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Lord Falconer of Thoroton moved Amendment No. 24:

On Question, amendment agreed to.

Clause 5 [Sexual assault]:

[Amendments Nos. 25 to 32 not moved.]

Clause 6 [Sexual assault of a child under 13]:

Lord Falconer of Thoroton moved Amendment No. 33:

    Transpose Clause 6 to after Clause 7.

On Question, amendment agreed to.

Clause 7 [Causing a person to engage in sexual activity without consent]:

[Amendments Nos. 34 to 41 not moved.]

Clause 8 [Causing a child under 13 to engage in sexual activity]:

Lord Falconer of Thoroton moved Amendment No. 42:

    Page 4, line 18, after "causes" insert "or incites"

On Question, amendment agreed to.

[Amendments Nos. 43 and 44 not moved.]

Lord Falconer of Thoroton moved Amendment No. 45:

    Page 4, line 25, after "caused" insert "or incited"

On Question, amendment agreed to.

Clause 9 [Sexual activity with a child]:

Lord Falconer of Thoroton moved Amendment No. 46:

    Page 4, line 36, leave out paragraph (c).

The noble and learned Lord said: My Lords, the offences in Clauses 9 and 10 relate ostensibly to consensual activity with a child aged under 16. Our policy is that children under 13 cannot consent to sexual activity in any circumstances. Therefore, where the child was under 13 we would expect charges to be brought under one of the specific child under 13 offences.

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Following the deletion of Clause 76 of the introductory print (which made specific provisions relating to the offences to be charged where the child was under 13) the wording of Clauses 9 and 10 has been amended. They provide that the prosecution must prove that the defendant did not reasonably believe that the victim was 16 or over at the time of the sexual activity. Now that the clauses may apply where the victim was under 13, the amendment made in Committee at paragraph (d) provides that where the child was under 13 at the time of the alleged offence, the mistaken belief in age provisions do not apply.

The new paragraph (d) that was agreed to in Committee makes paragraph (c) (which provides that the victim must be under 16) redundant. The Government amendments are purely a tidying-up exercise to remove the redundant paragraph (c) from each clause. I beg to move.

On Question, amendment agreed to.

Clause 10 [Causing a child to engage in sexual activity]:

Lord Falconer of Thoroton moved Amendment No. 47:

    Page 5, line 3, after "causes" insert "or incites"

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 48:

    Page 5, line 5, leave out paragraph (c).

On Question, amendment agreed to.

Baroness Noakes moved Amendment No. 49:

    Page 5, line 11, after "indictment" insert—

"(a) where subsection (3) applies, to imprisonment for life;
(b) in any other case"

The noble Baroness said: My Lords, in moving Amendment No. 49, I shall speak also to Amendments Nos. 50, 54 and 55 in the group. Amendments Nos. 49 and 50 amend the sentencing provisions of Clause 10, which now covers both causing and inciting a child to engage in sexual activity, so that the sentence can be life where penetration of a child under 13 is involved. The amendments align the sentence both with that under Clause 8, which deals exclusively with under-13s, and with that under Clause 33, where a mentally disordered person who lacks capacity to consent is involved.

Would the Minister explain why it is possible for an offence involving a child under 13 to carry a life sentence under Clause 8, but only 14 years under Clause 10? I do not believe that we should create the possibility that an offence involving a child under 13 could be tried where the sentence is the lesser one. That should not be an option open to prosecutors. I hope that the Minister will explain why, given the offences under Clause 8, it is necessary to include under-13s within the ambit of the Clause 10 offence. If I had been more focused when I tabled the amendments I should also have tabled a probing amendment to draw

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attention to a similar disparity between Clauses 6 and 9. As the same point of principle arises, I hope that the Minister will cover that as well.

Amendments Nos. 54 and 55 seek to amend the sentencing provision of Clauses 12 and 13 so that for under-13s the sentence will be aligned with that for mentally-disordered persons who lack capacity to consent under Clauses 35 and 36.

Under Clauses 35 and 36 the offence is always triable on indictment and carries a possible 10-year sentence. Under Clauses 12 and 13 there is an option of summary conviction carrying six months or a fine. We do not think that that is right where under-13s are involved. I believe that the Government's approach to the Bill is that where a child is under 13 the question of consent should not arise. Why is it that a person who cannot consent under Clauses 35 and 36 receives greater protection than a child under Clauses 12 and 13? Why is it possible that an offence involving an under-13 could be tried summarily with its much lower sentence? Our amendments seek to eliminate disparity and ensure that offences involving under-13s are always treated as serious offences. I beg to move.

Baroness Blatch: My Lords, my noble friend's amendment deals with the internal inconsistency of the Bill and the comparisons between the penalty for causing a child to engage in sexual activity and that for causing a person with a mental disorder to do the same thing. I rise not to take issue with my noble friend but simply to take this opportunity to point out that all the child sex offences in Clauses 9 to 13, welcome though they are, are limited in their effect where the victim—the child—will not make a complaint to the police against the perpetrator or will not give evidence.

We know that all too often children are frightened to get involved in a prosecution. The perpetrator may have threatened all kinds of dire consequences or at least have created an air of intimidation. Then there are cases where the child will not give evidence because that child believes that she is in love with the perpetrator. An under-age child may be engaging in frequent sexual intercourse with an older person but if the only source of evidence about the intercourse is the child herself, the police often say that they are powerless to act.

