Sex Offenders

– in the House of Lords at 4:24 pm on 19th November 2002.

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Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System) 4:24 pm, 19th November 2002

My Lords, with the leave of the House, I shall now repeat a Statement made in another place. The Statement is as follows:

"Mr Speaker, with permission I wish to make a Statement on the reform of the laws on sex offences and offending.

"Today we are publishing a command paper outlining proposals to increase public protection and modernise current laws.

"First, I pay tribute to my right honourable friend the Member for Blackburn who, as the former Home Secretary, established these reviews. I pay tribute also to those who contributed to the reviews and to the consultations that followed. A summary of responses has been placed in the Library.

"Protection of the public from dangerous and sex offenders is a priority for this Government and this House.

"All crime has a damaging effect on individuals and communities. But sex crimes, particularly against children, can tear apart the fabric of society.

"We have already put in place important protection measures. We have established public protection panels to manage offenders in the community, and introduced sex offender and restraining orders. We have set up a task force on child protection on the Internet and introduced disqualification orders to stop unsuitable people working with children.

"The registration requirements in the Sex Offenders Act have already been strengthened. But there is more that needs to be done, in addition to the revision of sentences and monitoring included in the new criminal justice legislation.

"We are working within government and with other agencies to develop new measures to catch offenders who abscond or change their names without telling the police. As a step towards this, all sex offenders will be obliged to register with the police every year. Fingerprints and photographs will be renewed. Offenders will be required to provide their national insurance details. In future, we will aim to use biometrics to ensure we know who they are and where they are.

"Those entering Britain who we know have been convicted abroad will have to register and to comply with the Sex Offenders Act.

"The research we are publishing today shows that some violent offenders have a greater propensity to commit sex crimes. We are not prepared to wait until they do before we take action. For that reason, we will allow sex offender orders and restraining orders to be taken out against anyone convicted of a serious violent offence if the police believe they present a real risk.

"The law on sex offences is archaic and incoherent. The Sexual Offences Act is 46 years old; and was mostly a simple consolidation of 19th century law. Our proposals for reform reflect changes in society and social attitudes and, most importantly, will better protect the public, particularly children and the vulnerable.

"All sex crimes are abhorrent. But none more so than those committed against children. The Internet has opened up a new world. Chat rooms allow children to contact each other. But we must deal with those who use the Internet to groom children for abuse. To tackle this both on-line and off-line we will create a new offence of sexual grooming. This implements the recommendations of the Task Force on Child Protection on the Internet.

"To further strengthen protection we will create a new civil order to prevent inappropriate adult behaviour such as sending children explicit e-mails or photographs. A further offence of an adult committing a sex act with a child will cover anyone over 13 but under 16 and where the ostensible consent of the child has been claimed. It will carry a maximum sentence of 14 years.

"We do not believe that any very young child truly gives consent to an adult. In a recent case a 32 year-old man was tried for having sex with a 12 year-old. The judge pronounced he was not a paedophile. I beg to disagree. In future, such cases will be treated as rape. The issue of consent where a child of 12 or younger is involved will not be relevant.

"We have no intention of interfering in consensual relationships between adults. But some people with a severe mental disorder or a learning disability are particularly vulnerable to abuse. Convictions under current laws are hard to achieve. There are often difficulties in gathering evidence from someone who is not only deeply distressed but does not understand what has happened.

"For that reason we will create a new offence of sex acts with a person who could not have had the capacity to consent".

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative

My Lords, might I ask the noble Lord—

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, I am repeating a Statement, so I cannot take questions.

"Mr Speaker, I want more criminals to be convicted. Not at the expense of the innocent but because of the cost to society. Giving more rights to victims and communities does not erode the rights of defendants. This is not a zero-sum game. It is a miscarriage of justice when an innocent person is wrongly convicted. And it is a travesty of justice when the guilty walk free.

"Rape is one of the most terrible crimes there is. The current defence of honest belief in consent means that a rapist can claim in court, no matter how unreasonably, that he 'honestly' believed consent had been given and walk free. That is not justice.

"We do not wish to convict anyone who genuinely and reasonably believed that consent was given. But we do expect a defendant to show that his mistake was not only an honest one, but in the circumstances a reasonable one. I have no intention of asking anyone to keep a pen and paper by the bedside. But, we will include a test of reasonableness in the law.

