My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Falconer of Thoroton.)
Amendment No. 332 is a probing amendment, which seeks to clarify an important point in Clause 66. For cases such as abduction and assault, the clause is eminently sensible. It closes a loophole in the Bill to cover those sexual offences that were never actually committed but where it was obvious that they were intended and where the victim will clearly have suffered a very traumatic experience as a result of the preparatory offence.
Amendment No. 332, however, seeks to limit and define those preparatory offences that the clause is intended to target. We have suggested,
"assault, kidnapping or false imprisonment", but that is by no means set in stone and a healthy debate may flag up additional preparatory offences that it would be advisable to include. There is, for instance, a ready made list in Schedule 3 of offences that might incur a risk of sexual harm order. Why not adapt that to suit Clause 66 or create a new schedule of offences specifically for Clause 66? It seems absurd to say that any offence could be a preparatory offence as defined in Clause 66. The clause is clearly designed to target only the most serious offences and that should be made clear on the face of the Bill. I beg to move.
I want to ask about the restrictive nature of Amendment No. 332. As I understand it, Clause 66 is designed to punish those who commit an offence in order to facilitate them in the commission of a sexual offence. A person may break into a person's house, he may steal their keys to do so, he may even break into their car and lie in wait in the back seat, or he may unlawfully detain them in a flat. He may assault them to subdue them. However, if he does not succeed in committing a sexual offence after any of those, he can still be charged under Clause 66, whereas under the amendment he would not be able to be charged.
Amendment No. 332 would allow Clause 66 to apply only where the prior offence, as I have just described, is,
"assault, kidnapping or false imprisonment".
That would remove protection from the person who finds, for example, a would-be sex attacker in their home. In any event, the amendment conflicts with subsection (3), which imposes a higher penalty where there is a kidnapping or enforced imprisonment.
Is my reading of the clause right, and is my reading of the amendment right? If so, the Government have got Clause 66 right.
I am grateful to the noble Lord, Lord Astor, for giving us an opportunity to describe the policy behind the offence in Clause 66 and that in Clause 67, which is entitled:
"Trespass with intent to commit a sexual offence".
The policy behind both offences is that we want to ensure that those who show that they have a tendency to commit sexual offences are recognised as sex offenders and treated accordingly.
In the main, those seeking to perpetrate a sexual crime who are prevented from doing so by outside forces—such as the intervention of another individual or hearing the police arrive—are currently charged with any criminal act that is perpetrated only as a precursor to the intended sex offence. That is because, with the exception of a few "with intent" offences in the Sexual Offences Act 1956—an example is abduction with intent to have unlawful sexual intercourse—the law provides for a defendant to be regarded as a sex offender only if he is found guilty of an attempted sexual offence. The law on attempts requires that any action is more then merely preparatory to the offence. That means that in cases where the intended sex offence is thwarted at an early stage, the sexual motivation of the offender may not be reflected in any charges brought.
That misses the opportunity to identify and treat those who are inclined towards sexual offending and who might very well go on actually to commit sex offences in the future. We do not feel that that provides either maximum protection or justice for victims of would-be sex offenders. Early identification, punishment, assessment and treatment of actual and potential sex offenders is a key element in the protection of the public from sexual abuse and exploitation and is an important step in securing justice for victims. Therefore, in the interests of offenders and victims, our intention is to frame the criminal law in such a way that it ensures that sex offenders are identified and sentenced accordingly, are offered places on appropriate sex offender treatment programmes whilst in detention and are monitored after release.
The offence that we are introducing in Clause 66 will enable the law to deal effectively and appropriately with anyone who commits any crime with the intention of subsequently carrying out a sexual offence. The approach that we have taken is that the specific nature of the preliminary offence is irrelevant. The important factor is that the defendant is carrying out another crime in preparation for committing a sexual offence. The offence at Clause 66 applies whether the intended sexual offence is a substantive offence or an offence of aiding, abetting, counselling or procuring such an offence and it can be charged whether or not the sexual offence is committed. For example, the offence would apply where a person kidnaps someone in order to rape him or her but is caught by the police before he is able to carry out the intended rape. It would also apply where a person detains someone in their flat with the intention of raping or sexually assaulting him, or where someone physically assaults a victim in order to subdue him so that he can more easily carry out the offence of rape.
