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Baroness Blatch moved Amendment No. 17:
- Page 6, line 24, at end insert—
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 81 and 85. The first time that I intended to speak today was on my own amendments. My intervention on the previous group of amendments was unplanned. I was not quick enough on my feet to welcome most warmly the noble Baroness, Lady Scotland, to her post and to congratulate her on her promotion, as I had intended. I know that we will enjoy most informed debates with her representing the Home Office on the Front Bench. I also pay my compliments to the noble and learned Lord, Lord Falconer, who has shepherded us through the Bill so far.
Clauses 15 and 74 were amended in Committee to provide a defence to child sex offence charges to those who claim to be acting to protect a child from sexually transmitted infection or physical harm or to prevent pregnancy. Amendments Nos. 17, 81 and 85 are a pared down version of the amendments to which I spoke on Report to limit the defence.
I regard the defence as unnecessary and dangerous. I rehearsed examples, reported in Hansard at col. 1110 on 2nd June, of child sex abusers who hid behind the claim that they were providing sex education. Over-sensitivity to complaints from the sex education industry has led the Government to create a defence that I continue to regard as a paedophile's charter.
I have disagreed consistently with those who have attempted to widen the defence yet further. I am disappointed that the Government are now going along with it. Amendments Nos. 19 and 20, which will be debated in the next group, will allow people to get off charges of facilitating child sex abuse if they can raise a claim that they were acting to protect the child's emotional well-being—whatever that means.
Given the very strong criticisms that the noble and learned Lord, Lord Falconer, made of the proposal only two weeks ago—I will come to them in a moment—I am astonished. I said on both previous occasions when we debated the issue that no one has adduced any examples of respectable sex education professionals being prosecuted simply for helping young people. None of the agony aunts and advisers who apparently want the defence has been unjustly prosecuted. There is no evidence of any problem.
I said that making a law when there were no examples of the problem it was intended to tackle was dangerous. The noble and learned Lord,
I also argued against the defence by saying that paedophiles would rely on it to seek to excuse themselves from child sex offences. I raised that argument on the first day of Report, and the noble and learned Lord, Lord Falconer, rejected it. Yet, on the very next group of amendments, when my noble friend and the noble Baroness, Lady Walmsley, sought to extend the defence to cover emotional well-being, the noble and learned Lord, Lord Falconer, said:
I am now even more incredulous, because those words have been forgotten and the Government are now embracing the concept of extending the defence to cover emotional well-being, again without any definition of the term. I would welcome a definition when the amendments are spoken to.
The noble Baroness, Lady Walmsley, realised that the noble and learned Lord was guilty of double standards when she said that extending the defence to cover emotional well-being would not makes things any worse:
I greatly regret that the defence will remain in the Bill. I still cling to the hope that we can at least insert one common-sense exception. I hope that my noble friend and the noble Baroness, Lady Walmsley, agree. Clearly, a sex offender should never be able to escape a conviction of facilitating a child sex offence or aiding and abetting child sex offences by simply claiming that he is some sort of freelance sex education adviser. I cannot envisage any situation where a registered sex offender has any right to be involved in giving intimate
My amendment, therefore, excludes from the defence individuals who are subject to the notification requirements under Part 2 of the Bill. The previous version of my amendment would have excluded such people for life; however, this version operates only while they remain on the register. The amendment also excludes from the defence those who are subject to a risk of sexual harm order, foreign travel order or sex offences prevention order under Part 2.
I know that the noble and learned Lord, Lord Falconer, spoke during the previous debate about the Criminal Justice Bill and how it could address disclosure of previous convictions. However, the Government have allowed the new defence to be inserted into this Bill; therefore, this Bill is the place for ensuring that it cannot be abused by sex offenders. The Bill containing the provisions for registration of sex offenders and various preventative orders that can be used against them is the place for ensuring that such people cannot make a mockery of the system by relying on those defences to excuse their activity. I beg to move.
Lord Lucas: My Lords, I entirely support my noble friend's amendment. I do not come at all from the same direction as she does in her arguments, particularly as I shall support some of the amendments in the next group, but I very much agree with her that there is absolutely no reason why the sort of trespasses on the principle of the Bill that are allowed by the Bill as drafted and would be allowed by the next group of amendments—for the very good reason of allowing the ordinary comforting and advice that should be available to children—should ever be open to someone on the sex offenders' register.