"All rapes, including drug rape, will continue to carry a maximum penalty of life imprisonment. A new offence of administering drugs with the intent to commit a sex crime will carry a maximum penalty of 10 years. We are sending out a clear message that such offences will be treated very seriously.

"A new offence of sexual assault will cover a wide range of offending, from minor assaults through to serious, violent attacks. At the top end of the range, offences will carry a maximum sentence of 10 years.

"Much has been written about the question of anonymity. I am not minded to change the present situation for defendants who have been accused of a sex crime. But I am prepared to listen to the arguments of those who feel strongly on this point.

"There is increasing concern about the role of transnational and organised crime in trafficking children and adults for sexual exploitation. New offences with tough penalties will cover these crimes. We will apply these offences to persons trafficked within the UK, whether they are British citizens or foreign nationals.

"Many in this House will be aware of the terrible exploitation of women and girls through organised criminal activity and the use of pimps to promote and control prostitution. Often, this is linked to drug dependency and what amounts to organised slavery. It is time in the 21st century to face the reality of this sub-world of degradation and exploitation.

"We therefore intend to examine the scope for a review of prostitution. We need to listen carefully to those communities affected most. From anti-social behaviour to Mafia-style criminality, communities are bedevilled by this terrible trade. We must aim to create safer neighbourhoods and an escape route for those trapped by vice.

"Our current laws on sex offences are not only archaic, they are discriminatory. Criminalising acts between homosexuals that are not against the law for heterosexuals goes against the principle of equality and previous reforms. We will therefore update the law to ensure equality of treatment. Consensual sex in private that does not harm anyone should no longer be a criminal offence.

"For the sake of absolute clarity and my own peace of mind, I wish to point out that we will not be legalising sex in public. Existing provisions in the Public Order Act 1986 together with common law offences will remain in place. However, as well as these we will introduce a new offence to deal with specific sex acts in a public place. This will reinforce a sense of decency and respect for others.

"Mr Speaker, our overall aim is to create laws fit for the 21st century which provide confidence and protection—laws which remain true to the time honoured and accepted parameters of a free and civilised society.

"I commend this Statement to the House".

My Lords, that concludes the Statement.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Conservative 4:34 pm, 19th November 2002

My Lords, I thank the Minister for repeating the Statement made in another place. On these Benches, we welcome the content of the Statement. Of course, the White Paper deals with a wide range of issues relating to sex offences. In general, subject to a few caveats, it appears to have struck a sensible balance in dealing with questions that are, by any standards, difficult.

I was grateful to the noble and learned Lord the Leader of the House for indicating last week that this Bill would be a House of Lords starter in the new year. We will need to scrutinise the detail to ensure that the practical effect of the proposals does not undermine the entirely laudable objectives of protecting children and vulnerable adults and of closing unintended loopholes in the current law.

I am delighted that the Government have decided to adopt four of the key proposals to protect children from sex offenders put forward by my right honourable friend Oliver Letwin earlier this year. We also welcome the Home Secretary's refusal to make the sex offenders register public. Will the clauses relating to grooming be drafted in such a way as adequately to distinguish between a clearly evil pattern of behaviour intended to secure later sexual activity with a child and harmless behaviour by an adult towards a child? That will, no doubt, be particularly difficult to define when dealing with the pattern of behaviour in an extended family.

We welcome new measures to increase protection from sexual abuse for people with mental incapacity. When we debated the matter last month, in the debate so ably led by the noble Lord, Lord Rix—I am delighted to see that he is in his place today—I put several questions to the noble and learned Lord, Lord Falconer of Thoroton, who was kind enough, at the time to say that they were too difficult. He ducked them then; I am having another go now. I hope that I may be luckier this time round. Will persons who are held to lack the capacity to consent to sexual relations themselves be liable for prosecution if they engage in sexual activity with another person who lacks the capacity to consent to sexual relations? Paragraph 62 of the White Paper is not clear. Have the Government gone along with the Law Commission's recommendation that, if neither has capacity, there should be criminal culpability only if there is evidence of abuse or exploitation? Will volunteers who offer their services in residential care or nursing homes, hospitals or the personal home of an individual receiving care be liable to prosecution on the same basis as employees if they abuse their position of trust to abuse vulnerable people in their care? Will the definition of a vulnerable adult cover people required to be resident in the accommodation centres that the Government plan to set up to process the applications of asylum seekers?

