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Lord Falconer of Thoroton: My Lords, we have a range of amendments that all follow the same pattern. The first amendment of the noble Lord, Lord Thomas of Gresford, places the burden on the defence. The defendant must show that he did not know, which is knowledge, and had no reasonable cause to believe, which is reasonableness, that the other person was under 18. The whole burden of knowledge, age and reasonable belief in age is being placed on the defendant.
The noble Lord presumably regards that as legal within the European Convention on Human Rights, so the issue for him is not legality, but simplicity. We take the view that, because all these cases are based on existing relationships, if a defendant asserts that he did not know the age, that there was a mental disorder or that there was a family relationship, he should produce evidence to show that. As those matters are within the knowledge of the defendant, it is appropriate to place a burden on him.
We are advised that the burden of reasonableness, which is a more objective question, cannot appropriately be put on the defendant in that respect. That is why it remains with the prosecution.
Does that cause a problem for the jury? The noble Lord, Lord Thomas of Gresford, nods enthusiastically. Those are the very same juries that we both want to trust. Is it difficult to say, "Members of the jury, the defendant says that he didn't know that the person he was caring for suffered from a mental disorder. It is for the defendant to satisfy you of that on the balance of probabilities. If he does satisfy you, the prosecution must satisfy you that that belief, even if he had it, was unreasonable so that you are sure"?
Is that too complicated? Not in my view. I was struck by our earlier debate. The noble and learned judges who contributed greatly to the debate did not at any stage respond to what the noble and learned Lord, Lord Cooke, said about how the reasonableness provision had worked in practice. It did so, according to the noble and learned Lord, Lord Cooke, in a precisely different way from that in which the noble and learned Lords, Lord Lloyd and Lord Ackner, said it would.
Yes, we must listen to what the judges say, but we must be prepared to form our own sensible views as to what will and will not work in practice.
Lord Thomas of Gresford: My Lords, the noble and learned Lord has clearly forgotten that I said that my drafting was based on the New Zealand principles. It is set out the same way in New Zealand; it is for the prosecution to prove that the belief held by the defendant is unreasonable.
I have followed the New Zealand provisions in drafting the amendments that I tabled in Committee and when considering how to simplify them on Report. I was greatly heartened by the noble and learned Lord, Lord Cooke, who gave such a bill of good health to the New Zealand provisions. That is where I want to be. I think that they are right. The Government's proposal is an unfortunate development of New Zealand practice and legislation.
I have to ask the noble and learned Lord, Lord Falconer, to consider carefully the position. It is no use passing legislation that will be struck down by the courts. We may succeed in getting an amendment through here, which may be reversed in the House of Commons, but if the courts say that it is not good enough, we shall have failed in our duty. I am suggesting a clear view of how Article 6(2)affects such legislation. So I ask the Minister to reconsider the matter; to take advice if necessary, if I may respectfully suggest that, from the Attorney-General or his department on the reverse onus provisions—both the original ones that we discussed earlier and the current ones. It is right that the Minister should say that in the amendments I am concerned about the mechanism and the practicalities. That is true, but I am even more concerned about the principle of reverse onuses of proof.
Perhaps I may in her absence again refer to the contribution, much appreciated around the House, of the noble Baroness, Lady Kennedy of The Shaws, today. She expressed her total opposition to reverse burdens of proof. They are not the way in which the criminal law of this country has developed. They are not the way to protect or to balance the interests of prosecution and defence. I am sure that if they get to court those provisions will fail. I shall return to it, but for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.30 p.m.
Clause 19 [Abuse of position of trust: causing a child to engage in sexual activity]:
Lord Falconer of Thoroton moved Amendment No. 69:
- Page 8, line 35, after "causes" insert "or incites"
On Question, amendment agreed to.
[Amendments Nos. 70 and 71 not moved.]
Clause 20 [Abuse of position of trust: inciting a child to engage in sexual activity]:
[Amendments Nos. 72 and 73 not moved.]
Lord Falconer of Thoroton moved Amendment No. 74:
- Leave out Clause 20.
On Question, amendment agreed to.
Clause 21 [Abuse of position of trust: sexual activity in the presence of a child]:
[Amendments Nos. 75 and 76 not moved.]
Clause 22 [Abuse of position of trust: causing a child to watch a sexual act]:
[Amendments Nos. 77 and 78 not moved.]
Clause 24 [Positions of trust]:
Baroness Blatch moved Amendment No. 79:
- Page 11, line 32, leave out "full-time"
The noble Baroness said: My Lords, I rise in a state of excited anticipation that the Minister will break the habit of a lifetime and accept my amendments. In Committee, the noble and learned Lord was at least sympathetic to the amendments. He said that he would table some at this stage and would share their wording with me before today. That has not happened, so my hopes were dashed last night, but I understand that I have reason to anticipate that my amendments may be accepted, so without saying any more, I await good news. I beg to move.
Lord Falconer of Thoroton: My Lords, in Committee I went much further than I have in any other unguarded moment and undertook to table government amendments on Report to include part-time students in the offence. I regret that, as the result of an oversight, I failed to do so. However, the amendments tabled by the noble Baroness, Lady Blatch—Amendments Nos. 79, 80, 91 and 92—achieve the effect that I said we were prepared to accept. Her amendments deal with the issues raised by previous amendments. I again thank her for raising the issue; I apologise for not tabling amendments as I undertook; but we agree to the amendments and may now pass them.
