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Baroness Walmsley: Before the Minister sits down perhaps I may ask for a couple of points of clarification. Early on in her response she indicated that one of her objections to accepting these amendments was that they could mean that an offender would be prevented from volunteering at his or her own child's playgroup, for example. Does that mean that the Minister feels that we should accept less rigorous standards in the voluntary sector than those we should accept in the public sector?
Perhaps I may raise the second point before the Minister responds. The most convincing argument that the Minister made in her response has been the issue concerning automatic bans for juvenile sex offenders. The noble Baroness knows that I have always argued for children to be treated differently. Given what we know about the efficacy of treatment for young sex offenders and the potential for that sort of good quality treatment to change their behaviour completely, I would feel that what the Minister has had to say is very convincing.
Does the Minister intend to say to the Committee that if the group of amendments was amended to take account of what I have just said about young sex offenders having the potential for treatment and changing their behaviour, she might be more inclined to accept a group of amendments that would affect only adults? Perhaps the Minister would clarify that in her response.
Baroness Scotland of Asthal: I am very happy to do so. I was not in the least suggesting that a different standard needs to be applied to the voluntary sector from that which we apply to the statutory sector; absolutely not. I was trying to give the example of the 18 year-old who has facilitated sexual activity by one of his siblings with their boyfriend or girlfriend, all of which is totally consensual as far as the young people are concerned but reprehensible and against the law and therefore the 18 year-old should be registered. But they may feel that they have not done anything so unforgivable that they should not go on to have a perfectly good relationship with their husband or wife and then have children.
If that person is 18 and they did something of that sort, to say that they fall within the category of persons who must never under any circumstances work with children seems a little severe. The noble Baroness will know that among young people there is a different approach to sexual activity at a younger age than that at which many of us would like them to participate. They do not share our abhorrence, worry or concern that we, their parents, have on their behalf about early sexual activity that puts them at risk.
So if we are considering that bracket, the provisions bite too hard. The whole point of making a distinction between the ordinary offence for which less than a year is applied and the 12-month provision is that we can know that the provisions, which will ban people for lifemany of us are very comfortable with that ban for lifebite only when there is a serious risk and that we will not catch an 18 year-old who may have been in a fracas with a 15 year-old.
The 15 year-old may be six feet four; the 18 year-old may be five feet two; but one could say that that is a physical assault on a child. Correct; but should that fracas between two teenagers be converted to a life-long ban for the elder teenager never to participate in children's care? The whole point of what we are trying to do is to ensure that those who abuse childrenwho seek to harm them in what is often a sexual, physical, abusive waydo not get that opportunity. We are not discussing the ordinary bad behaviour between two people who may see themselves as equal but find out that they are not.
That is why we say that the present threshold is about right. I do not hide from the Committee that I have been worried by what the noble Baroness, Lady Blatch, has saidfirst, about how some courts may be applying it. There may be questions there about what we should do with the Judicial Studies Board and training. I am concerned about what I have heard about cases in which prosecutors and others are properly bringing that to the attention of the courts. I know that my right honourable and learned friend the Attorney-General will share that concern and address those issues, and I shall be happy to write to Members of the Committee about it.
We are at an early stage because, although the provisions were introduced in 2001, there are few cases and we need to get the matter right. I repeat the genuine undertaking given by my late friend Lord Williams of Mostyn and my noble friend Lord Bassam that we will keep the issue under review and will want to return to it once we have a proper idea of where the land lies. I understand everything that has been said about the matter.
Baroness Blatch: Before I wind up on the amendment, I should be grateful if the noble Baroness would return to two points that she made, on both of which I must confirm my understanding of what she saidthere may be some mistake. Am I right that she said that, although magistrates will in future be able to award sentences of up to one year, if someone commits a qualifying offenceas set out in the 2000 Actand receives a sentence of one year, because it is given in a magistrate's court, he will not receive a disqualification order; but that, if it were in the senior court, he would? If my understanding of what the noble Baroness said is correct, that seems absurd.