I turn to the definition of consent in rape cases. I am sure that we agree that every allegation of rape must be taken seriously. We are aware of the widespread concern that it has become more difficult to secure the conviction of those who are guilty of rape, particularly date rape. However, we must all be cautious. In our desire to obtain the conviction of those who are guilty, we must ensure that we do not sacrifice the need to secure the freedom of those who are falsely accused. We must find the right balance so that juries feel able to convict where it is right to do so.

We believe that the Government have made an important start in a difficult area of policy. As Her Majesty's Loyal Opposition, we shall now do our job of scrutinising the Bill carefully, constructively and effectively to ensure that the balance struck is struck in the right way when the Bill becomes an Act.

Photo of Lord Dholakia Lord Dholakia Party Chair, Liberal Democrats 4:38 pm, 19th November 2002

My Lords, we thank the Minister for repeating the Statement on the reform of the laws on sex offences and offending. The issue is of concern to almost all members of the community. We have made several efforts, during the passage of past criminal justice Bills, to ensure that legislation is enacted that will protect children, who are possibly the most vulnerable of our community. We must effectively protect children from exploitation by bringing the law on sex offences into the 21st century. We welcome the Statement.

We will work constructively with the Government and other parties to ensure that children's welfare is of paramount importance. We shall utilise fully the opportunity for reform. We say that because we want the reforms to meet the needs and values of modern Britain. The laws on sex offences are outdated, and there is a danger that they discriminate against some sections of the community. That is well recognised in the White Paper. Almost all aspects of the Statement are welcome. That includes the new sexual offence to protect children, including sexual abuse of a child, grooming and trafficking and commercial sexual exploitation of children. We would expect legislation to improve the involvement of local communities in the planning system in this important aspect of sentencing and release of offenders.

We welcome the Statement on consent. Does the Minister accept the idea that an individual who is intoxicated cannot consent? It is right to ask the jury to consider the reasonableness of the defendant's claim that he had an honest belief that consent had been given.

We welcome moves to tighten the law on child prostitution to protect the victims from exploitation. Surely, it is right that we have a presumption that under 13 year-olds cannot consent to sex? On the Criminal Records Bureau issue, we have expressed our concern in the past that the Government's policy has gone badly wrong. Indefinite suspension of record checks is putting thousands of children and vulnerable adults at risk. We need assurances from the Minister that that will be put right at the earliest opportunity.

Assurance is needed regarding "sex tourists" who escape the current system by committing offences in countries where there is little awareness of the issues and the means to tackle exploitation of children is not in place. On the minors and sex offenders' register, can the Minister clarify the position of minors who commit sex offences? Has he considered that the Scottish children's hearings system might be a useful model for responding to juvenile sex offenders? There is also a need to examine the linked issue with proposals in the criminal justice White Paper regarding jury trials for juveniles.

As regards Sarah's law, can the Minister confirm that there will be no systematic public access to the sex offenders' register? The UK has a high compliance rate—97 per cent, compared to 50 per cent in the United States. On the matter of sex offender treatment, what plans are there to improve treatment facilities in the community? The Wolvercote clinic—the only residential unit in the community—closed in July. On consolidation, I suggest to the Minister, that this is a once in a generation opportunity. Is it possible that there may be a way to consolidate all sex offences Acts within this legislation? That may be the right way to proceed.

A further concern is about police resources to ensure that the offences are prosecuted. The proposed offences require law enforcement to investigate and prosecute successfully. The recent Operation Ore, investigating over 7,200 people who have bought indecent images of children from a website in the US, highlighted the enormous task facing the police dealing with Internet related cases of child abuse. The proposed grooming offence will require police resources to ensure that children are not left at risk. The NSPCC is calling for child protection to be a police priority in the forthcoming national policing plan.

