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(1) A defendant may appeal to the Crown Court—
(a) against the making of a foreign travel order;
(b) against the making of an order under section (Foreign travel orders: variations, renewals and discharges), or the refusal to make such an order.
(2) On any such appeal, the Crown Court may make such orders as may be necessary to give effect to its determination of the appeal, and may also make such incidental or consequential orders as appear to it to be just.
(3) Any order made by the Crown Court on an appeal under subsection (1)(a) (other than an order directing that an application be re-heard by a magistrates' court) is for the purposes of section (Foreign travel orders: variations, renewals and discharges) (5) to be treated as if it were an order of the court from which the appeal was brought (and not an order of the Crown Court)."
After Clause 109, insert the following new clause—

(1) A person commits an offence if, without reasonable excuse, he does anything which he is prohibited from doing by a foreign travel order.
(2) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.
(3) Where a person is convicted of an offence under this section, it is not open to the court by or before which he is convicted to make, in respect of the offence, an order for conditional discharge."

On Question, amendments agreed to.

Clause 110 [Risk of sexual harm orders: applications, grounds and effect]:

Lord Falconer of Thoroton moved Amendment No. 458ZH:

On Question, amendment agreed to.

Lord Lucas moved Amendment No. 458A:

    Page 56, line 15, after "(3)" insert "with the intention of obtaining sexual gratification (whether immediately or at some future time)"

The noble Lord said: We have discussed this formulation several times, so I regard this as a probing amendment. I am concerned that Clause 110(3)(b) or (c) seems to cover an activity carried out fairly frequently by newsagents. There is a great deal available in newsagents which might be said to relate to sexual activity, especially if one were to pass a child a magazine from the top shelf. Even the magazines ostensibly aimed at children proper often have a great deal in them of a sexual nature. Indeed, there have been some well publicised children's books which are quite heavily sexual in nature. A newsagent will frequently be giving children things of this nature. I would like to understand where, if that is the coverage of the offence, the defence arises. I beg to move.

Baroness Walmsley: My concern relates to something that we have already discussed—the

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position of people giving sex education, sex advice, or even condoms to young people. The acts described in Clause 110(3) include,

    "giving a child anything that relates to sexual activity or contains a reference to such activity".

That could be a textbook or an informative film. Paragraph (d) refers to,

    "communicating with a child, where any part of the communication is sexual".

Putting the caveat in the amendment that the intention must be obtaining sexual gratification whether immediately or at some future time makes the intention of the person doing this extremely clear and would, I hope, protect people giving legitimate and valuable advice and help to young people. I hope the Minister will be able to accept the amendment or at least clarify that such people are not in danger of being caught by this part of the Bill.

Baroness Blatch: I believe that the noble and learned Lord will be able to satisfy the latter point made by the noble Baroness, Lady Walmsley.

I wish to speak on the theme that I have kept to throughout the Bill, that by amendment we keep putting in the way a higher barrier that must be jumped before someone can be caught. It seems absolutely inconceivable that a chief officer of police would go to court with a case against a person who has on two occasions been guilty of, or has given concern about, the acts set out in subsection (3)(a), (b), (c) or (d), if they were indulging in the sorts of activities that have been mentioned by the noble Baroness. I cannot believe that a court would even entertain the case of a chief constable who said that a teacher had been teaching sex education and was therefore a danger to a child.

My concern is always in these matters that we should not put barriers in the way of catching someone who actually is inciting children to watch a person engaging in sexual activity, or is giving a child anything that relates to sexual activity or contains reference to such activity, or is simply talking dirty to a child and who has no authority for doing such a thing.

I would put my trust in chief police officers going to court, as there are two locks on the matter. The chief of police has to have a concern and must produce evidence. He must make a case, and then the courts will hear the case and test the evidence and either agree or disagree that the order should be made.

I do not agree with the amendments, as they make it more difficult to catch the very people whom we are discussing. Protection of children against such activities is paramount.

Baroness Walmsley: Before the Minister replies, I ask the Committee to cast its mind back to an earlier stage in the Bill when we were discussing agencies other than teachers—voluntary agencies—with legitimate workers who work in a much less formal environment than that of a school. They are legitimate all the same; they are fully trained and they are effective because they go out into the environments in which young people "hang

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out", as they put it, such as nightclubs. They provide condoms, for example, which helps with the sexual health of young people. I remain concerned that those people might fall foul of an over-zealous chief police officer, and would be grateful for some words of comfort for such agencies.