Baroness Walmsley: My Lords, I have been quoted by the noble Baroness, Lady Blatch, so I feel that I should respond to the amendment. I am afraid that I do not support it, as I think that it is unnecessary. For the same reason that I do not think that paragraphs (a), (b) and (c) of subsection (3) provide a paedophiles' charter, I do not think that proposed paragraph (d)—we will come to it in a moment—does. There is one simple reason for that. Lines 35 and 36 at the end of subsection (3) say,
Baroness Howarth of Breckland: My Lords, I would support the noble Baroness, Lady Blatch, were it not for the fact that my understanding—I am sure that the
Baroness Scotland of Asthal: My Lords, I respectfully agree in relation to those matters. I thank the noble Baroness, Lady Blatch, for her warm compliments.
The purpose of Amendments Nos. 17, 81 and 85 is to ensure that the exception that we have introduced to protect those acting to protect the physical safety of the child, or to protect him or her from pregnancy or sexually transmitted infection, shall not apply if the accused is a registered sex offender or the subject of an order designed to prevent sexual harm.
We know why the noble Baroness is so concerned about that, and this is a matter that should exercise attention. There is no dispute between us as to the import of the concern that the noble Baroness has set out. None of us wants the exception to provide a loophole for abuse. We have drafted it carefully so as to avoid that possibility.
Although the noble Baroness, Lady Blatch, has fashioned her amendment and expressed it slightly differently, it is very similar to one that she proposed on Report, to exclude from it those who were once, but are no longer, subject to registration requirements or to an order designed to prevent sexual harm. I still do not believe that the amendments proposed are the right way of ensuring protection for the child.
First, they focus on a class of individuals defined by what they have done previously rather than on the purpose for which an individual is acting in a given situation with a real child. Secondly, the class of individuals would include those who have committed sexual offences that did not in any way involve a child. It is not a prerequisite for registration or for any of the orders, save the foreign travel order, that the subject must have a conviction for a child sex offence.
It is better for the court to deal with the particular circumstances before it and, where it is raised as an issue, take a view based on the available evidence of whether the defendant was acting to protect a child, or was rather acting so as to cause or encourage a sexual offence involving a child.
The noble Baroness, Lady Howarth, was right in the comments she made about the exception, but I think that the noble Baroness was talking about those cases where the individual was in employment. In that regard, she is absolutely right. The noble Baroness, Lady Blatch, may be concerned about persons giving advice to a child on their own. That is why I will address my comments to that end.
Provisions in the Criminal Justice Bill that was introduced here yesterday are also relevant to this issue. If someone previously convicted of sexual offences against a child were charged with a new sexual
However, proposals in the Criminal Justice Bill would make such evidence available to the court in a wider range of circumstances. Therefore the court, when considering whether the exception applies, would be able to consider this matter, where relevant, taking into account those previous convictions.
We have taken great care in the drafting of the exception not to open a loophole for abuse, and we believe that we have successfully done this. However, we are certainly not complacent. It may be sensible to exclude from the scope of the exception those who do not go so far as causing or encouraging a sex offence involving a child, but who may derive sexual gratification from simply talking to a child about sexual matters.
In some cases, this may be difficult to prove, but there may be other cases in which evidence as to this motive is available. We will actively be considering in another place whether the exception should be broadened to exclude those who act for sexual gratification.
I do not believe that the amendments tabled are the most appropriate way of addressing this issue and I must, therefore, resist them. I invite the noble Baroness to withdraw the amendment.
"( ) he is not subject to the notification requirements of Part 2 of this Act or to any order made under that Part, and"
"there is a great danger in making offences extend to areas where there is no evidence of a real problem".—[Official Report, 2/6/03; col. 1138].
I would say that there is a great danger of making defences extend to areas where there is no evidence of a real problem.
"It would create a potential loophole that abusers could exploit".
He went on to say that it could,
"potentially weaken the protection offered to children".
He also said,
"I believe that we would end up with this becoming a major focus for criminal proceedings . . . because it would become 'the issue' upon which defendants would rely. We would regret that outcome".—[Official Report, 2/6/03; cols. 1135-36].
I could hardly believe what I was hearing. It was almost as though the noble and learned Lord had plagiarised my earlier speeches, as those were precisely the concerns that I have about the defence. So what has changed?
"Someone could try to defend himself from a charge of 'inappropriate activity' by suggesting that he wanted to protect the child from sexually-transmitted infection by talking to the child regarding how he or she could have sex wearing a condom. In exactly the same way, a paedophile who was up to no good could also try to use that defence. Yet the noble and learned Lord seems to be perfectly happy with paragraphs (a), (b) and (c)".—[Official Report, 2/6/03; col. 1137].
The final sentence refers to the defence as drafted.
"and not for the purpose of causing or encouraging the activity constituting the offence within subsection (1)(b) or the child's participation in it".
Those two lines make it almost unbelievable that a former sexual offender who was giving advice to a child, even under any of the proposed exemptions, could get away with such a defence. Those two lines would protect the child from any untoward activity.
5 p.m.
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