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Lord Lucas: I come at the offence from the same point of view. Why have the Government phrased the clause in this way? Is the offence something which happens often? How many prosecutions are there for that sort of thing? How many incidents are there in any given year? Is it something that is frequent enough to

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merit a separate offence? There are many things that one can do to dishonour a corpse. There was an incident recently when someone put a bacon sandwich into the mouth of a dead Muslim woman, which strikes me as a pretty ghastly thing to do. Surely we do not need to make that a separate offence. There are many ways in which one can mutilate and dishonour a corpse. I do not know which statute it is that they would be caught under. Why do we need a separate offence for something that is probably extremely rare, particularly given the fairly rare opportunities in our current society to commit that sort of offence? I should be grateful for the Minister's enlightenment.

Lord Falconer of Thoroton: There is currently no law that covers sexual penetration of a dead human body or part of it. That is a surprising omission from the criminal law, since it represents a violation of the respect that ought to be shown to human remains. When such behaviour comes to light it is profoundly distressing for the family of the dead person. Existing legislation covers exhuming a dead body without lawful authority, but there is no other protection for the body of the person once he or she is dead. Setting the Boundaries has anecdotal evidence that sexual penetration of dead bodies takes place, albeit in rare and unusual circumstances. It is impossible to quantify the extent of the behaviour, but that is not surprising when the law is silent on the issue. There is, however, no indication that it is anything other than extremely rare. As part of a comprehensive review of sex offences it is important for society to make clear which sexual behaviour is so profoundly deviant as to justify the intervention of the criminal law. The offence could be charged in relation to those who kill their victim and then sexually penetrate the corpse in addition to a charge of murder or manslaughter. It could also be charged against those who have had no role in the death of the individual but subsequently sexually penetrate the corpse.

Clause 73 agreed to.

Clause 74 [Sexual activity in public]:

The Deputy Chairman of Committees: Before I call Amendment No. 355, I should point out that in the group are Amendments Nos. 359 and 360. I have to advise the Committee that if Amendment No. 359 were agreed to, I would not be able to call Amendment No. 360.

Baroness Noakes moved Amendment No. 355:

    Page 33, line 26, at end insert—

"( ) A person commits an offence if—
(a) he is in a public lavatory,
(b) he intentionally engages in an activity within subsection (3), and
(c) the activity is sexual."

The noble Baroness said: The amendment concerns the issue of sex in public. We debated the issue extensively at Second Reading and many who spoke found defects in Clause 74. The Government have now said that they intend to withdraw the clause. To that

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end the Minister has added his name to the objection to the clause standing part, which is included in the group of amendments.

There is no doubt that Clause 74 is a bad piece of draft law, which is why we propose major amendments to it. I shall not weary the Committee with a detailed exposition of those amendments, but I should like to outline some concerns that are not necessarily eliminated by removing the clause and relying on existing Public Order Act offences and common law offences.

I believe that we share with the Government the desire to ensure that the law proscribes acts that have an impact on the public and are considered by the public to be unacceptable. The Minister will be aware that the comments made by his ministerial colleague in another place, Mr Hilary Benn, led many to believe that this was not the principle which guided the Government. Many believed that the Bill gave a green light to sexual activity in public lavatories provided it was not seen.

I believe that my Amendment No. 355 captures a general public sentiment which is that public lavatories are not places for sexual activity. If we say anything less than this, we imply that there are circumstances in which sexual activity in a public lavatory is acceptable. If there is anything less than a total prohibition, we run the risk of making public lavatories no-go areas for the general public and in particular for children. There are already instances of public lavatories being no-go areas or having to be closed because the existing law, which is not an absolute and explicit ban, is either not good enough or not enforced. Simply removing Clause 74 will do nothing to improve the situation.

The Minister's very helpful letter of 15th April notifying his intention to withdraw the clause noted that the existing common law offence of outraging public decency had successfully been used to prosecute cases of sexual activity in public lavatories. The Court of Appeal case of Mayling, which the Minister cited, established that sexual activity in a public lavatory could be an act which outraged public decency, but the activity had to be seen to be within the offence. The judgment stated that,

    "it is, in the view of this court, clear that more than one person must at least have been able to see the act complained of if the charge is to be made out".

So there are two problems with the common law offence. First, sexual activity has to be seen. Secondly, two or more people must have been able to see it. For my part I am not convinced that that is a sound basis on which to leave the issue of sex in public lavatories. The current law is not adequate. In any event, it is not enforced so as to prevent public lavatories becoming no-go areas. That is why we need an absolutely clear prohibition in the law. I shall listen very carefully to what the Minister has to say about Clause 74. I welcome the fact that the Government have thought

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again about the subject, but I am not yet convinced that they have come up with the right answer. I beg to move.

Baroness Blatch: This is one occasion when I am absolutely at one with my noble friend. I believe that the Government's U-turn will leave a serious lacuna in the Bill, which in my view needs to be filled.

