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Baroness Noakes: My Lords, my noble friends Lady Blatch and Lord Skelmersdale have made a compelling case for the removal of regularity from the definitions of abuse of trust and care worker offences. My noble friend Lady Blatch spoke in particular about the abuse of trust provisions, but we should not lose sight of the care worker offences when trying to determine what "regularly" adds to the offence.
Let us consider the example of a care worker who cares for a person who is mentally disordered. Abuse of that mentally disordered person can take place at the first encounter. The Government have already accepted that that is the case. I understand that the Government's position is that no offence is committed under the care worker offences if the care worker is not likely to be caring for the mentally disordered person regularly. Just as a temporary teacher with a young person would not be caught, we have the possibility of casual workers dealing with mentally disordered people also not being caught. We have to remember that many of the services which relate to mentally disordered people are supported only by the heavy use of casual workers and it is highly likely that they will be used. The Government have never explained exactly what they mean by "regular" in this context. While accepting that abuse can take place at the first stage, it does not appear to be a sound basis on which to proceed. I support my noble friend's amendments.
Baroness O'Neill of Bengarve: My Lords, I support the amendments. I believe that the phrase "position of trust" is the governing idea of these clauses. The position is normally held on a sustained basis. Noble Lords have pointed to a number of exceptions and in view of those I do not see how or why one needs to add the requirement of regularity of contact to that of holding a position of trust.
As regards the clauses relating to grooming offences, it was a different matter. There had to be evidence of repeated activity to constitute grooming, but in this case it is surely the holding of the position that is the governing idea.
Lord Lucas: My Lords, we all know what the word "regular" means. When the doctor asks, "Are you regular?" there is absolutely no doubt what he is talking about. He is referring to events occurring at a
predictable interval of time which is in accordance with the usual practices of whatever one is indulging in. If it is concerned with schools and matters of that kind, it is clearly someone who is in contact with a child every week, once a week or several times a week. If it were a games master one would expect him to be there every week. However, if he is on supply, on job share or some other arrangement, it would be very hard to say that such a person came under the definition of "regular" as it is understood in common parlance and certainly as it is understood by a doctor. I cannot see why that should be a requirement. What is required is that it should not be just once in a blue moon. Perhaps the word is "frequently". The requirement for the metronomic character seems to me to let out a great number of people who will see the child sufficiently and who have a sufficient relationship with it to maintain the position of abuse. I support my noble friend.6.45 p.m.
Baroness Scotland of Asthal: My Lords, all noble Lords have spoken about concern for the abuse of trust. We need to be very clear about the mischief which this part of the Bill is intended to address. At present, a position of trust is defined as one where an adult is "regularly" involved in caring for, training, supervising and/or being in sole charge of a child or children. That is the way in which we have so far described it.
As has been explained to the House on numerous occasions, the primary purpose of these offences is to provide protection in the criminal law for young people over the age of consent who are considered to be particularly vulnerable to sexual exploitation—albeit in the guise of an ostensibly consensual sexual relationship—by those who hold a position of trust, and hence a position of power and influence in their lives.
The whole focus of the abuse of trust offences is the fact that the adult and the young person are in an ongoing relationship that is founded on trust and this position can be abused by the adult to his own advantage to influence the child to take part in sexual activity.
It is the very nature of the regularity of the adult's involvement with the child that gives him or her the opportunity to manipulate the child into taking part in unsuitable sexual activity, which the child may say is consensual.
Imposing the severity of the criminal law can be justified in those circumstances only where the breach of trust is particularly serious. That is what was in the minds of those who drafted the original offence in the Sexual Offences (Amendment) Act 2000 and included the requirement that only those who look after the young person on a regular basis should fall within the scope of the offence.
It has to be remembered that an offence is committed only while the position of trust exists between the adult and the young person. It applies only to ostensibly consensual sexual activity and is
aimed at the protection of young people aged 16 and 17. Where the sexual activity is non-consensual or involves children below the age of consent, there are other offences that can be used to punish such activity.We believe that this is an area where we can rely on the judgment which may differ from case to case. Regular contact may cover a short period of consecutive days of contact at a camp, as described by the noble Baroness. It may equally cover a long period of single days of contact but which, taken together, amount to regular contact such as a supply teacher who sees the child irregularly, but regularly over a period of time so they have the opportunity to develop the relationship which can then be used as the tool which persuades the child to enter what may appear to be ostensibly consensual sexual activity with the adult.
