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Baroness Noakes moved Amendment No. 224:

The noble Baroness said: I rise to move Amendment No. 224 and to speak to the other amendments in the group. The Committee will be relieved to hear that I shall not in fact be speaking on an individual basis to all 22 amendments. They are similar amendments to various clauses which seek to establish the circumstances in which the Government would regard it as appropriate for the relevant offences to be tried on a summary basis rather than by indictment.

We have already considered several of these amendments in Committee. I have agreed with the suggestion made by the Minister's officials that, in order to speed up the deliberations of our Committee, I would group the majority of the remaining amendments and accept from the Minister a written reply or replies covering them.

Perhaps I may remind the Minister that I shall be seeking from him clarification of the types of circumstance for each offence which are regarded as so minor that a six-month sentence or a fine would be appropriate. In particular, I hope that he will direct his replies to those cases where the corresponding penalty on conviction on indictment would result in a potentially significant sentence—for example, the maximum determinate sentence. I am trying to find out whether there are minor versions of what would otherwise be very serious offences.

I also seek to ascertain whether the Government intend to issue any guidance on the approach that they expect prosecutors to take, and, if so, what form that

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guidance would take and when it would be issued. As I, and possibly other Members of the Committee, will want to consider the Minister's reply in good time for Report, I have asked him to reply no later than the day after the Committee concludes. I hope that he will agree to provide the reply by that time. I understand that the Minister will copy his letter to Members of the Committee and will place a copy in the Library. If the Minister can confirm those arrangements, I shall be pleased to withdraw Amendment No. 224 and not to move the remaining amendments in the group. I hope that other noble Lords will agree that this is a convenient way to proceed. I beg to move.

Lord Rix: I should like to join the noble Baroness, Lady Noakes, in stressing the need for the Crown Prosecution Service not to take the softer option of a summary conviction. Unfortunately, Mencap has been only too aware of too many cases in which the criminal justice system has not been geared up to take seriously the evidence of those with a learning disability. A crime may be reported, but it often comes to nothing because of the insensitivity and the rigidity of the system. Negative assumptions are often made about the ability of the person with a learning disability to give evidence, while the adversarial nature of the court acts as a barrier to the delivery of justice.

That is the case in spite of the distress and grief suffered by the victim and his or her family, and the sometimes painstaking investigations by police or others. Too many offenders have gone free or have been given lighter sentences, and too many people with a learning disability have suffered unnecessary humiliation as a result of failures and shortcomings in the criminal justice system.

While I welcome the important measures introduced in Speaking up for Justice, which provide extra support for vulnerable witnesses and victims, I should like to make sure that legislation further enforces the view that people with a learning disability are regarded as credible witnesses.

I hope that the Minister will tell us specifically when he perceives a summary conviction is likely to be used, and I seek assurances that guidance will be produced so that all reasonable steps are taken to ensure that the right conviction is pursued.

Lord Bassam of Brighton: I am most grateful to the noble Baroness for telegraphing her approach to the matter. I rise simply to confirm that we shall endeavour speedily to publish guidance and to ensure that the circumstances in which we would anticipate cases being tried in the lower court are made clear. It will be a matter for careful consideration by the CPS in the guidance it gives the courts but, ultimately, it will be a matter for the courts.

We take these matters very seriously; I have no doubt that our colleagues in the Courts Service will also take them very seriously, will weigh up the appropriateness of each individual case to suit particular circumstances, and ensure that the most appropriate court deals with offences. There is extreme sensitivity about these matters. We will try to clarify the circumstances in

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which such cases are tried—perhaps in the lower court rather than a higher court—to the satisfaction of the noble Baroness by Report. I cannot give her a precise date or time from the Dispatch Box now, but in the interests of brevity, I think it best that we leave the matter there. We will reply in writing to the points raised by the noble Baroness.

Baroness Noakes: I thank the Minister for that reply. I hope that when his officials prepare his letter, they will also take on board the points made by the noble Lord, Lord Rix, about people with learning disability. I emphasise to the Minister that it would be fair if we had the responses by the end of Committee. I should not want to labour on Report with a large number of unnecessary amendments taken one at a time. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 agreed to.

Clause 42 [Causing a person with a mental disorder or learning disability to watch a sexual act by inducement, threat or deception]:

[Amendment No. 225 not moved.]

Clause 42 agreed to.

Clause 43 [Care workers: sexual activity with a person with a mental disorder or learning disability]:

Lord Thomas of Gresford moved Amendment No. 226:

    Page 20, line 29, at end insert ", and

(e) A knows or could reasonably be expected to know that B has a mental disorder or learning disability

The noble Lord said: The issue raised by this group of amendments concerns the position of a care worker compared with anyone else who indulges in sexual activity with a person with a mental disorder or learning disability.

Clauses 33 to 42 in each case place on the prosecution the burden of proving that the offender knew or could reasonably be expected to know that the other person had a mental disorder or learning disability and because of it was likely to be unable to refuse. The clauses that deal with care workers, on the other hand, change the burden of proof, so that it is necessary for the defendant to prove that he did not know that the other person had a mental disorder. The burden then switches back to the prosecution, if he succeeds in proving but he did not know that the other person had a mental disorder, to prove that he could reasonably have been expected to know.

I have already addressed the Committee at length about the confusion that is bound to arise from shifting the burdens of proof—explaining it to the jury, and so on. It has been explained to me that the Human Rights Act 1998 and the European convention require that manner of proceeding. Why is it thought necessary to draw a distinction between the ordinary person and the care worker in such a technical matter concerning how the burden of proof rests on the

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defendant? That is the issue. I should like an explanation of that before I consider whether the matter is worth pursuing.

I come from Wrexham, so I know what happened in North Wales. A care worker could well be charged with offences against someone for whom he is not a care worker—counts one to 10, perhaps—while counts 11 to 20 could be in respect of his activity as a care worker and concerning someone in his charge. The problem that then arises is in directing a jury that in the one set of offences, its approach to the burden of proof is to be this, but in the other set of offences, because the person suffering from a mental disability is under his care, it must have a totally different approach in coming to its conclusions.

That is a recipe for real confusion. I see no reason why the Government should not simply direct the courts that if a person is a care worker and the person under his control suffers from a mental disorder or learning disability, the sentence should be increased. I see no reason for setting out some nine or 10 clauses simply to deal with shifting burdens of proof.

As I said, this is a probing amendment. I want to hear what is the Government's thinking behind the provision. I do not think that they have fully appreciated how difficult it will be to explain precisely how the clauses will work. I beg to move.

Lord Campbell of Alloway: I support the amendment. I agree with everything that the noble Lord said about the shift in the burden of proof and about the problems of directing a jury. I shall be very short, because I shall have much more to say on the matter when we debate Amendment No. 397A. For the moment, on the shift in the burden of proof, it is thrust on the accused to establish that his conduct matches that of a reasonable person—I am using simple English. Just imagine: there is the jury. Do the members of the jury imagine for a single moment that the man in the dock, charged with rape, is their concept of that abstract, hypothetical norm, a reasonable person? Of course not. So how will they approach the matter? What direction is the judge to give them? That is the acid test. Must they convict if the man is not a reasonable person, in their assessment at the time—an argument that is all but impossible for counsel to adduce in a reasoned fashion?

Let us consider the amendment. Suppose that the man in the dock is a person with a mental disorder or learning disability. Need I say more? Is that not enough to support the amendment?

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