In conclusion, we must ensure that the justice system can determine between offenders and those who may be incorrectly charged. In many cases, prosecutions are brought where the recollection of past years has faded. It is important to have tape recording of interviews and not simply reliance on police notes. The Home Affairs Committee in the other place reported on that proposal; I hope that we shall seriously consider it.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System) 4:43 pm, 19th November 2002

My Lords, I thank the noble Baroness and the noble Lord for their welcome overall of the paper. I agree wholeheartedly that the Bill will need scrutiny in relation to its detail. The detail is very important. Perhaps I may deal first with the specific points raised by the noble Baroness, Lady Anelay. In relation to some of them, she wrote to me and to the noble Lord, Lord Rix, who sent her a reply in detail and then sent me a reply saying he was doing my job for me, which I quite agree with. The noble Lord was extremely helpful in the answers that he gave.

The noble Baroness asked whether we shall be drafting the Bill to distinguish between genuine grooming, in the sense of a criminal offence, on the one hand, and innocent contact on the other? The purpose of the grooming offence is designed to catch those people of 18 or over who undertake a course of conduct with a child under 16 leading to a meeting where the adult intends to engage in sexual activity with the child. An element of the offence, no matter how it is put, has to be an intention to have sexual activity with the child. It will be a matter for a jury to be satisfied beyond reasonable doubt that that is the purpose. The noble Baroness is right to distinguish between that sort of case and one where there is innocent contact.

Will a person who lacks capacity to consent be capable of committing the offences referred to in the Command Paper? Again, that will be a question of fact. There will need to be mens rea established on the part of any defendant against whom such a crime is alleged. In addition, there would be an issue of public interest. The same answer arises in respect to the noble Baroness's third question. She asked what would happen where two people, neither of whom had the capacity to consent, engaged in activity that might otherwise be unlawful.

Her fourth question raised the issue of volunteers—would they be caught? The essence of the crime is the abuse of a position of trust. If someone gets into a position of trust in one of the specified circumstances referred to in paragraph 60 of the Command Paper and then abuses that position of trust in ways specified by the law, it should not matter that that person is a volunteer as opposed to an employee. I did not understand the noble Baroness to be asking a specific question in relation to the rape crime; she was saying that it was important to get the balance right. The Government agree.

The noble Lord, Lord Dholakia, raised a number of issues. In relation to consent, we specify in the Command Paper a number of circumstances— in paragraph 31—where there will be a presumption that consent was most unlikely, though it would be open to the defendant to prove on the balance of probabilities that, in fact, consent was given. Intoxication is not one of the circumstances referred to in paragraph 31. The noble Lord made the point, in my view rightly, that under 13 one should not be capable of treating it as consent. We agree. It is not just a question of there being a presumption against consent for children of 12 or under. We are saying that a child of 12 or under cannot consent where consent is a relevant factor in the crime.

The noble Lord, Lord Dholakia, referred to the Criminal Records Bureau. He said that it was most unsatisfactory that certain checks are not currently in place. That is correct. However, it is worth pointing out that more checks are taking place now than at the time before the CRB was introduced. The Government are working hard to increase the numbers, but it would be wrong to rush the process if the CRB could not cope with the level of demand.

The noble Lord raised the question of juveniles on the sex offenders' register. Our position is that where a juvenile is charged and convicted of a sex crime to which the sex offenders' register applies, because the register has an element of public protection, it is right that that person should be on it.

The noble Lord raised the question of Sarah's law and asked me to confirm that there would be no systematic publication of the sex register. I am pleased to give that confirmation which my right honourable friend has given in another place. He expressed concern that Wolvercote has closed and that replacement arrangements should be made. We are looking at that. That has been made clear on a number of occasions.

The noble Lord said that this might be the opportunity to consolidate all the laws in relation to sex offences. The consequence of the Command Paper is that there will be a considerable body of law in relation to sex offenders and sex offences in one place. However, I cannot give him an assurance that it will be the whole law because there will still be other statutes that are of relevance.

Finally, the noble Lord referred to the importance of tape recording of interviews, particularly in crimes or potential crimes such as this, where great sensitivity is required. I agree and support what he said.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour 4:50 pm, 19th November 2002

My Lords, I welcome the Statement repeated by my noble and learned friend. Fortunately, I have been involved in only a few but serious cases relating to paedophiles. Will he accept that the situation can be insidious and more widespread than perceived in the first instance by many? Will the police have the resources to investigate such cases?