Baroness Blatch: My Lords, I am hugely grateful. I thank the noble and learned Lord most warmly.
On Question, amendment agreed to.
Baroness Blatch moved Amendment No. 80:
- Page 11, line 34, leave out "full-time"
On Question, amendment agreed to.
Baroness Blatch moved Amendment No. 81:
- After Clause 24, insert the following new clause—
The noble Baroness said: My Lords, I suspect that I shall not be as lucky this time, but here goes.
On Second Reading, the noble and learned Lord said that the Bill aimed to:
Clause 24 protects children in young offenders' institutions, residential homes, hospitals and care homes, those who are in education and those who are looked after by mentors appointed under the Learning and Skills Act 2000, personal advisers under the Children Act 1989 or youth offending teams. However, it does not protect those looked after by officers appointed to represent their interest under the Children Act nor does it protect those appointed as supervisors under that same Act. Those issues are addressed by my Amendments Nos. 83 and 84, which simply require the Secretary of State to use his order-making powers under Section 24(1)(b) to extend the abuse of trust offence specifically to cover those two categories. The noble and learned Lord the Minister indicated in Committee on 1st April at col. 1295 of Hansard that he would give further consideration to those posts. Given the strong similarities with mentors and personal advisers, which are already covered by the Bill, I cannot see any logical reason for refusing to add those two categories.
The Minister also indicated that he would consider sports coaches—that issue was raised by the noble Lord, Lord Faulkner of Worcester, who is in his place. Amendment No. 86—I hope that I will be forgiven for the presumption that I tabled it on Report—simply places an obligation on the Secretary of State to lay down the circumstances in which such persons would be covered by the abuse of trust offence.
I have also returned to the issue of youth and community workers and voluntary youth groups in Amendments Nos. 81 and 82. I chose the phrase, "youth and community workers" in Amendment No. 81 not only because it is in common usage but because the phrase is already used in statute. Amendment No. 82 addresses the wider category of voluntary youth group workers. The noble and learned Lord said last time that the Government are guided by three criteria when deciding which areas to
When I called for youth groups to be included in the abuse of trust offence, which is contained in the Sexual Offences (Amendment) Act 2000, the then Home Secretary and the noble and learned Lord the Lord Privy Seal, who was then Attorney-General, indicated sympathy. During the Committee stage of this Bill, even the noble Lord, Lord Thomas of Gresford, indicated that he was sympathetic to extending the offence in that way. He did so in Hansard on 1st April at col. 1293. I hope that I will be able to add the Minister to my list of supporters.
This morning, as it happened, I received a letter from the noble and learned Lord the Minister on a point relating to Scottish jurisdiction, which gives an important illustration of the limitations of the abuse of trust as drafted. In the previous debate, I posited a situation in which a child from England goes away on summer camp as part of the Duke of Edinburgh award scheme and has sex with one of the camp organisers who lives in Scotland. The Minister referred to that scenario in his letter and said that the necessary relationship of trust would not exist and that no offence would be committed. I find it extraordinary that such an obvious example should be left out from the scope of the offence. Parents who send their children away on such camps would be horrified to think that their child was not protected from the offence in that situation. I wonder whether the Minister will give further consideration to extending the offence to cover that situation also.
In Amendment No. 85 I return to the issue of childminders. The noble and learned Lord indicated last time that he thought that childminders did not have sufficient influence over 16 and 17 year-olds to merit being brought within the scope of the offence. However, that ignores the fact that many parents leave the childminder in charge of all the children in the house, not just the younger ones. It ignores the fact that the childminder and the older child may spend hours alone together after the younger children have gone to bed. It also ignores the enormous trust that parents place in those they invite into their home to look after their children. It ignores the many opportunities for abuse while the parents are away from home.
My Amendment No. 87 addresses ancillary and caretaking staff who work in the institutions listed in Clause 24(2) to (5). It is not just those who work directly with the children who have a position of trust.
I mentioned on Second Reading the example of Eric Drummond, a school caretaker who was found guilty in October 2001 of repeatedly sexually abusing children. I also mentioned the case of Holly Wells and Jessica Chapman, where the relationship with the caretaker might prove to have been significant.
It is quite wrong not to recognise that caretakers can and do find themselves in a one-to-one relationship with a child. Often it is the most vulnerable children who are left behind at school—those children who are not collected by their parents. The caretaker can then strike up a friendship and become particularly friendly with the child, with all the scope of empty classrooms and an empty school to get up to no good.
I strongly believe that all these areas ought to be covered and I hope that on reflection the noble and learned Lord will accept that these amendments are very worthy of consideration. I beg to move.
"POSITIONS OF TRUST: YOUTH AND COMMUNITY WORKERS
Within six months of the coming into force of section 24, the Secretary of State shall, by order under section 24(1)(b), specify conditions relating to youth and community workers who work with persons under 18."
"give children the greatest possible protection under the law from sexual abuse".—[Official Report, 13/2/03; col. 772.]
For that purpose, the Bill recognises that those under the age of 18 are in fact children. The abuse of trust offence has been created to protect those under 18 from adults who seek to take sexual advantage of them using their position of trust. It recognises that children are vulnerable to people who exercise influence over them and that some adults abuse positions of trust to gain sexual gratification from those in their charge.
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