The Government appear no longer to believe that there should be a specific offence of sexual activity in public. During the Easter Recess, it was announced to the press that Clause 74 was to be dropped and replaced with an amendment to the Criminal Justice Bill currently before another place. The amendment will make it possible to prosecute, in a magistrates' court, the offence of outraging public decency. Currently the offence can be tried only in a Crown Court, and thus it is meant to deal with the problem of sexual activity in public. One newspaper report also suggests that the public order offence of behaviour likely to cause a breach of the peace could also be used to deal with the problem. If this truly is the full extent of the Government's proposals in this important area of protecting the public, as my noble friend said, they have many serious questions to answer.

On Second Reading, the noble and learned Lord, Lord Falconer, introduced Clause 74 by saying:

    "The offence will send out a strong signal of our intention to protect people from being the unwilling witnesses to overtly sexual behaviour in public that most people consider should take place in their own homes".—[Official Report, 13/2/03; col. 775.]

What has happened to the Government's strong signal? Although Clause 74 did raise various anomalies, I believe that the Government's general intention was right. Sexual activity in public is a real problem. In particular, as I shall show in a moment, there is a real problem with public toilets. The problem requires a specific statutory offence to tackle it. Instead the Government now propose to drop Clause 74 and fall back on the long-standing common law offence of outraging public decency. The common law offence is weak and difficult to prove. I shall outline the evidence of that later.

If it is true that the public order offence of behaviour likely to cause a breach of the peace is being proffered as a solution, that, too, inspires little confidence. According to the case summary, the 1982 case of Parkin v Norman found that,

    "Offensive or disgusting behaviour by a homosexual in a public lavatory does not amount to 'threatening, abusive or insulting . . . behaviour . . . whereby a breach of the peace is likely to be occasioned' under Section 5 of the Public Order Act 1936".

I am not a lawyer, but it seems pretty clear to me that the public order offence provides no protection against sex in public toilets. I should be grateful to know whether the Minister really believes that we can rely on the public order offence to prevent sexual acts in public toilets.

In the absence of Clause 74, the weakness of the provisions on which the Government now claim to be relying is of especially great importance. This is because this Bill is repealing the law of gross indecency. Gross indecency will be removed from our statute book and nothing is to be put in its place. Gross indecency currently outlaws homosexual male activity in public

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toilets and elsewhere in public. It specifically addresses public toilets because this has been a serious public problem for decades.

In February this year, a five-day police operation targeting lavatories at Baker Street Station led to 34 men being cautioned for gross indecency. In January, Guisborough Police in North Yorkshire were forced to launch Operation Newton to patrol public toilets in their area.

The police said:

    "The toilets have become a meeting den for gay and bi-sexual men, and the problem has escalated to such an extent that on occasions, cleaning staff cannot gain access to clean and close up the premises at night, due to the number of men 'using' them".

The Yorkshire Post reported in October last year that Barnsley Council was forced to close a village's public toilets. According to the paper:

    "Shocked Cawthorne residents had called for the toilets to be completely flattened after learning the block has appeared on a website advising men of the best places in England for 'cottaging'—casual homosexual sex in public toilets".

I have reports of similar problems in the toilets of Blackburn railway station and those of Aberdeen Central Library. The local press in Staffordshire have reported internet sites advertising public places across the county as venues for homosexual activity. All this proves that there is a great problem that needs to be addressed.

Although rare, there are also cases of heterosexual activity in public toilets. The case of R v Helen Georgina Waring in 2001 concerned an act of sexual intercourse with a man in a night club toilet cubicle.

We need a clear and effective law to tackle an identifiable problem. We need a specific offence that criminalises any type of sexual activity—heterosexual or homosexual—in a public toilet.

It was only in 1967 that gross indecency was specifically framed to outlaw homosexual activity in public toilets. The Government boast about sweeping away Victorian laws, but the specific law against acts in public toilets is less than 40 years old.

In 1967, at the height of the swinging 60s and when Parliament was in the throes of legalising homosexual acts in private, it was felt necessary to make clear that "private" did not include, according to Section 1(2)(b) of the Sexual Offences Act 1967,

    "a lavatory to which the public have or are permitted to have access".

The then Home Secretary, the late Lord Jenkins of Hillhead, noted during the passage of that Bill:

    "the view was taken in another place that there should be included this special provision relating to public lavatories, which is obviously a social feature of homosexuality as opposed to the heterosexual act".—[Official Report, Commons, 3/7/67; col. 1453.]

In one of the Bill's earlier incarnations, the Under-Secretary of State at the Home Office, Lord Stonham, explained Section 1(2)(b) of the Act to the House of Lords on 23rd May 1966. He said it was,

    "intended to cover a case where two men committed an act in a locked cubicle and it would clearly be objectionable if those two men were seen to enter the cubicle and their activities, though not seen, might well be thought to offend other persons who might be using the public part of the lavatory".

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Outraging public decency existed as a criminal offence at the time of the 1967 Act. There was much discussion during the passage of the Bill about the offence. Yet it was still felt necessary to introduce specific provision for public lavatories. If outraging public decency had been adequate to tackle the problem of sex in public toilets, Section 1 of the Sexual Offences Act 1967 would have been unnecessary.