The purpose of including the term "regular" is to exclude one-off encounters which do not allow any sort of relationship of trust to have developed and for that to have been used in order to influence the child.
Casual workers are covered where they provide, or are likely to provide, a regular service. "Employment" is broadly defined at Clause 44(5). A one-off worker is not covered because of the need to protect the rights of a person who is mentally disordered to form relationships of their choice.
These are areas in which we have to have a sense of balance and proportion. These offences are designed to be used where sexual activity takes place within the context of an ongoing relationship of trust. Using the word "regularly" in the drafting accurately reflects, as I have just outlined, the policy we wish to adopt. We do not propose to change that.
A further reason why we believe it is important to retain that word is that the current definition of "looks after" in the Bill reflects the wording in Section 115(3) of the Police Act 1997. It refers to persons whose position involves regularly caring or training, supervising or being in sole charge of persons aged under 18.
I say to the noble Baroness, Lady O'Neill, that we believe that the concerns she has as regards teaching staff who may see a young person from time to time would be covered by the other provision. A person who sees a child once and then not for a while, but forms a relationship, would not be caught. We believe that that is proper. Section 115 sets out categories of persons for whom enhanced criminal record checks can be given to employers. Therefore, if we lose this consistency of definition with Section 115, the abuse of trust offences would theoretically cover persons for whom the enhanced criminal records check would not be deemed necessary before they could be employed in their post. It makes no sense to apply a stricter test in the context of the criminal offence than for the enhanced criminal records disclosure.
I turn to the care worker offences. Amendments Nos. 66, 67 and 68 propose the removal of the requirement that face-to-face contact should occur on a regular basis. The government amendments tabled in Committee have now been incorporated into the Bill.
They allow for a person to be in a relationship of care with a person with a mental disorder or learning disability from day one of their role in relation to that person where it is likely that contact will be regular. This is because, with the particular vulnerability of the persons that these offences are designed to protect, care workers are able to take advantage of their position from the outset of the relationship. Going any further than that would risk infringing the freedom of choice of those people with a mental disorder or learning disability who have the capacity to consent to sexual activity.The amendments potentially would prevent someone who was capable of consenting to sexual activity from forging a relationship within one of the limited circumstances in which he was likely to meet a potential partner. We do not wish to interfere with the right of every individual to have a private sex life, and the amendments risk doing just that. For all those reasons I cannot accept the amendments and I invite the noble Baroness not to press them.
Baroness Blatch: My Lords, I am disappointed, because we agree with about 95 per cent of the Minister's comments. The description of how these matters would work is accepted except for the word "regularly". I am grateful for the support of the noble Baroness, Lady O'Neill. She made a point that I should have made more clearly. The nature of the job of a person in a position of trust is as important as the relationship between the child or young person and the person holding that position. If one is in a children's home, staff, as we know, come and go regularly, and employment of someone who comes in for a day or two is cursory. For the young person, whoever is caring for, advising or counselling them is in a position of trust. The trust between the young vulnerable person and the person deemed to be in a position of trust is real even though they may not know each other. The idea that that position can be abused because the Government accept that there has to be a regular relationship between the two is extraordinary.
The Minister said that the perpetrator might see the child irregularly, but regularly over a period of time. Under Pepper v Hart the courts would look to Hansard to ascertain the Government's intention at the time—but that would be a confusing message to send. It defines neither "regularly" nor "irregularly". It allows both to pertain to a particular case. I take the read-across to the enhanced criminal records check with a very large pinch of salt. I have never known legislation that has caused more angst, has been implemented with such ineptitude and has been so badly received in the way it is implemented, how it is applied and the vast numbers of people who are waiting in the wings for it to apply.
We agree that all the Minister's comments reflect how we would wish the matter to work, but the restriction of working "regularly" or "not regularly" should not be there. Anybody who breaches a position of trust at a given time with a person in that age category should be regarded as within the scope of the Bill. I wish to test the opinion of the House.
6.55 p.m.
On Question, Whether the said amendment (No. 35) shall be agreed to?
Their Lordships divided: Contents, 69; Not-Contents, 149.
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