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Lord Astor of Hever: I am grateful to my noble friend for his observations. Clearly, this is a very important matter. I think that we shall return to the definition in great detail on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 206 not moved.]

3.15 p.m.

Lord Astor of Hever had given notice of his intention to move Amendment No. 207:

The noble Lord said: I shall speak also to Amendments Nos. 211 and 404. The amendments were designed to get to the bottom of the correct terminology. In the light of what the noble and learned Lord has said about reconsidering the definitions, I shall spare the House the rather lengthy speech that I was minded to give. I very much hope that we shall return to the matter in great detail on Report.

[Amendment No. 207 not moved.]

The Deputy Chairman of Committees (Baroness Pitkeathly): I call Amendment No. 208. If it is agreed to, I cannot call Amendments Nos. 209 to 211 for reasons of pre-emption.

Lord Adebowale moved Amendment No. 208:

    Page 15, line 40, leave out paragraph (d).

The noble Lord said: I shall speak also to Amendment No. 217. Some people have levels of mental disability so severe that they could not be regarded as being able to give consent in any circumstances. Examples include those who are profoundly learning disabled and many who are severely disabled. Such people will not be able to understand what was being asked of them or to communicate consent or the lack of it in any way. Absolute prohibition on sexual relations with such individuals is justifiable as essential for their protection.

Sexual contact with someone who cannot consent to that contact for reasons of severe learning disability should be a criminal offence. The amendment would make that offence one of strict liability. A defendant could not claim any defence once it was established that an individual was unable to give informed consent because of his severe disability. One can argue that it cannot be a defence that the accused thought that the individual gave his consent. My organisation, Turning

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Point, is aware of a case in which a person with a severe learning disability aged 30 was befriended by a member of his church and sexually abused. The accused claimed that he did not realise that the young man had a mental impairment, despite the fact that a clinical psychologist claimed that his condition was immediately apparent and that he could not give his informed consent.

I appreciate that there may be some cases in which a person's disability may not be immediately apparent or so self-evident, especially in a case of a person with autism or someone with a mental disorder. On that basis, I understand the rationale for including paragraph (d). Its drafting is an improvement on the current legal position, in which a defendant can simply claim that he did not know that someone had a mental disability as a means to escape punishment.

Indeed, I go further, I commend the Government for trying to close that dangerous loophole. On the other hand, I should not want the defence in paragraph (d) to be raised automatically with the solid intention of putting additional strain on the victim or used as a device to force that person to be cross-examined in the witness box, which has often happened. Similarly, I should be concerned if that was raised in cases in which the victim is so severely disabled that it would be absolutely evident that the person was vulnerable.

I am aware of a case in which it was established that a person was a "mental defective". That was challenged by the defendant. The victim was forced to give evidence, but the judge ruled that the victim was not a competent witness, refused that person special measures under the Youth Justice and Criminal Evidence Act 1999 and dismissed the case.

I hope that the Minister can reassure me that such a mistake by a judge will not happen once the Bill is enacted. The defence that the offender did not know that the victim had a severe learning disability is often not credible because of the circumstances or characteristics of the injured party. There is a case for dropping that as a special defence but not preventing it being pleaded in mitigation by an accused party. I should welcome the Minister's response to that suggestion.

In any event, I suggest that there is a case for guidance for Crown prosecutors and judges in this area to spell out the circumstances in which the defence in paragraph (d) can be raised; to reinforce the need for special measures to support the victim in court; and to explain how the reasonableness test in the clause will be applied in practice. I beg to move.

Lord Thomas of Gresford: This is a most extraordinary amendment. Although I appreciate the spirit in which it is moved, the noble Lord is suggesting that a person could be imprisoned for life for intentionally touching another person in a sexual way without realising that that person suffers from a mental disorder or a learning disability. Surely, the prosecution must show that the defendant has some mens rea. The use of the expression that he would be guilty if he,

    "could reasonably be expected to know that B has a mental disorder",

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covers all eventualities.

The noble Lord said that that should not be a defence where it is not credible. If a defence is not credible, the jury will not believe it; they will not accept it and will find the defendant guilty. Ultimately, that is the only way in which the criminal justice system can possibly work.

Lord Falconer of Thoroton: As the noble Lord, Lord Adebowale, said, and the noble Lord, Lord Thomas of Gresford, identified, the two amendments are designed to remove the requirement that sexual activity with a person with a mental disorder or a learning disability, or causing a person with a mental disorder or a learning disability to engage in sexual activity, is committed only where the defendant knows or could reasonably be expected to know of that person's mental disorder or learning disability.

I accept that in some cases where someone has a mental disorder or a learning disability sufficiently severe for them to lack the capacity to consent, that will be utterly apparent. In such cases, it would be relatively easy to prove that the defendant could reasonably have been expected to know of the person's lack of capacity to consent. I would have thought that that would apply in the sort of case that the noble Lord refers to when he says that the position was "immediately apparent". In the vast majority of cases, there would be no requirement to call the victim, because it would be proved by medical evidence that that was the position.

It is right to recognise that there may be cases where incapacity is not apparent and that there is a genuine defence. It is for the prosecution to prove its case. It is not possible for restrictions to be made on when the defence can be advanced; that must be a matter for the defence itself. But we should be prepared, first, to trust juries to reach sensible conclusions about it, and, secondly, to trust judges to ensure that there is no requirement for any demeaning cross-examination to establish the position. It can usually be established by the calling of other evidence.

I agree with the point made by the noble Lord, Lord Thomas of Gresford. It would be wrong to convict anyone of an offence that carried a maximum sentence of life imprisonment when they did not know, and could not reasonably have known, that someone did not have the capacity to consent to sexual activity. Therefore, although I understand the spirit in which they were moved, I must resist the amendments.

Lord Adebowale: I note the response of the noble and learned Lord, Lord Falconer. Although I understand the comments made on my amendments, my concern is that it is still possible for someone to be cross-questioned. The example that I gave is clear evidence of that, and it is only one among many. I am not sure that I am entirely satisfied. I note the comments of the noble Lord, Lord Thomas. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Amendments Nos. 209 to 212 not moved.]

Lord Astor of Hever moved Amendment No. 213:

    Page 16, line 4, leave out "possible" and insert "reasonably forseeable"

The noble Lord said: The amendment aims to challenge the reasoning behind the wording of Clause 33(2)(a). Subsection (2) gives two alternative reasons why B is unable to refuse sexual activity. Either he lacks the capacity to choose, or he is unable to communicate his choice. With the former option we are given a further explanation in brackets,

    "whether because he lacks sufficient understanding of the nature or possible consequences of what is being done, or for any other reason".

Amendment No. 213 proposes replacing "possible" with "reasonably foreseeable". "Possible consequences" is too broad and too vague. "Reasonably foreseeable" seems a better alternative. It points to the likely outcome rather than what is "possible", which might relate to any number of things. The Law Commission used the term "reasonably foreseeable" in response to the consultation document. It is a small point, but it is important we get it right. It is just the sort of thing that might become the basis of legal wrangling in court cases. So I would welcome the Minister's clarification on the choice of wording.

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