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Baroness Scotland of Asthal moved Amendment No. 26:
- Page 8, line 6, leave out from "B," to end of line 19 and insert—
The noble Baroness said: My Lords, I shall speak to a large group of amendments. Various Members of the House have taken issue with the way in which the drafting of certain clauses in the Bill shifts the burden of proof from the prosecution to the defendant and back again to the prosecution. Apart from concerns that have been raised as to whether reverse persuasive burdens are ECHR compatible, this shifting of burdens has been criticised as unduly complicated and confusing for juries.
We are still of the opinion that it is not unfair to expect a defendant to explain to the jury why he was mistaken about facts that were particularly within his sphere of knowledge, for example that he did not know that he was in a position of trust, or in a familial relationship with someone, that he did not know that someone he was caring for had a mental disorder or learning disability, or that he was mistaken about the age of a child to whom he is related or with whom he is in a close, caring relationship. Nevertheless, in response to the concerns that have been raised, we have decided to table a series of amendments in relation to the abuse of trust offences, the familial child sex offences, the sex with an adult relative offences and the care worker offences, so that the burden of proof rests with the prosecution throughout.
However, the prosecution will be assisted by a presumption in each case, so that the defendant's mental element in relation to the child's age, the nature of the relationship or the other person's mental disorder or learning disability will be taken to have been made out unless the defendant raises an issue as to these matters in evidence.
For example, Amendment No. 26 amends Clause 18 (Abuse of position of trust: sexual activity with a child) so that the prosecution is required to prove all of the facts of the case, namely that a relevant sexual act took place between the defendant and a child under 18 with whom he was in a position of trust, and that for the positions of trust arising in an institution, the defendant knows or could reasonably be expected to know of that position of trust, and that (where the child is 13 or over) the defendant did not reasonably believe that he was 18 or over. Where the defendant claims to have reasonably believed that the child was aged 18 or over, and adduces sufficient evidence to
The effect of our amendment is that, first, the persuasive burden placed on the defendant in relation to his state of mind concerning such issues in the previous draft of the Bill has been removed, and secondly the burden of proof rests with the prosecution, although they are assisted in this by a presumption which places an evidential burden on the defence. The burden no longer shifts from the defence and back to the prosecution in respect of two different elements of the same defence. Rather there is a new element of the offence to be proved by the prosecution. This simplifies the clause.
Amendments Nos. 27, 28 and 29 make the same changes in relation to the other abuse of position of trust offences at Clauses 19, 20 and 21. Amendments Nos. 39 and 40 make similar amendments in relation to the familial child sex offences, in those cases where the defendant claims to have believed that the child was 18 or over, or that he did not know that a familial relationship existed between them. Amendments Nos. 78 and 80 make the same amendments in the clauses relating to the sex with an adult relative offences, in relation to lack of knowledge of the familial relationship. Amendments Nos. 58 to 65 have the same effect in relation to the care worker offences at Clauses 40 to 43.
We believe that these amendments address the concerns that have been raised about the rebuttal presumptions.
I understand that the noble Lord, Lord Lucas, intends to degroup his amendment and therefore I will deal with my response to that amendment when we come to it. I beg to move.
Lord Thomas of Gresford: My Lords, this has been my particular hobbyhorse from the very beginning, at Second Reading, in Committee and on Report. I was concerned with two things: first, whether the presumptions as originally drafted could possibility satisfy the requirements of the European Convention on Human Rights. I was of the view that as the earlier part of the Bill had presumptions which were inevitably fatal, there was an argument here. My other concern was that it was almost impossible to explain clearly to a jury how a persuasive burden could shift from the prosecution to the defence and then back to the prosecution, involving different standards of proof: proof beyond reasonable doubt when the prosecution was concerned, proof on a balance of probabilities when the defendant had to prove something. It was impossible.
Like many noble Lords today, I pay tribute to the noble and learned Lord the Lord Chancellor and to his excellent team. I paid tribute to them on an earlier occasion. They have all worked hard on the Bill and have brought forward a sensible and practical way of dealing with the issues and with the policy that the Government wish to carry forward in this area. I commend the amendments that we are discussing.
Baroness Noakes: My Lords, I associate myself with the remarks of the noble Lord, Lord Thomas of Gresford. I pay tribute to the hard work that he has done throughout the Bill to produce formulations that might satisfy the Government as regards finding a simpler and better way forward.
Baroness Scotland of Asthal: My Lords, I, too, pay tribute to the enormous contribution that the noble Lord has made. He has contributed to this and to other Bills. I am sure that he will also contribute to a Bill with which we shall deal shortly.
On Question, amendment agreed to.
Clause 19 [Abuse of position of trust: causing or inciting a child to engage in sexual activity]:
Baroness Scotland of Asthal moved Amendment No. 27:
On Question, amendment agreed to.
Clause 20 [Abuse of position of trust: sexual activity in the presence of a child]:
"(ca) where subsection (1A) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B, and
(cb) either—
(i) B is under 18 and A does not reasonably believe that B is 18 or over, or
(ii) B is under 13.
(1A) This subsection applies where A—
(a) is in a position of trust in relation to B by virtue of circumstances within section 23(2), (3), (4) or (5), and
(b) is not in such a position of trust by virtue of other circumstances.
(1B) Where in proceedings for an offence under this section it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(1C) Where in proceedings for an offence under this section—
(a) it is proved that the defendant was in a position of trust in relation to the other person by virtue of circumstances within section 23(2), (3), (4) or (5), and
(b) it is not proved that he was in such a position of trust by virtue of other circumstances,
it is to be taken that the defendant knew or could reasonably have been expected to know of the circumstances by virtue of which he was in such a position of trust unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know of those circumstances."
6 p.m.
Page 8, line 31, leave out from "B," to end of line 44 and insert—
"(ca) where subsection (1A) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B, and
(cb) either—
(i) B is under 18 and A does not reasonably believe that B is 18 or over, or
(ii) B is under 13.
(1A) This subsection applies where A—
(a) is in a position of trust in relation to B by virtue of circumstances within section 23(2), (3), (4) or (5), and
(b) is not in such a position of trust by virtue of other circumstances.
(1B) Where in proceedings for an offence under this section it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(1C) Where in proceedings for an offence under this section—
(a) it is proved that the defendant was in a position of trust in relation to the other person by virtue of circumstances within section 23(2), (3), (4) or (5), and
(b) it is not proved that he was in such a position of trust by virtue of other circumstances,
it is to be taken that the defendant knew or could reasonably have been expected to know of the circumstances by virtue of which he was in such a position of trust unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know of those circumstances."
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