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Lord Campbell of Alloway: I support the amendment. I shall be very brief. If one takes the pornography branch, what does "gain" mean? It can mean two things. It can mean financial benefit or it can mean a form of sexual gratification. As it stands, that appears to be quite unnecessary. The evil that the clause is supposed to prevent would be better dealt with if the amendment were accepted.
Lord Hylton: The noble Baroness, Lady Noakes, made a good point. If the noble and learned Lord the Minister consults the Metropolitan Police and other police forces, he will find that they will tell him that having to prove gain will mean fewer convictions. While I am on my feet, I put down the marker that we shall return to the subject of gain when we reach the clauses on trafficking.
Baroness Howarth of Breckland: I support the amendment. It is another illustration of the confusion between abuse and prostitution, particularly in relation to young people. If one is seeking to prove prostitutionI speak having worked in the adult field and dealt with sex lines and other issues, and I know a great deal about the law about gain in relation to prostitutionI understand why the provision is written in that way from the point of view of the law. However, if one considers the matter from the point of view of trying to protect children, all of this is child abuse. All of Clause 55 relates to children in abusive situations. That is why I am so concerned about the drafting of the Bill in this way.
Baroness Blatch: I, too, support my noble friend's amendment and what was said by the noble Baroness, Lady Howarth. The amendment is an improvement on the offences involving prostitution and child pornographyit would remove the requirement on the prosecution to prove that the perpetrator or third party had gained financially. I hesitate in saying "gain financially", because my noble friend Lord Campbell of Alloway raised the issue of the definition of "gain". What is "gain"? Proving expectation of gain might also be an onerous burden for the prosecution. It could require forensic accounting evidence or access to papers carefully concealed by the defendant.
The requirement to prove that the action was for gain might also provide a bizarre defence. Some defendants may escape conviction by arguing that they committed the offence, not for gain, but for purely sexual gratificationthe point made by my noble friend Lord Campbell of Alloway. Therefore, it is important that "gain" is properly defined.
It would be unjust to leave the clause as it is. That is why I regard it as vital to support my noble friend in this matter. If the noble and learned Lord cannot give us a definition today, it is very important for us properly to understand the ease with which it can be proved, whether for sexual gratification or financial gain. Very seriously abused young people will have no protection in the courts simply because it will be nearly impossible to prove "gain", by whatever means, as it is defined.
Baroness Walmsley: We, on these Benches, are inclined to support the amendment. It is very difficult to define "gain" and to prove the expectation of gain. As the noble Baroness, Lady Howarth, said, it is child abuse, whether or not the perpetrator gains financially or otherwise; therefore, it is a very serious offence. Will the Minister clarify the meaning of "gain" and how it would be interpreted in the courts? It would be very helpful to the Committee.
Lord Lloyd of Berwick: Will the Minister remind us of the existing law on controlling prostitution, and whether the word "gain" is used in it? I suspect that it has been used without any difficulty since the previous century.
Lord Falconer of Thoroton: This is an important and difficult amendment that raises a point that we need to consider very carefully. As the noble Lord, Lord Hylton, said from the Cross Benches, we will come to the matter again in relation to trafficking. We have decided to delete the reference to "gain" from the provision on trafficking. If we are going to retain the reference in this clause, we will need a reason for that difference.
I shall set out the position and undertake to return on Report with a more detailed one. I do not want to give rise to any expectations, but it is a very difficult issue. The definition of "gain" used in these clauses is found at Clause 60(3). It is wide enough to capture, not just those who receive direct financial gain through their activities relating to the sexual exploitation of others, but also those who receive drugs or who are allowed to miss a debt payment, for example, in return for their deeds. It covers benefits that may or may not materialise. It also covers situations where the gain is not for the offender but for a third person. It is very wide.
Lord Falconer of Thoroton: May I finish my remarks and then return to the noble Lord's point? We do not want to cover people who are not engaged in exploitative relationships, but who may, for example, be attempting to help someone or to act in their best interests.
I shall give two examples of that. The first is the potential case of a mother whose 16 year-old daughter is working as a prostitute. She has tried to dissuade her from doing so, but without success. Fearful for her daughter's safety and unable to stop her from selling sexual services, the mother provides a room or flat in which her daughter can work. In that way, the mother can at least feel that she has provided an added element of safety for her daughter. If the requirement of "gain" were removed from that situation, the mother could be charged with facilitating the prostitution of a child. I do not think that Committee Members would regard that as particularly desirable.
Research carried out by ECPAT showed that many young people involved in prostitution felt unable to exit prostitution until they had found someone supportive to turn to, or somewhere safe to go. We would have thought it inappropriate to criminalise those, such as the mother in the example that I gave, who try to make things better or safer for such children, for no gain, until the child feels able to exit prostitution.
When considering adult prostitution, which is not illegal, removing "gain" from the scope of the offences would mean that where, for example, a prostitute encouraged her friend to become a prostitute for whatever reason, and she stood to gain nothing from that encouragement, she would commit a criminal act. That applies to the adult situation. We think that that would probably be excessive.
The word "gain" is included because of that situation and others mentioned earlier, which involve people genuinely trying to help someone. I see the force of the arguments on the other side. A difficult balance must be struck. In response to the noble and learned Lord, Lord Lloyd of Berwick, yes, the requirement of "gain" is part of the make-up of the offence under current law. I am not aware that that causes difficulty, but I have not asked about it. No doubt, the noble and learned Lord, sitting as a judge, has had some experience in that respect. We must reflect very carefully on what is said to see whether our approach is consistent with our decision to delete the word "gain" from the provisions on trafficking.
Baroness Howarth of Breckland: Without wishing to disagree with the noble and learned Lord, Lord Lloyd, who I always admire and listen to, the situation with adults is significantly different. I have no issue with adult gain. I am familiar with that in other areas. I simply hope that we can find another vehicle to ensure
Lord Falconer of Thoroton: I am sympathetic to that approach. The amendments suggest that we capture organisations and parents who, by helping someone out of the exploitation to which the noble Baroness refers, commit offences. I do not believe that that is the noble Baroness's intention. We seek to wrestle with that problem.
Lord Campbell of Alloway: Does not the noble and learned Lord's reference to "gain" in Clause 60(3) as defined make the point that I was trying to make? We are really concerned with abuse, not with a definition of "gain". The definition of "gain", which applies to Clauses 55 to 59, is restrictive. Why should we have a restrictive definition if the concern is to inhibit abuse? Does that not make my point?
Baroness Blatch: I am pleased to hear that the Minister will reflect on what has been said. That is always very welcome. I was corrected by my noble friend on the Front Bench to the effect that "gain" is defined in the Bill. It is financial, or, in colloquial English, what appears to me as payment in kind; for example, remitting a payment or some such measure. But I agree with my noble friend Lord Campbell of Alloway. Under the clause as it stands, someone who abuses a young person for sexual gratification would walk free from court. The noble and learned Lord sounds as though he is in a very receptive mood to consider the amendment. I accepted that without prejudice to the outcome of his deliberations before the next stage of the Bill. But I ask him to reflect on what he has said.
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