord Thomas of Gresford: Fourteen and five years.

Lord Falconer of Thoroton: Exactly.

In relation to the first question, the reason for the difference in overall approach between the Clause 9 and 11 offence and the Clause 28 and following offences is that in Clause 9 the defendant and the child may not know each other. In Clause 28 and associated offences, there is a familial relationship, so it is reasonable to say that the defendant should have the burden of saying, "I did not know or I did not believe that the child fell below the relevant age".

The second question concerned the burden of proof. When there is a burden on the defendant to set out what his or her knowledge was about the age, why shift the burden of reasonableness back to the prosecution? The European convention does not specifically refer to the question, but our view is that as a matter of law the convention in the circumstances of this offence would not uphold a reverse burden on the question of reasonableness, when it is an objective matter that a jury has to determine, and not something peculiarly in the knowledge of the defendant, such as the knowledge of age. It is purely because of that legal issue that the two have been separated.

As for the discrepancy between the sentencing for Clause 28 and for Clauses 68 and 69, that is accounted for specifically by reference to the age of the victim. For Clause 28 it is under 18 and for Clauses 68 and 69 it is over 18. Under Clause 28, when the defendant is very young, one would expect prosecutorial discretion to be used. The distinction is made because of the age of the victim.

Lord Thomas of Gresford: I do not see the need to shift the burden of proof to the defendant under Clauses 28 and 29, in the way that the noble and learned Lord describes. If the burden of proof remains with the prosecution, it is still for the defendant to raise the issue and give evidence that he did not believe, otherwise it is not an issue in the case. It is for the defendant to have the evidential burden, in the sense that he has to raise the issue by giving evidence about it. However, it is only right and fair that the prosecution should retain the overall burden of proof so that the jury is sure that the defendant did not have that belief. I shall return to that matter.

As for sentencing, Clause 69 is where a person over 16 receives penetration from a family member, perhaps with consent. That carries a maximum of two years imprisonment. In Clause 28, the defendant may be under 18 and be facing five years imprisonment. I do not see how one can marry those two levels of sentencing. It seems totally ridiculous that sexual touching should carry such a heavy penalty, whereas giving or receiving penetration from a family member

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with consent—all these offences are postulated as being with consent—should have the levels of sentencing to which I referred.

To follow the noble Baroness, Lady Blatch, there is a degree of political correctness here. Consensual intercourse between adult family members—people over 16—is regarded as not too serious, but when the word "child" is put into the offence, the sentence must immediately be more than doubled. That is offensive, and I shall return to the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 174 and 175 not moved.]

Lord Falconer of Thoroton moved Amendments Nos. 176 and 177:

    Page 13, line 22, after "proved" insert "(a)"

    Page 13, line 22, at end insert ", or

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

On Question, amendments agreed to.

[Amendments Nos. 178 to 182 not moved.]

Lord Falconer of Thoroton moved Amendment No. 183:

    Page 13, line 31, leave out subsection (4).

On Question, amendment agreed to.

Baroness Noakes moved Amendment No. 184:

    Page 13, line 37, leave out paragraph (a).

The noble Baroness said: In moving Amendment No. 184 I shall also speak to Amendment No. 198, both of which are probing amendments related to the use of family proceedings rather than indictment for the familial child sex offences in Clauses 28 and 29. Under those clauses, sexual activity with a child family member under 18 or inciting a child family member to sexual activity generally attracts a 14-year sentence except where the defendant is under 18, where sentence is either five years on conviction on indictment or six months or a fine on summary conviction. My amendments are designed to elicit the Government's thinking on how they see these clauses being used for those aged 17 or less and how they see the distinctions between summary proceedings and proceedings by indictment.

I tabled a similar amendment to Clause 14 which carries a similar sentence level in relation to under 18s who are involved in child sex offences under Clause 14, but I think that the Minister perhaps forgot to reply to it because I could not find that reply in Hansard—no doubt because our debate on Clause 14 ranged much wider than the matter of indictment and summary conviction. As with Clause 14, however, we are talking here about offences by young people, mainly 16 and 17 year-olds, against children. All of the points made when we debated Clause 14 are relevant here. The noble Baronesses, Lady Walmsley and Lady Jay, and the noble Earl, Lord Listowel—all of whom are in their place—raised points about children needing to be dealt with outside the criminal justice system. The

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force of all of those points is at least as great when considering the type of young people covered by Clauses 28 and 29.

I am well aware that there is a spectrum in relation to the gravity of offences involving children and that discretion will be used. However, I hope that the noble and learned Lord will say what will drive the decision on whether to pursue a prosecution. I believe that the Crown Prosecution Service will pursue a prosecution only when it is the only way in which to ensure that the child is treated properly and/or to protect other children. As I understand it, the criminal justice system will be used only when other remedies would not be effective. So we are talking about very serious child sex offence cases that should be left to non-criminal justice remedies.

If that is so, and if we have concluded that an offence is so serious that there must be a prosecution to ensure that the young person is dealt with or that children are protected, would we ever contemplate using summary proceedings which could result in a mere fine? Do we expect the offences in these clauses to be used only for the more serious type of familial child sex offences, when the other mechanisms—child protection, social care, medical care—cannot exclusively be used? If that is so, how could we contemplate using the summary proceedings with the minor penalties that they allow? I beg to move.

Lord Thomas of Gresford: I have already made my comments on the wide range of human behaviour and I shall not repeat them. However, the effect of Amendment No. 184 is on people who are under 18. It removes from them the possibility of appearing before a magistrates' court and receiving a summary conviction, simply for consensual touching of a family member who is also under 18. If I could be assured that forms of treatment and the measures to which the noble Baroness, Lady Noakes, and my noble friend Lady Walmsley referred were in place, perhaps it would be right to make the offence so serious that it could be dealt with only on indictment. However, until those measures are in place, and they are not at the moment, I think that one has to leave it open for those under 18 to be dealt with properly in the magistrates' court.

Lord Falconer of Thoroton: The noble Baroness, Lady Noakes, has refined her argument. She agrees that a wide spectrum of offending can occur. We all agree that much of that spectrum will necessarily entail a trial in the Crown Court. She then posed a question: if only very serious cases should be brought, should not the option of a summary case be excluded? I think that that would be unwise. Surely the right course is to let the prosecutorial authorities have the full range of options in dealing with what can happen in sexual situations and allow them to make their judgment on that basis. It would be unwise and much too difficult to make the guidelines so clear that although one thought that the criminal law should intervene, it could do so only in a way in which it could make a judgment on the seriousness of the case.

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The problem arises only in relation to over 18s. If the defendant were under 18, he would start off in the youth court, which could decide whether the case was so grave that it had to go to the Crown Court. The noble Baroness said that one could not contemplate a situation in which a fine would be appropriate. One can be fined in the Crown Court.

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