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Lord Hylton: I believe that the Government's intention with regard to Clauses 66 and 67 is good, but how will the intentions of the offender be discovered unless he admits it? For instance, trespass or breaking-in could be done for the purpose of burglary, although someone inside the premises could be a potential victim of a sexual offence. The matter is a little unclear.

Lord Falconer of Thoroton: It would be impossible for me to identify in every case how the intention has to be proved; but proved it must be. It could be proved, for example, by confession, by conversations with third parties before the event or by the equipment that the defendant brings with him. It could be proved in a whole variety of ways. It would be wrong for me to commit myself to that. It is not uncommon in the law that a particular intention has to be proved. It will depend upon the facts in every case. It must be proved beyond a reasonable doubt. But there needs to be evidence.

Lord Astor of Hever: As the noble and learned Lord says, this was a probing amendment. We did not intend it to be restrictive. I think this has been a useful debate. I am grateful to the Minister for his detailed clarification of the Government's thinking behind Clause 66. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 333 not moved.]

Clause 66 agreed to.

Clause 67 [Trespass with intent to commit a sexual offence]:

Lord Falconer of Thoroton moved Amendment No. 333A:

"(1) A person commits an offence if—
(a) he is a trespasser on any premises,
(b) he intends to commit a relevant sexual offence on the premises, and
(c) he knows that, or is reckless as to whether, he is a trespasser."

The noble and learned Lord said: As I have indicated, our policy on the offence of trespass with intent to commit a sexual offence has always been that anyone who trespasses with the intention of committing a sexual offence in the place where he is a trespasser should be guilty of a sexual offence. That has not changed.

Amendments Nos. 333A and 333B, which are both government amendments, are designed to make sure that the wording of the offence at Clause 67 gives effect to that policy objective.

As currently drafted, the offence places a focus on the point in time when someone technically becomes a trespasser on the land where he intends to commit the sexual offence. That means that the prosecution would

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be required to prove that the defendant intended to commit a sexual offence at the point in time when he enters the structure or land as a trespasser.

We think that that could lead to arguments in court about the concept of entry and the point in time when it occurs. Proving that the defendant had a sexual intent at the specific point of entry as a trespasser would create unintended difficulties for the prosecution and could make it difficult to secure any convictions.

The other possible problem with the current version of Clause 67 is that it does not make it clear that the person who trespasses must have an intention to commit a sexual offence in the place where he is trespassing.

Our amendments will remedy both problems. The offence will be committed where the person is a trespasser, on land or in a structure or part of a structure, and knows or is reckless as to whether he is a trespasser, and at some point in time while so trespassing, he has the intention to commit a sexual offence in that place. I beg to move.

6.45 p.m.

Lord Skelmersdale: To a great extent, I found the original Bill a great deal clearer. In describing the effect of Amendments Nos. 333A and 333B , the noble and learned Lord suddenly talked about land. I am no lawyer, but does "premises" include a garden?

Lord Falconer of Thoroton: Yes.

Lord Lucas: Again, to clarify for non-lawyers, does the need to separate "premises" from "land" in this way result in something that is universal? In other words, there is nowhere that a person can go that he cannot commit this offence, unless he happens to own or have a right of entry to that particular premises or land? In other words, if a farmer is wandering on his own land and then sticks his nose in someone else's tent, is he a trespasser in that tent?

How do the two interlock? Why do we have to define "premises" in this way? I am sure that this results from my ignorance of how the law of trespass works. Are we leaving something out? Is there an intentional leaving out of some part of the world that would not be covered by either "premises" or "land"? Is there something in which a person might find himself which would not be either? If one is faced with a structure which is on land, to which one has a right of access—but the structure does not belong to one, as would be the case with a temporary structure—is one a trespasser if one enters that structure?

Lord Falconer of Thoroton: Noble Lords are perhaps overcomplicating the matter. "Premises" means going on to someone's land or buildings without permission. Going into someone's car is not going into someone's "premises". I do not think that going into someone's tent on one's own land counts as "premises". However, I shall write and confirm that. We have set out the matter clearly in the Bill. There is nothing

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hidden, difficult or complicated about it. It is plainly intended to mean that if one goes on someone's land or into someone's building without permission, and the other elements are fulfilled, that is the offence we are trying to identify.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 333B:

    Page 30, line 29, at end insert—

""premises" includes a structure or part of a structure;"

On Question, amendment agreed to.

[Amendment No. 334 not moved.]

Clause 67, as amended, agreed to.

Clause 68 [Sex with an adult relative: penetration]:

[Amendment No. 335 not moved.]

Baroness Walmsley moved Amendment No. 336:

    Page 31, line 11, after "know" insert "and had no reason to believe"

The noble Baroness said: I shall speak also to the other amendments in the group. As my noble friend Lord Thomas of Gresford made clear in earlier amendments, we oppose a double reversal of the burden of proof. For example, in Clause 69 once the ingredients of the offence have been proved by the prosecution the burden shifts to the defendant to prove on a balance of probabilities that he did not know that he and the other party were related. If he succeeds, he may still be convicted if the prosecution then satisfies the jury, so that it is sure that the accused could reasonably have been expected to know. I find that confusing for a jury and dangerous. We adopt the approach of Clauses 33 to 42, where the burden throughout is on the prosecution to prove that the accused did know of the mental disorder or learning disability—or alternatively, that he could have reasonably been expected to know.

The amendment makes the matter simpler to understand and, save in the most exceptional circumstances, would produce the approach that the Government desire—that the knowledge of belief of the defendant must be reasonably based. We are forced to ask again why that approach seems necessary in cases involving sex with a relative. We are not looking for a particularly liberal approach but rather a consistent one. I beg to move.

Baroness Noakes: The principles behind the amendments have been debated many times. I reiterate the support that we have given in the past to the Liberal Democrat amendments. We find the arguments compelling.

Lord Falconer of Thoroton: I will not weary the Committee by repeating the arguments. We say that if the accused says that they did not know the victim was a relative, then the accused must prove it on the balance of probabilities. If the accused does prove it,

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the prosecution must prove that it was unreasonable that the accused did not know. That does not cause much complication.

Lord Lucas: Which way would the verdict have fallen on Oedipus?

Lord Thomas of Gresford: We have debated this matter many times and I have discussed it with practitioners. I have not yet found anybody who considers that the Bill sensibly amends the law. It is confusing and will remain confusing. I hope that the Government will take that into account when we debate the matter again on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 337 and 338 not moved.]

Clause 68 agreed to.

Clause 69 [Sex with an adult relative: consenting to penetration]:

[Amendments Nos. 339 to 342 not moved.]

Clause 69 agreed to.

Clause 70 [Exposure]:

The Deputy Chairman of Committees (Lord Murton of Lindisfarne): I am advised that I must call next Amendment No. 343A.

Lord Falconer of Thoroton moved Amendment No. 343A:

    Page 32, line 1, at end insert "and"

The noble and learned Lord said: The government amendments mean that the clause will cover a person who intentionally exposes his genitals in the knowledge or with the intention that somebody will see them and be alarmed or distressed. Being reckless as to whether alarm or distress will be caused will not be enough. As subsection (2) excluded recklessness with respect to behaviour within a dwelling, except when witnessed by children under 16, it is no longer needed.

A great deal of concern has been expressed, primarily by individual naturists and naturist organisations, that activities currently lawful might be criminalised. Although we believe those concerns to be unfounded, the Government propose to remove the lesser requirement of recklessness. I hope that will assuage such concerns.

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