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Lord Rix: Since the noble Lord, Lord Astor of Hever, has already spoken to Amendment No. 220, which seeks a different approach with a similar result, I shall keep my comments on Amendment No. 221 brief.
I should say at the outset that I am not saying that sex between two adults, neither of whom knows what he is doing, is a good thing. I am saying simply that it is not a matter for criminal prosecution. Since there may be an inequality of strength or personality between the two parties, it may be entirely appropriate to stop the relationship if either or both parties is suffering rather than benefiting. That is to be sorted out there and then, in the light of all the facts and as sensitively as possible. It is not something to be sorted out over months and by involving the police and the courts.
My proposed new clause is quite tightly defined. It says nothing about consensual sex between parties having capacity and choice, or abuse by one party who knows what he or she is doing of another who does not know what he or she is doing. It says nothing about the unlikely but not impossible situation of a large and forceful A, who does not understand the nature and impact of sexual activity, perpetrating sexual violence on a small and inoffensive B, who knows all too well what is going on but is powerless to stop it.
I have concentrated on the most likely scenario and have sought to address it through direct provision in the Bill, although the Minister may prefer the guidance approach advocated by the noble Lord, Lord Astor of Hever. If so, I shall listen carefully to his comments, although I have an unrepentant preference for direct provision over assurances about future guidance.
Lord Campbell of Alloway: I support the amendment because the scale of mental disorder is all but infinite, and its effects are not so precisely known and are of various gravity. In a new look at the lawwhich this is in more senses than oneit is right that the Attorney-General should authorise a prosecution, having the advantage of totally objective advice as to the mental state of the person who is to be tried.
Baroness Blatch: I sound a note of caution on both Amendment No. 220 and Amendment No. 221. I wonder whether my noble friend Lord Astor of Hever is prepared to rely on the normal processes and the good sense and sensitivity of those who deal with these cases. If discretion is limited, it seems possible that the protection which the Bill offers might be undermined. It seems that there is a defence in the Bill whereby a person with severely limited understanding could not be convicted of an offence if they do not have the capacity. I hope that the noble and learned Lord can confirm that. I think that there is a defence.
As my noble friend said, mental disorder or learning disability covers a huge spectrum of disability in terms of seriousness. If a person is at the less serious end of the spectrum, then the law will view them as more responsible for their actions than someone who has a serious mental disorder. It is a fact that some disabled people who commit sexual offences deserve to be prosecutedthere are occasions when that is the case. They may well take advantage of other disabled people or of children or of adults. That is why I really am worried that the blanket ban which I believe these amendments would introduce could result in such people escaping justice.
I think that we run the danger that any additional guidance issued under Amendment No. 220 could be inflexible. Although I make that prediction, it may well be precisely the guidance that we would all want to see. However, the consequence of Amendment No. 221 is that a person could not be convicted of any sexual offence under Part 1 if both victim and perpetrator lacked sufficient understanding of the nature of the activity. That means that where the victim is learning disabled, the perpetrator can get away with committing
What is surprising about the amendment is that the exception is to the whole of Part 1. That could have severe unintended consequences if relied on as a defence by the perpetrator of, say, a child sex offence under Clause 9. It may be that defence lawyers will argue that neither party understood the nature of the activitythe perpetrator because of his disability and the child because of his age. As I said, the Bill as drafted contains a defence. A person who has severely limited understanding would not in any event be convicted of an offence as they would not have a mental capacity to have committed it in the first place.
Lord Falconer of Thoroton: I fully understand the considerations behind both amendments and I hope to give reassurance. It is perfectly plain that we all agree that the criminal law has absolutely no part to play in a significant number of the types of relationship to which the noble Lord, Lord Rix, referred. I should hope that it would not play a part in the vast majority of such cases. Usually, the prosecution of someone who lacks the capacity to understand the nature of his own actions due to a mental disorder or learning disability would be totally wrong and not possible as a matter of law because he could not understand that what he was doing was wrong. That would prevent a prosecution.
Amendment No. 220 would place a statutory obligation on the Attorney-General to produce supplementary guidance specifically in relation to persons with a mental disorder or learning disability. The code for Crown prosecutors and other CPS documents contain detailed guidance about the circumstances in which prosecution will be in the public interest. These will be updated as a matter of standard practice following the passage of the Bill.
For persons with a mental disorder or learning disability, criminal responsibility is not something that comes with a specific diagnosis; rather, it depends on the nature and facts of the whole case. It needs to be taken into account. If the case ever got to the CPS
I do not think that the new legislation creates new issues in that regard so far as concerns the prosecution. I appreciate the thinking behind the amendments. The Government are not interested in criminalising that which is not criminal. But because of the difficulty of providing for every circumstance, whether in legislation or guidance, one has to trust to the good sense of both the authorities and the CPS; otherwise one would get into a situation where something that was obviously wrong which might be very exceptional was not covered.
In the light of the assurances I have given, I hope that the noble Lord, Lord Astor, will feel able to withdraw his amendment; and that the noble Lord, Lord Rix, will not feel obliged to move his amendment.
Lord Astor of Hever: I am grateful to the Minister for his response. I agree with him and with the noble Lord, Lord Rix, that this is not an issue to be sorted out over a long period involving the police and the courts.
We applaud the thrust of the amendment in the name of the noble Lord, Lord Rix. However, we are concerned that someone who has a mental disorder or a learning disability and cannot therefore consent may have a condition which makes it unsuitable for him or her to have a sexual relationship. He or she may tend to use force or be unable to register unwillingness on the part of the recipient of their affections and to respond accordingly.
I am grateful for the support of my noble friend Lord Campbell of Alloway. My noble friend Lady Blatch asked whether it would be better to rely on the normal processes and pointed out that the guidance could be inflexible. We have received a great deal of briefing on the issue. Perhaps after discussion I may reflect on that. I agree with my noble friend that there are instances where someone with a mental disorder or learning disability deserves better treatment.
Clause 39 [Causing a person with a mental disorder or learning disability to engage in sexual activity by inducement, threat or deception]:
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