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Lord Falconer of Thoroton moved Amendment No. 65:

The noble and learned Lord said: My Lords, the amendments in this group are of a minor and technical nature. Amendment No. 65 is necessary for the proper operation of the Bill in Northern Ireland. Amendments Nos. 108, 122 and 127 replace "a" with "another" in Clauses 33, 38 and 43 for the sake of consistency with other clauses.

In Committee I tabled an amendment in relation to the definition of a community home for the purposes of the abuse of trust offence. Amendment No. 141 makes a similar change for the purposes of the care worker offences. I beg to move.

On Question, amendment agreed to.

Baroness Noakes moved Amendment No. 66:

    Page 8, line 5, leave out paragraph (a).

The noble Baroness said: My Lords, Amendment No. 66 seeks to make the offence of meeting a child following sexual grooming an offence which could be tried only on indictment.

We welcome the new offence created by Clause 17 and the Government's decision in Committee to raise the maximum sentence to seven years. The issue raised by the amendment is whether it should be possible for the offence to be tried summarily, thus involving a sentence of only six months or a fine.

When we debated this issue in Committee the noble and learned Lord said that the summary option was to deal with, for example, a 19 year-old talking to a child of 15 years and 11 months. I do not believe that using ages gets to the heart of the issue. A vulnerable 15 year-old is entitled to as much protection as a 12 year-old. As the Minister knows, it is always difficult to know where to draw lines, but having chosen the lines—18 years for the defendant and 16 for the victim—we should stop at that and not choose examples around the margins to justify an approach to penalties.

The offence is a serious one. It is designed to catch sexual predators—both on and offline—who entice their intended victims into situations where sexual offences could be committed. The offence does not entail a sexual activity but it is the nearest thing. If a child is involved in sexual activity under Clauses 9 to 11, there is only a possibility of an indictment. These are serious offences and there is no option of a lesser offence. It is my contention that this approach should be carried over into Clause 17. Making the offence indictable only would encourage the police and the CPS to see this as the very serious offence that it is intended to be and not one which should encompass marginal cases.

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If the Minister is not in favour of removing the possibility of summary conviction from the whole offence, what is his attitude towards children under 13? Should they not be protected by a stronger offence with no soft option of a summary trial? I beg to move.

Lord Falconer of Thoroton: My Lords, I know that the noble Baroness is pursuing in this amendment a more general concern that she raised earlier in debate to ensure that certain sex offences could be dealt with only at the Crown Court. Amendment No. 66 would remove the provision that the offence at Clause 17 can be tried summarily as well as in the Crown Court. I believe that it is important in the grooming offences that we retain the possibility of summary trial.

In this offence, the offending behaviour that we are targeting is at a preparatory stage before a substantive physical sexual offence against a child has been committed. The essence of this offence is an adult meeting or travelling to meet a child, following two meetings or communications with them, intending to engage them in sexual activity at either that meeting or a subsequent one.

The adult charged with the offence may never have met the child concerned. He may have simply communicated with the child online or via a telephone text message. He may not have said or done anything overtly sexual towards the child. It may be the first time that he has been charged with anything remotely like a sexual offence. It might be a 19 year-old and a 15 year-old. Evidence may be obtained relating to the defendant talking to other people which indicates that the sexual offence considered would not be at the more serious end of sexual offences. As in all those cases, it is incredibly important to keep this in perspective and to recognise that the landscape is from the not so serious to the extremely serious offence.

Therefore, for example, the paedophile seeking to groom children for offences should plainly be tried in the Crown Court. But is every 19 year-old who sends a text message to someone suggesting that they meet with a view to perhaps going to the cinema and committing what technically constitutes a sexual offence always to be tried in the Crown Court? I am not so sure and I believe that the right course to take is to look at each case on its merits. I think we can trust the CPS to do that. It is not right to limit where charges for this offence can be heard. I understand the motive behind it, but it is the wrong approach. For those reasons, I shall be resisting the amendment.

Baroness Noakes: My Lords, I thank the Minister for that reply. I believe that the difference between us is that he sees this offence as covering a wide range of activity—for example, a 19 year-old texting a 15 year-old about a sexual liaison. I have never considered the offence created by Clause 17 as remotely covering those types of activities, which are not serious sexual predator activity. To use the examples cited earlier, this is about men going out with condoms and ropes in their pockets to entrap young, vulnerable children,

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having enticed them to a meeting. It is not about text messages between teenagers slightly above and slightly below the age limits.

I am particularly concerned about under-13 year-olds and sending the right messages. I may return to this issue later. In the mean time, I shall read carefully what the noble and learned Lord said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.15 p.m.