I was written to some weeks ago by my friend Mr Andrew Turner, MP for the Isle of Wight. He had a case in his constituency of an under-aged girl who was sexually involved with two males. Hampshire Constabulary said that no allegation of criminal offences was made by the victim, and in their words where that is not forthcoming the police are limited in the action that can be taken. Even if the parents consent to a medical examination to obtain DNA evidence, if the child refuses to allow police surgeons to examine her there is nothing they can do.

Hampshire Constabulary also provided Mr Turner with a series of similar cases. In autumn 2000, police officers strongly suspected that a 14 year-old girl was having a sexual relationship with a 32 year-old man but the girl was unwilling to be interviewed. She was

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eventually taken into care by social services. Once away from the influence of that man she indicated a willingness to co-operate with the police. However, before she could be interviewed, the man traced her and sent her letters that persuaded her not to say anything. The man was eventually prosecuted for child abduction, to which he pleaded guilty. He admitted that there was a relationship but refused to admit that it was sexual.

In another case, officers investigated cases of unlawful sexual intercourse involving a registered sex offender and several young girls under 16. The girls in that case refused to co-operate with the police and social services, considering themselves, again, to be in love with the offender so an application to obtain a sex offender's order against him failed and the man was prosecuted for abduction. In each case the prosecution was for abduction, not a sexual offence. The reality of what he did was therefore not recognised in the proceedings or the sentence.

More and more legal duties are being placed on parents these days. They are told, for example, that they will be gaoled for not sending their children to school, but there is no corresponding increase in parents' legal powers or, indeed, in the support they can expect from the police and social services when their children become unruly despite their best efforts.

On 16th May this year the Daily Mail reported a case in the area from which I come. It was the case of 15 year-old Vicky Osborne who left home and moved in with 17 year-old Sam Hayes, a lesbian who has served three months for beating up a woman in a row over drugs money. The two freely admit that they sleep together yet the police say that they cannot act because Vicky has made no complaint to them. Astonishingly, when the parents turned to social services for help they were told that there were no grounds to warrant Vicky's forcible removal from Sam's care. Milton Keynes social services stated:

    "There is no evidence to suggest that Vicky is at risk",

albeit that taking that attitude they were condoning illegal behaviour. The age of consent under our law is 16. The older party to this sexual relationship is committing a sexual offence against Vicky, yet social services saw nothing wrong with that situation.

Where a sexual relationship with a minor is being condoned by the local social services, it makes a mockery of the law and cocks a snook at the girl's parents who are trying to do the best for their daughter. In that type of situation, can parents take any comfort from these clauses in the Bill? Are the offences in Clauses 9 to 13 any easier to prosecute than the current offences of unlawful sexual intercourse with a minor and sexual assault? Are any of the later provisions of the Bill, such as the sexual offences prevention orders or the risk of sexual harm orders, likely to be of help in such situations?

I was being opportunist because these issues relate very much to this part of the Bill. Where my noble friend is arguing for consistency I am arguing for effective prosecution and support for parents who are trying to do the best by their children.

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6.45 p.m.

Lord Falconer of Thoroton: My Lords, the amendment moved by the noble Baroness, Lady Noakes, would provide a higher penalty in relation to certain offences and would require the case to be dealt with only at the Crown Court for certain of the child sex offences when the victim is aged under 13.

Amendments Nos. 49 and 50 would introduce a penalty of life rather than 14 years for the offence of causing a child to engage in sexual activity where the activity involves penetration of or by a child aged under 13. We are obviously agreed on the need to ensure that sufficiently heavy penalties are available when sexual offences are committed against children of such an age.

However, as the noble Baroness pointed out—indeed, it is the foundation of her case—Clause 8 is already available for the Crown Prosecution Service to charge in these circumstances and carries precisely the penalties proposed in Amendments Nos. 49 and 50. We think it is important for the CPS to charge the Clause 8 offence rather than the Clause 10 offence where the victim is under 13, so that not only are the higher penalties available, but the defendant, if found guilty, will have on his criminal record the offence of causing a child under 13 to engage in sexual activity.

As regards the provisions which the noble Baroness seeks to amend, it is possible for there to be victims under 13, as is explicitly acknowledged in the clause, but those would be cases where we think that a mistake had been made about the age which became apparent only during the course of the proceedings. We think that in those circumstances, where one is dealing with cases on the margins, the 14-year penalty is sufficient.

Amendments Nos. 54 and 55 propose that cases of engaging in sexual activity in the presence of a child and causing a child to watch sexual activity should be dealt with on indictment only with a maximum penalty of 10 years when the offence involves a child under 13. We equally have no doubt that the offences in question merit the intervention of the criminal law. As I said, in a number of these cases one has to recognise that they involve a range of sexual activity which a person can be forced to watch or caused to watch, ranging from penetration—which plainly would merit the intervention of the Crown Court—right through to what might be, by comparison with penetration, quite minor sexual activity. We think that in those cases, as in any other, the option of summary trial should be retained to allow flexibility in recognition of the range of behaviour involved in the types of offences to which we refer. We do not believe it is right that that option should be taken away from the Crown Prosecution Service.

The noble Baroness, Lady Blatch, described her intervention as somewhat opportunist. With the greatest respect, I have to say that this has absolutely nothing to do with any of the amendments we are discussing. However, we want to make these offences effective and we believe that we have made them more effective in many respects than the existing law in providing proper protection for children. However,

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there will need to be some evidence in every case, although not necessarily the evidence of the victim. There will be causes where evidence can be brought from sources other than the victim—for example, in relation to what was said or recorded by others. We believe that the Bill's provisions are effective and strike the right balance between the need for proper evidence and the need for the proper protection of children.

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