I welcome in particular the proposals regarding e-mails and the consent of children. We must look at the issue of rape very closely. It is a question of balance. The real problem behind the complaint about so few convictions is that it is usually a one-to-one relationship and there are only two witnesses; the complainant and possibly the defendant. I agree that it must always be a question of balance.

As regards anonymity, I understood my noble and learned friend's remarks to mean that his mind is not closed and he will hear the arguments.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, I thank my noble and learned friend Lord Morris of Aberavon for his remarks, which are gratefully received and come from a source of considerable experience in relation to the trial of serious sex crimes. I agree that child sex abuse is insidious and much more widespread than thought and that it should be a priority for the police.

I note what my noble and learned friend says in relation to the consent issue for children of 12 and under and that we will need to look at that carefully when the Bill comes to the House. As regards anonymity, he is right. My right honourable friend said in another place that he is presently inclined not to grant anonymity. However, his mind is not finally made up and he will be interested to hear the arguments.

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative

My Lords, will the new measure mean that when schoolgirls announce that they are pregnant at the age of 12 there will be some prosecution? Is the Minister aware that there is great concern at the unreasonable number of children as young as that—the latest case only two weeks ago—who have said that they are pregnant but no prosecution seems to follow? Does the new measure mean that that situation will change? Unless there is a clear and unequivocal notice that children must not be attacked and made to have sex, I fear that it will continue.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, the effect of the proposal, should it become law, is that a girl of 12 is not capable of consenting to sexual intercourse. It does not necessarily follow that in every case a prosecution will take place. First, there must be an investigation as to what happened in such a case. Secondly, I refer the House to paragraph 37 of the Command Paper. It states:

"This means that where it is another child or someone in their mid teens who has sexual activity involving physical contact", the example given is sexual intercourse,

"with someone under 13, the only charge available will be a non-consensual offence".

That is rape. It continues:

"However, in some circumstances, particularly where the partners are close in age and apparently agree to take part in sexual activity, it may be more appropriate to pursue the matter through child protection rather than criminal justice processes".

There will be a public interest aspect in relation to that.

It must be down to the circumstances in every case. Obviously, there will be some serious cases but there will be others in which the kind of consideration referred to in paragraph 37 should be taken into account.

Photo of Lord Rix Lord Rix Crossbench

My Lords, I congratulate the Minister and thank him for his prognostications when replying to the Second Reading of the Sexual Offences (Amendment) Bill which I moved on 11th October last. In that reply, he went as far as he could in hinting that we might well hear something of a similar nature in the gracious Speech. Well, we did and today we have the Statement on the same subject. I am both glad and grateful.

Will the Minister confirm two points? Are all the proposals we made regarding vulnerable adults and those with a learning disability firmly stated in the Command Paper? When the eventual Bill is forthcoming, can the Minister assure me that the clauses will not be lost or diminished by the fierce arguments which are sure to rage over various other headline-grabbing clauses in the Bill? I shall sleep more easily tonight if he can give me such assurances—and I must warn the Minister that I am an extremely light sleeper.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, everyone in this House knows that the noble Lord over many years has campaigned to provide proper protection for vulnerable people in relation both to sex crimes and other matters. The noble Lord introduced the Private Member's Bill to which he referred as part of that campaign which has gone on for many years.

The precise detail is not the same, but the import of what the noble Lord sought to achieve in that Bill we seek to achieve in our Bill. He paved the way for it in his Bill and the debate which occurred on the Second Reading of his Bill reflected many of the concerns with which we seek to deal in this Bill.

We are determined to introduce these measures. No doubt they will excite great controversy in this House and in another place, but we are determined to see them through.

Photo of The Bishop of Chester The Bishop of Chester Bishop

My Lords, from these Benches, I thank the Minister for his Statement and offer a general welcome to the Bill which is in prospect, particularly in relation to the protection of those in our society who are most vulnerable. The Church has been involved in well publicised ways with paedophilia from the position of trust in which ministers often find themselves. The Church of England has in place as tight a regulation of these matters and protection of children as any institution in the country and we have worked hard for that. We now welcome the broader extension of the definition of those who are vulnerable in our society.