Clause 18 [Abuse of position of trust: sexual activity with a child]:

Lord Thomas of Gresford moved Amendment No. 67:

    Page 8, line 16, leave out from "the" to end of line 20 and insert "other person is over 13, it is a defence for the defendant to show that he did not know, and had no reasonable cause to believe, that that other person was under 18."

The noble Lord said: My Lords, we move from child sex offences to a series of groups of offences between Clauses 18 and 49—four groups in all—which deal with particular relationships: the position of a person who is abusing trust; the familial relationship; offences against persons with a mental disorder or learning disability; and care workers.

One of the curiosities of the Bill is that those four groups are not all dealt with in the same way. In respect of people in a position of trust, familial relationships and care workers, the policy of the Government is to transfer to a defendant in the particular circumstances outlined in the Bill the persuasive burden of establishing his innocence. I shall not weary those brave few noble Lords who remain with a repetition of what I said earlier.

Interestingly, in the group which appears in the middle of all these—that is to say, the group that concerns people with a mental disorder or learning disability—the persuasive burden is not transferred. If one looks at Clause 32(1)(d), one observes that it is still for the prosecution to prove that the defendant knows or could reasonably be expected to know that the complainant has a mental disorder or learning disability and that because of it that person is likely to be unable to refuse. So the approach of the Government to the four groups is not consistent.

The formulation in relation to the three groups where the burden transfers to the defendant to prove his innocence—I am using shorthand here—passes the persuasive burden to the defendant to prove—I refer to Clause 18(2)—that he believed that the other person was 18 or over, and then transfers the persuasive burden back to the prosecution to satisfy the jury that the belief was unreasonable.

I have already wearied your Lordships in Committee about the difficult mechanisms that are involved in such a transfer. If one had to sum up to a jury, it would in my view be extraordinarily difficult to instruct a jury that in relation to a number of the matters that are set out in this offence it has to be satisfied when it comes to passing the burden to the

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defendant to prove his defence that it is on a balance of probabilities. When the persuasive burden shifts back to the prosecution it has to be sure, having been satisfied on a balance of probabilities that the defendant believed the other person was 18, that the belief was unreasonable.

Those with little experience of the criminal courts may think that this is a simple matter and that juries are capable of being so directed. I reflect upon the words of the noble and learned Lord, Lord Lloyd, earlier today when he talked about the experience of those who drafted the Bill. I think that they are very enthusiastic and very bright, but I am not sure that they are very experienced. I would say the same about the Minister when it comes to criminal matters. It seems to me that the difficulties that would arise in directing a jury have not been properly assessed.

I consider, as I said in relation to the earlier provisions that we discussed, that the passing of the persuasive burden to the defendant in the case we are discussing is likely to offend Article 6(2) of the European Convention on Human Rights. If I were defending a person in that situation, I would certainly make that application. I can distinguish the situation, however, from the charges of rape or more serious sexual offences that we discussed earlier, because the sentences in those cases are very much greater.

I do so also because it is possible to say that, because of the relationship with a care worker, the familial relationship, or that with the person in a position of trust, it is right to impose an almost strict liability and say, "You will not have sex with anyone under the age of 18, anyone with a mental disability who is in your care, or any member of your family under the age of 18. That is the offence". Only then is the defence raised, which might satisfy the fair trial provisions of Article 6(2). There is a distinction to be drawn because, unlike the offences that we discussed earlier, which apply right across the board, we are concerned with imposing an almost strict liability on people in a specific tight relationship.

Having said that—if I were to concede that, and I do so only for the purposes of argument—it is still wrong in principle to adopt the formulation that the Government have adopted, which brings the burden back to the prosecution to prove that a belief was unreasonable. If someone is to take the convention on and say, "We are going to define the offence tightly, but there is a defence of reasonable belief", it seems to me that they should go the whole way and say, "The defence is that you have to prove that you have a reasonable belief", rather than falling back on the prosecution to satisfy the jury that it is sure that the belief is unreasonable.

Those who drafted the Bill have fallen between two stools. They have not been confident enough to say, "We are going to breach the presumption of innocence in these instances, and we are going to say that it is for the defendant to prove something—his reasonable belief—entirely". Instead, they have come to a halfway house where they divide the responsibility between the prosecution and the defence—between the defence and

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prosecution, I should probably say—and hope that that satisfies any challenge that may subsequently be made to it in the courts under Article 6(2).

I am against the provision in principle, because it could offend against Article 6(2). I am against it from a practical point of view, in that the way it is framed is unworkable. Noble Lords have heard today from judges of a greater standing than me who have criticised the unworkability of parts of the Bill. Across the board, in the three groups where the attempt is made, the provisions are unworkable. I would much prefer to see a formulation that follows that—curiously, it is in the middle of everything, between Clauses 32 and 41—which relates to those who have a mental disorder or learning disability. I beg to move.

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