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Baroness Gibson of Market Rasen: I am not a lawyer, but I rise to speak because I am rather bothered about the way this debate is going. Some of the examples that have been cited surely would be covered by public decency legislation, which I assume will not be altered by these amendments. I am a little perturbed, therefore, that we are seeking to bring in arguments that will not be covered by this Act but are already covered by public decency legislation.
Lord Campbell of Alloway: I respectfully ask the noble and learned Lord whether, without commitment, he will give serious consideration to the reservations expressed in this group of amendments. Put simply, this is a sexual offences Bill. Clause 70 has nothing to do with sex. There is no sexual intention. There is nothing in the clause to involve criminal intent. With respect, the clause is a bit of a dog's dinner to find in a Bill such as this. Surely, if all that the provision as drafted means, without any qualification by these amendments, is ridiculous, unacceptable conduct, it is already covered by extant law. If I am wrong, will the noble and learned Lord correct me?
Lord Falconer of Thoroton: With respect, I think that the noble Lord, Lord Skelmersdale, is wrong in regard to the clause. I think that we have got the balance about right. First, we are removing the recklessness requirement, so that the naturist will be guilty of an offence only if he knew or intended that what he did would cause alarm or distress. It will not be an offence because he knowsbecause he has no doubt read about the opinion poll referred to by the noble Baroness, Lady Noakesthat there is a proportion of the population who, to use the phrasing of the opinion poll, find such actions disgusting. That would not, as a matter of law, make it a criminal offence, because he would not know in the circumstances that "alarm or distress" would be causedwhich is the wording of the offence. "Recklessness" is about a risk. Knowing or intending that alarm will be caused is about actually knowing the facts.
So far as concerns the example given by the noble Lord, Lord Campbell of Allowaynamely, if someone in the circumstances posited does what he described entirely because the necessary call of nature required it, without intending to cause alarm or distresscontrary to what the noble Lord says, the person would not know that alarm or distress would be caused. That would be not caught either. So I think that we have covered the two situations that noble Lords have raised in relation to the alleged problem in our draft. That is why we have done it in this way. We take out the dwelling-house exception, because we have removed recklessness; so we support Amendment No. 349. My name has not been added to the amendment, although that was my intention because it follows what we are trying to do. The amendment removes subsection (2).
Amendments Nos. 344 and 346 seek to make the offence apply only where the exposure is sexual or the motivation is one of sexual gratification. The noble Lord, Lord Campbell of Alloway, supports that because he says that this is a sexual offences Bill. We oppose it for the following reasons. Of course, where exposure is deliberately done manifestly for sexual gratification, that will be potentially enormously distressing and will cause alarm or distress to the victim. So it is plainly covered already. But there is no doubt that exposure that has as its purpose to alarm or distress can be no less frightening, irrespective of whether there is no explicitly sexual motive behind the action. It is not impossible to recognise and imagine that there are cases where the purpose of the act is to frighten and terrify with no sexual motive. It is that kind of occasion that I believe all noble Lords would wish to cover. What they would not wish to be the result of the proposed amendment is a difficult debate
The noble Lord, Lord Campbell of Alloway, asks what happens if it is not sexual motivation, given that this is a sexual offences Bill. It is ridiculous in terms of the law to chop this provision and put it in one place because there is a sexual motivation and in another where there is no such motivation. One has to be sensible about the way in which one creates offences.
Lord Skelmersdale: I cannot let the noble and learned Lord get away with that. He defended the Government's stance on the Bill on the previous day in Committee, when we referred to trafficking for labour. He agreed with me that it would impugn the purity of the sexual piece of the Sexual Offences Bill.
Lord Falconer of Thoroton: With respect, what we are talking about here in relation to exposure is the alarm and distress that is caused to people. It has plainly, if one looks at it in laymen's terms, a sexual element. What we are talking about, however, is the definition of the offence. If the noble Lord is seriously suggesting that one puts in sexual gratification as a necessary requirement of the Bill, with great respect to him I think that he is failing to catch what may be a very serious element of exposure and, as it were, leaving in only the matters that might otherwise be described as less important.
Baroness Blatch: I take what the noble and learned Lord says, but will he accept, as I accept, that the amendments provide a number of defences for someone who is offensive and is causing great alarm and distressand it may be almost impossible to prove that it was for sexual gratification; nevertheless, the severity of the alarm and distress is very real?
Lord Falconer of Thoroton: In the circumstances I am positing, where there is exposure which causes alarm and distress and in the threatening manner I have described, of course the court must look to see what the intention waswhether it was inadvertent or notbut I should have thought that on the facts posited it would not be difficult, assuming that those facts were proved, for the court to come to the obvious conclusion that it was done with the intention of causing alarm or distress.
In every case there will obviously be difficulties about identifying precisely what proof is requiredI do not mean in relation to each individual case, but as regards every offence there will always be circumstances in which a defence can be run. But if it is clear that what this provision is designed to catch is people who knowingly seek to cause alarm or distress
The noble Lord, Lord Lucas, suggests in one of his amendments that the provision should be restricted to a public place. With respect, we disagree. Think of the circumstance where someone comes into your house for some legitimate reason and then deliberately exposes himself to you. We have got rid of the problem about the casual guest by getting rid of subsection (2), but I can imagine terrifying circumstances in which, within a housewhich is not a public placethis is a way of threatening or frightening someone. So, again, understanding the perfectly reasonable motive behind the amendment, we do not think that it is appropriate.
Finally, do we intend to catch the streaker? No, we do not. Do we intend to catch the naturist? No, we do not. Are we creating a nudist's charter? No, we are not. We are simply saying that being a naturist is not of itself a criminal offence.
Lord Lucas: I am much comforted by the noble and learned Lord's remarks, but will he clarify one point? If I were to drive at speed down the wrong side of a motorway, might I reasonably say that I did not know that I would cause an accident? In other words, in order to show that someone knows something, it must be shown that that person has actual knowledge, rather than just that he or she ought to have known that an action was likely to cause an accident. The wording is quite strong in that context. A great many of our fears can be dealt with by saying that he did not actually know rather than that it ought to have been obvious to him.
The other thing that might comfort my noble friend Lady Blatch is that if the noble Baroness, Lady Walmsley, is right about the number of naturists in this country, there ought to be 10 of them in this House. One wonders who they are.
Lord Falconer of Thoroton: I am not sure whether that would be of any comfort to the noble Baroness, Lady Blatch, although that might depend on who the 10 were. As for "knows" it means that a person knows that what he is doing will cause alarm or distress.
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