Defendants can also be vulnerable. In the general atmosphere in our society, which one could sum up as sexual chaos, there is a danger of looking for scapegoats. One sees that in the popular press all the time. I would ask the Minister to bear in mind the danger of embracing in legislation any definition of certain people who can be singled out in that way by the popular press. That leads me to suggest that some protection for those who are accused when it is one person's word against another might well be appropriate, but that will be for the detail.

The Minister also said that it would be inappropriate to discriminate in any way against those engaged in consensual acts in private which harm no one. Harm can take different forms. One of the untold stories in our society is of an epidemic of sexual disease of all kinds. AIDS grabs the headlines but there are many other such diseases. It is a little like deaths on the road; we do not like to talk about them because we are so fond of our motorcars. I hope that when we come to think about what does and does not harm people we can bear those wider issues in mind and test the question of non-discrimination against a wider concept of harm. We on these Benches will want to do that, although we acknowledge that it is improper for the law wrongly to interfere in the private lives of individuals. In general terms, we offer a warm welcome and look forward to the details of the Bill.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, even though no specific question was asked, I am told that I must rise in reply. I am grateful for the right reverend Prelate's welcome for the Command Paper. He raised a number of issues. He pointed out that defendants can be vulnerable in certain circumstances. That is true and it requires us to look at the appropriate protections. He also raised the issue of private sexual behaviour. Part of the proposals seek to try to bring an end to discrimination against homosexuality in certain circumstances which is specific in our law. That is one of the purposes of the Command Paper.

Photo of Lord Hooson Lord Hooson Liberal Democrat

My Lords, as the purpose of the criminal law system is to convict the guilty and to protect the innocent, and as both are equally important, does the noble and learned Lord not agree that there is a great deal to be said for looking at our laws of evidence? Over the years I have suggested to two successive Lord Chancellors—not to the present one—that we should do so.

As regards rape, for example, cases are fought over the question of consent; the difference between the seduction which has been a little overpowering and true rape. It is a matter which can be decided only by a jury, but it would be greatly assisted if there was a review of our laws of evidence. I have suggested over the years that we should consider the French system of an interrogating magistrate and adapt it for this country. A video could be taken of a man accused of rape being interrogated by a police officer in the presence of a magistrate. The video could then be produced as evidence in court. It is no purpose of a lawyer to be part of a conspiracy to cheat justice, and so the defence lawyer could be there to advise his client but not to interrupt the interrogation. The jury could then eventually see what happened on the video.

This could be an important development in our law. It is important to look at the evidence—at what is admissible and what is not admissible—and, as anyone who has practised at the Bar for any length of time knows, it is the initial reaction of a man charged with a serious offence which is often the key to the case.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, I entirely agree about the importance of the evidential issues, particularly in cases of rape, which are peculiarly difficult. People on juries always find them extremely difficult to deal with.

As the noble Lord knows, we have looked at the issue from a slightly different angle—that is, by seeking to provide better protection for the victims of such crimes in the giving of their evidence. We have sought to reduce the strain on them by restricting the ability of the defendant to cross-examine in person, by providing greater protection in court and by softening the process to some extent.

The noble Lord suggests a wider range of changes, which we need to think about, but such changes are not covered in the Command Paper which addresses the issue of the substantive law relating to sexual offences. The introduction of a reasonableness element in relation to consent will enable a jury to look more critically at that issue. It still will not make it an easy issue, but it will give us a broader canvas on which to paint.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, the noble and learned Lord used the phrase mens rea. Can he explain why it is thought that rape is the one crime for which we will abandon the test of mens rea? In all other serious crimes it is the accused's belief that is in question. If he has taken my property but has an honest belief that he was entitled to it, he has a defence whether that belief is reasonable or not. Why is that test to be abandoned in cases of rape? Above all, why is the onus to be put on the accused to prove that he honestly believed there was consent?

As the noble and learned Lord, Lord Morris, said, normally there are only two witnesses. The lady in question—we will assume it is a heterosexual rape—will say, "I did not consent. After we got back to my flat I said no", and the accused will say, "No, she did not. She may have jokingly said no but I thought it was quite all right". Probably both of them will have had a bit to drink. So why is rape suddenly to be singled out as the crime for which we abandon the normal test of mens rea?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, the Command Paper states:

"We believe the difficulty in proving that some defendants did not truly have an 'honest' belief in consent contributes in some part to the low rate of convictions for rape. This in turn leads many victims, who feel that the system will not give them justice, not to report incidents or press for them to be brought to trial.