Baroness Blatch: I am going to stand by what I said. It is really inconceivable that a chief police officer could go with such a case, but even so there would have to be a great deal of collusion between a chief of police and all those testing the evidence and listening to the case for there to be such concern against someone. Frankly, if someone—a third party, for example—is up to no good, I believe that the chief of police should be free to make a judgment about that and to take his case to the courts to be heard.

Baroness Noakes: We discussed Amendment No. 459 in connection with the amendments relating to sexual education generally, so we are not debating that matter at this point. However, I was unconvinced at the time by the response of the noble and learned Lord the Minister, which was broadly along the lines of what my noble friend Lady Blatch said, that a case would simply not be pursued if it involved genuine sex education.

There will be genuine concern out there that people may feel that they fall technically within the provisions of the clause, and feel at risk from an over-zealous police officer seeking to obtain an order. I support the noble Baroness, Lady Walmsley.

1.30 a.m.

Lord Falconer of Thoroton: I hope that I can satisfy the noble Baroness, Lady Walmsley, but I think broadly that what the noble Baroness, Lady Blatch, is saying is correct, although the matter goes slightly further. The noble Baroness, Lady Walmsley, tabled the amendment to ensure that orders are not granted where the person against whom the order is sought had a perfectly legitimate reason for engaging in sexually explicit conduct or communication with a child. That is a worry that we have specifically identified in other parts of the Bill, as the noble Baronesses, Lady Noakes and Lady Walmsley have mentioned.

It is not just a question, as the noble Baroness, LadyBlatch, said, of trusting the police, because the orders can be made against someone with no prior conviction for a sexual offence, but only if two key tests are met. The first, and perhaps the one that gives rise to the understandable problem, is that the court must be satisfied that on at least two occasions the defendant has carried out an act as specified at subsection (3) involving sexually explicit conduct or communication. The noble Baroness, Lady Walmsley, is right—the requirement could in theory catch the sex education teacher or biology teacher at a school showing children diagrams or models of reproduction. However, I wish to make clear that that requirement being satisfied does not legally allow the court to make the order, because a second requirement is explicitly required by the Bill. The second test provides the safeguard that ensures that such people will not be

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caught. That is that the court must be satisfied that such an order is necessary to protect a child or children from harm from the defendant. So it is not just a question of trusting the chief police officer, although I agree with the noble Baroness, Lady Blatch, that it is extraordinarily unlikely that that police officer is going to apply for an order, not just because it is a mistaken judgment, but because he will not obtain an order as there is the second requirement as well.

When a court decides that an adult does not pose a risk to a child or children, even where they might have engaged in sexually explicit conduct or communication, a risk of sexual harm order cannot be made. Moreover, the purpose of the provisions is to provide better protection for children from sexually explicit conduct or communication which poses them a risk of harm. We are far less concerned with the motivation of the defendant than with the effect of his behaviour on the child concerned. If someone acts in one of the ways specified because they are being paid by a third party to familiarise the children with sexual matters so that they may think sexual abuse is normal, we want that behaviour still to be caught, although the defendant's motives are financial. They would not be caught as a result of the amendment. The effect on the children is the same, regardless of the motive.

Even where the defendant in such a case may not ultimately pose a risk of himself causing the child physical harm, such behaviour may well be causing the child psychological harm. When somebody distortedly believes that young people should know about sexuality in all its forms and shows them a variety of material displaying, for example, sado-masochistic activity, we would want children to be protected from a repetition of that behaviour regardless of whether the defendant can be proven to derive sexual gratification from it. So one would end up with the wrong conclusion. I hope that I have reassured the noble Baroness, Lady Walmsley, that the legitimate examples that she and I have given are not intended to, nor could they be, caught.

The noble Lord, Lord Lucas, referred to the newsagent selling pornography to children. Could it fall within,

    "communicating with a child, where any part of the communication is sexual",


    "giving a child anything that relates to sexual activity or contains a reference to such activity."?

It possibly could in relation to paragraph (c), but very rarely, I would have thought. There might be circumstances in which providing pornography to a child for the purpose of familiarising him with sexual activity with a view to making him vulnerable to sexual abuse could form the basis of such an order—but only if the court took the view that there was a risk of harm in accordance with the Bill. I do not think remotely

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that it would catch the newsagent. I hope that I have put at rest the minds of both noble Lords who have raised concerns on the matter.

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