Baroness Scotland of Asthal: I said that I believed we had received a very recent ruling that would allow the retrospective application of this procedure. I have not yet looked at the ruling myself. The number of cases will still be limited. I would quite like to see the authority myself to verify that it does what we hope it will do. I shall write to the noble Baroness to clarify the matter. I believe that I can reassure her that we can seek to put it right.
On the seniority of the court, I am not suggesting for a moment that the magistrates' court will do one thing and the Crown Court another. When dealing with this sort of applicationwe are talking about a lifelong banthe appropriate level of judicial office to impose that ban will be the Crown Court. In due course it may be deemed appropriate for those cases to be transferred to the Crown Court to be dealt with there.
We take the issue very seriouslyI can take it away and consider it. The noble Baroness will know that there will be a transitional period before the magistrates' court can deal with cases. They will deal with cases up to 51 weeks. Cases up to 52 weeks will go elsewhere. Given the gravity of what we are doing, we think such cases deserve to be dealt with by a more senior judge. There is no suggestion that one approach operates in the magistrates' court and another in the Crown Court. The Crown Court seems more appropriate, because we are talking about denying someone an opportunity for ever. That is an important and necessary, but quite draconian, step.
Baroness Blatch: I am reasonably satisfied on the first point in that the noble Baroness will write to me. It seems not that the department or Ministers will seek to have retrospective orders applied, but that, if it is legally possible, they will be applied in every case where a qualifying offence is committed. I look forward to hearing from the noble Baroness on that point.
I am deeply disturbed by the noble Baroness's response to my point about the magistrates' court. There is a serious lacuna in that, if someone goes before the magistrates' court and receives the maximum sentence allowed under the Bill for a sexual and/or violent offence against a child, and the magistrates' court is not empowered to apply a disqualification order, the case is not necessarily transferred to the senior court. I would like the noble Baroness to reflect on that point and perhaps to return to it at another stage.
The response was less generous than that given by Lord Williams of Mostyn, who led me to believe that there was to be a review. He thought that 18 months to two years would be about the time. We have almost passed that point. It seems that there has not been a
I mentioned earlier the case of a headmaster who systematically, over a period of around one year, abused a young girl almost daily, was deemed by the courts to have suffered enough and given a fine rather than a custodial sentence. That case predates any attempt to go back to the court. I gave that as a real example of the kind of case where the courts can take a view that a custodial sentence is not appropriate, for one reason or another. If it is not a year, and the particular offence is very serious, it seems that there is a case for a disqualification order. One way or another, we will have to look at the issue.
It is inappropriate for a person who has sexually abused or been violent against a child to work with children in a voluntary or paid capacity. We need to seek ways of ensuring that they do not. The noble Baroness said that the purpose of my amendment was to widen the scheme. I would go further. The purpose of my amendment was to widen the scheme in order to strengthen the protection of children. It was a means to an end. There is a lacuna here that needs to be examined.
Like the noble Baroness, Lady Walmsley, the Minister made some persuasive points about child-on-child crimes and the lesser end of some of the offences mentioned. However, she will know, as I do, that I am talking about very serious sexual and violent crimes against children that are not always dealt with appropriately in the courts. That can be because a judge and/or magistrate can think of very good reasons why the defendant should not be given a particularly long custodial sentence of a year or more. I mention Gary Glitter. He is somebody who should never work with children, but he would not, under the present system and even under the scheme as proposed, have received a disqualification order. In my view, he should have.
I will take this amendment away and consider a way of addressing only the points of concern mentioned by the Ministerthe lesser end of child-on-child offences. There is a very powerful argument for looking at many of the other cases that are alluded to and I hope that the Minister will be a little more accommodating if we return with a sensible amendment that picks up her concerns, which she rightly put to me. As to the technical defect, it had been my intention to test the opinion of the Committee. However, I will not do so, because the Minister has given good reasons why we should delay and reflect on this matter until the next stage. However, technical defects have never worried me because if amendments are agreed in this House it is a matter for the powers that be to ensure that the Bill is consistent with the wishes of the House. Although I admit to the technical defect, as a result of what happened in another place it was of less concern to me.