We have a situation in relation to rape where the prosecution has to prove no honest belief in consent. There may well be cases where there has been no consent—the victim has been raped in any common parlance—but the prosecution fails to prove lack of honest belief and the defendant is acquitted. That is not a sensible situation for the law to reach.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, in what other area of law have we ever abandoned a test because it is difficult to prove?

Photo of Baroness Jay of Paddington Baroness Jay of Paddington Labour

My Lords, I was pleased to hear my noble and learned friend say in reply to an earlier question that the child protection agencies played an important role in many of these issues. I hope that he can confirm that many of these matters, particularly when they refer to vulnerable young people, are more appropriately and more sensibly dealt with in that way.

But when one comes to look at matters which are susceptible to the criminal justice system, we have heard several noble Lords refer to the problems of evidence in this area. Can my noble and learned friend develop a little on how some of these crimes—the new crime, for example, of "grooming" children over the Internet—can properly be investigated when we all know the difficulties of regulating and, indeed, enforcing anything to do with cyber space?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, I can confirm to my noble friend that some of these matters, even though they may constitute a crime, will be better dealt with by child protection agencies, particularly when we are dealing with acts committed between two people both under the age of 18.

As to "grooming", this issue has been looked at in the context of the Internet. In order for an offence to be committed there has to be a meeting. So matters must have moved beyond simply communication through the Internet.

It is worth making the point that the offence of grooming is not restricted to the Internet. It can also be committed in other ways—for example, by telephone or through correspondence to start with—but the critical element is that the meeting is the trigger. Even then, the purpose of the meeting and what went before must have been with the intention on the part of the adult to have a sexual relationship with a child.

Photo of Lord Ackner Lord Ackner Crossbench

My Lords, has the noble and learned Lord considered whether there should be sexual offences less than rape but involving sexual intercourse?

He has no doubt considered the reasons for the low conviction rate, but perhaps I may suggest to him that there are probably one or two to which he has not given regard. At the Bar, it was widely accepted that one of the reasons for the low conviction rate was the abysmally low fees that the CPS paid to the Bar. The former Attorney-General nods. That has been—I will not say put right—altered in that what the Lord Chancellor's Department agreed on the subject of graduated fees for the defence has been reduced, despite the agreement, in order that the reduction may be added to what is paid to the prosecution. So it may be that we will see a better balance between the two.

Secondly, the word "rape" strikes horror in the mind of everyone, and in a jury in particular. It knows that the starting rate of imprisonment is probably six years or thereabouts. It looks at the weeping family of the prisoner and it comes to the conclusion that not all that much harm was done—they were on reasonable terms, they flirted, they drank together—and for the man to go to prison for six years or thereabouts offends its sense of proportion, and accordingly the jury acquits. A lesser offence with a lesser tariff would make a big difference.

As has been pointed out by the former Attorney-General, these cases are usually a one-to-one contest. The onus of proof is beyond reasonable doubt—or, to use the phrase of Lord Goddard, which I always found put it up a bit, you have got to be satisfied so that you feel sure—and that is a very high onus. With a one-to-one situation, you cannot expect a high rate of conviction. Those matters should be borne in mind.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, as to the inequality of alms between prosecution and defence, that was an issue at the time when my noble and learned friend Lord Morris was the Attorney-General and I was the Solicitor General. My noble and learned friend took steps to ensure that the issue of equality was dealt with, and that has made a considerable difference to the nature of prosecutions by the CPS.

As to the noble and learned Lord's second point, the essence of his question was—this is putting it simplistically—"What about a charge equal to rape but of a lesser seriousness in relation to what might be described as 'date rape'?". That matter was considered before publication of the Command Paper, but the view we have taken is that rape is rape and cannot be divided into more and less serious offences. It can be equally as traumatic to be raped by someone you know and trust, who has chosen you as his victim, as it can be to be raped by a complete stranger. Always there will be difficulties in relation to these kinds of offences for the reason given by my noble and learned friend Lord Morris—that is, they frequently involve a one-to-one relationship. Having regard to the seriousness of the offence and the fact that there will always be that difficulty, we do not think that it is right to divide it into two in the way suggested by the noble and learned Lord.