Clause 14 - Child sex offences committed by children or young persons
Sexual Offences Bill [Lords]
4:00 pm
Mr Dominic Grieve (Beaconsfield, Conservative)
I fully understand the hon. Gentleman's intention. Indeed, the intention is similar, albeit differently worded, to that of the amendment moved by the hon. Member for Romsey (Sandra Gidley) this morning and amendment No. 132, which was my attempt. The amendment is, of course, cast in a different way because it preserves the offence while leaving a saving provision to a jury that concludes that, despite the facts, there is no need to convict. Indeed, a jury would have the option not to convict because it is completely happy with what has been going on.
I remember having a discussion at the Bar—not the Bar downstairs—with a barrister about criminal law. We were arguing that it might be possible to get rid of the criminal law entirely, so that people could do whatever they liked, but that if the prosecutor thought that what somebody was doing was wrong they could prosecute them and go in front of a jury, which would have three possible verdicts—that the activity was in order, out of order or totally out of order—and the person would then be dealt with accordingly.
The problem with the amendment tabled by the hon. Member for Lancaster and Wyre is that it raises the obvious possibility that the definitions are so loose that somebody who does some heavy petting in Lancaster might appear in front of a Lancaster jury and see it decide that the activity is in order, while a defendant in Norwich might appear in front of another jury for doing the same thing and, because of the flexibility, see that jury decide that the activity is out of order. I hope that the hon. Gentleman recognises that the degree of uncertainty that that would produce in relation to people's behaviour and conduct is such that the administration of justice would become very difficult. People would legitimately complain that they had a reasonable expectation that what they were doing was in order. They would ask why, suddenly, when they had read in the paper that the activity was held to be in order somewhere else, it was held to be out of order now that they were doing it. However, that is the flexibility that is envisaged.
I will listen carefully to what the Minister has to say on the subject, but I fear that, despite its attractiveness, the amendment would lead to enormous problems. We must either provide a definition of what is acceptable and what is not, or we must stick to what the Minister has proposed, which is that this entire category is unacceptable, without the saving provision.
Under the Minister's proposals, the protection to a defendant is twofold. The first is that the prosecution does not prosecute because it exercises its discretion not to do so. The second, which has always been present, is that even after conviction the judge gives an absolute discharge and says that he regrets that the prosecution brought the case and that he hopes that such a case never gets brought again, which builds a volume of case law on which the prosecutors subsequently exercise their discretion.
I hesitate over the hon. Gentleman's proposal, because it might not work.