Clearly, Parliament at that time believed no other law existed that would suffice. So what has changed? First, the problem has not gone away. The Home Office sex offences review published in 2000 concluded:

    "some public facilities are extensively used for sexual purposes, and the law needs to be able to deal with this problem as part of wider powers to deal with sexual activity in public".

In 2003, surely we still cannot rely on outraging public decency. It is a weak offence that appears to be difficult to prove. According to Home Office figures, 173 persons were proceeded against in England and Wales in 2001 for outraging public decency. Only 34 were found guilty. That is a 20 per cent conviction rate, which I believe is too low compared with many other offences.

We should bear in mind that outraging public decency is a broad offence that is not targeted solely at sexual activity. One of the most famous cases involved a so-called art exhibit that displayed earrings made from human foetuses. The offence could not be said in any way to be designed specifically to cover the sorts of situations that Clause 74 was targeting. It contains a high test. In the leading case of Knuller (Publishing, Printing and Promotions) Ltd v the Director of Public Prosecutions, the noble and learned Lord, Lord Simon of Glaisdale, said:

    "'outrage' was a very strong word and 'outraging public decency' goes considerably beyond offending the susceptibilities of, or even shocking, reasonable people".

The noble and learned Lord went on to say:

    "recognised minimum standards of decency . . . are likely to vary from time to time".

I am very concerned that some courts might regard this as a licence to stretch the bounds of acceptability. I have no doubt that there are defence lawyers who will willingly argue that moderate sexual activity in a public place is less likely to offend now than it was 20 or 30 years ago and so should not be regarded as outraging public decency.

Even if a conviction is secured, the offence appears to attract low sentences. Of the 34 people convicted of outraging public decency in 2001, only six were sentenced to immediate custody. Nineteen were given a community punishment order, two were fined and five were absolutely or conditionally discharged. Two were dealt with otherwise. There was an infamous example of a serious case that attracted a trivial penalty in 1998. A couple had full sexual intercourse on the bonnet of a car in the short-term car park at Terminal 4 at Heathrow Airport, followed by oral sex at four o'clock in the afternoon, all for the benefit of a film crew making a pornographic video. They were charged and convicted on two counts of outraging public decency and each received a conditional

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discharge for 18 months. There was evidence that around 6,000 cars a day passed through that car park. Several members of staff at the airport witnessed the offence and gave evidence that they thought that the behaviour was outrageous. Yet, the perpetrators walked away without so much as a fine.

An infamous 1992 case of sex in public seems to demonstrate the lack of confidence that prosecutors have in the concept of outraging public decency. A couple engaged in oral sex on a train packed with families and then, half-dressed, performed full sexual intercourse. A mother with her children complained, as did other people on the train. According to newspaper reports, the couple appeared before magistrates. Outraging public decency is an indictable offence, so whatever they were prosecuted for, it was not that. They received a paltry fine of 50 and 25 costs.

The Government protest that they are strengthening the treatment of the offence by allowing it to be tried in a magistrates' court. That case does not encourage one to believe that that will help. In any event, magistrates will have the same difficulty with proving the offence as the higher courts had. Nor will they feel able to ignore the sentencing precedents set by the higher courts. There needs to be a straightforward offence, like gross indecency, that applies specifically to toilets. Gross indecency simply requires proof that the act took place in a toilet. Outraging public decency demands proof that the act gave rise to outrage, a potentially difficult hurdle to overcome in any case.

Another peculiar weakness is the requirement for proof that the act complained of must have been capable of being seen by at least two members of the public. That was confirmed in the 1995 case of R v Walker. Prosecutors relied on the offence in prosecuting a man who masturbated in his living room in front of a 10 year-old girl. The Court of Appeal overturned his conviction, stating that the offence carried a requirement that,

    "the offence be committed in a place where there exists a real possibility that members of the general public might witness what happens".

In our Second Reading debate on Clause 74, some noble Lords caused great mirth by talking about amorous activities on mountainsides, in back gardens and so on. The Government's U-turn on Clause 74 seems designed to rescue it from such attacks. The greatest anomaly of all was caused by the cubicle door of a public toilet. The great question was whether an offence would have been committed under Clause 74, if the door were closed or only if it were open. The Government's new policy continues to overlook the issue of the cubicle door. The greatest anomaly may well remain.

A Home Office spokeswoman said:

    "It always has been and will remain illegal to have sex in a public toilet—regardless of whether the door is open or closed".

Can the Minister tell us why his officials are so confident about that, in spite of the evidence that I rehearsed today? Can the Minister explain how there

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could be two witnesses, if the cubicle door were closed? Even if the police have largely discounted the use of the offence of outraging public decency against sexual activity in public toilets, the Metropolitan Police's response to the Sexual Offences Bill called for sex in a cubicle of a public toilet to remain illegal. It did not even mention the possibility of falling back on outraging public decency.

On several occasions in Committee the Government have amended this Bill for the better. However, on the issue before us now they are not only failing to correct a weakness in their proposals but are actually making a situation worse. Unless the Minister can satisfy us otherwise, it seems that this Bill will leave a serious gap in the law as regards sexual activity in public. I regard the matter very seriously, as Members of the Committee will have gathered. I hope that we return to it at Report stage and that my noble friend's amendment receives some support.

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