As the noble Baroness, Lady Blatch, said, Amendment No. 332, which I fully accept is a probing amendment, would have the effect of restricting the offence at Clause 66 so that it covers only those situations where the defendant commits an assault with intent, kidnaps with intent or falsely imprisons someone with intent to commit a sexual offence. I realise that, taken together with the offence of "trespass with intent" at Clause 67, this would provide offences that broadly reflect the recommendations in Setting the Boundaries.
I agree that these are particularly heinous crimes and that they should be incorporated within the scope of the new offence, but I do not believe that restricting the offence so that it covers only those particular offences does enough to achieve the policy objectives I have outlined.
The important fact that needs to be recognised in law, regardless of the nature of the preparatory offence committed by the defendant, is the intention to commit a sexual offence. In such cases it must be recognised that the substantive offence would have taken place had the attacker not been intercepted or prevented in some way from carrying out his intent. The trauma suffered by victims in cases where the attacker clearly intends to commit a sex offence is directly comparable to that suffered by victims of actual sex offences.
Having an offence that brings any other offence within its scope will enable us to treat as a sex offender someone who, for example, neglects a child by withholding food and drink or medical care with the intention of weakening his resistance so that he can sexually abuse the child, or who commits another lesser sexual offence—such as indecent exposure—in order to frighten a victim before raping or sexually assaulting him. We would also be able to catch the defendant who, for example, stalks his victim, waiting for an opportunity to attack.
We firmly believe that anyone who commits another offence as a precursor to an intended sexual offence should be recognised under the law as a sex offender. He should be sentenced as such—that picks up the point made by the noble Baroness, Lady Blatch—and he should, depending on the seriousness of the case, be liable for registration on the sex offenders register and eligible for treatment under a sex offender treatment programme.
To fail to recognise the sexual element of preparatory offences would not provide justice for victims and would miss the opportunity to ensure the proper treatment of the offender. So, in accepting that it was a probing amendment, I hope that the noble Lord will take the opportunity to read what I have said and reconsider his position before Report.
I believe that the Government's intention with regard to Clauses 66 and 67 is good, but how will the intentions of the offender be discovered unless he admits it? For instance, trespass or breaking-in could be done for the purpose of burglary, although someone inside the premises could be a potential victim of a sexual offence. The matter is a little unclear.
It would be impossible for me to identify in every case how the intention has to be proved; but proved it must be. It could be proved, for example, by confession, by conversations with third parties before the event or by the equipment that the defendant brings with him. It could be proved in a whole variety of ways. It would be wrong for me to commit myself to that. It is not uncommon in the law that a particular intention has to be proved. It will depend upon the facts in every case. It must be proved beyond a reasonable doubt. But there needs to be evidence.
moved Amendment No. 333A:
Page 30, line 24, leave out subsection (1) and insert—
"(1) A person commits an offence if—
(a) he is a trespasser on any premises,
(b) he intends to commit a relevant sexual offence on the premises, and
(c) he knows that, or is reckless as to whether, he is a trespasser."
As I have indicated, our policy on the offence of trespass with intent to commit a sexual offence has always been that anyone who trespasses with the intention of committing a sexual offence in the place where he is a trespasser should be guilty of a sexual offence. That has not changed.
Amendments Nos. 333A and 333B, which are both government amendments, are designed to make sure that the wording of the offence at Clause 67 gives effect to that policy objective.
As currently drafted, the offence places a focus on the point in time when someone technically becomes a trespasser on the land where he intends to commit the sexual offence. That means that the prosecution would be required to prove that the defendant intended to commit a sexual offence at the point in time when he enters the structure or land as a trespasser.
We think that that could lead to arguments in court about the concept of entry and the point in time when it occurs. Proving that the defendant had a sexual intent at the specific point of entry as a trespasser would create unintended difficulties for the prosecution and could make it difficult to secure any convictions.
The other possible problem with the current version of Clause 67 is that it does not make it clear that the person who trespasses must have an intention to commit a sexual offence in the place where he is trespassing.
Our amendments will remedy both problems. The offence will be committed where the person is a trespasser, on land or in a structure or part of a structure, and knows or is reckless as to whether he is a trespasser, and at some point in time while so trespassing, he has the intention to commit a sexual offence in that place. I beg to move.
Again, to clarify for non-lawyers, does the need to separate "premises" from "land" in this way result in something that is universal? In other words, there is nowhere that a person can go that he cannot commit this offence, unless he happens to own or have a right of entry to that particular premises or land? In other words, if a farmer is wandering on his own land and then sticks his nose in someone else's tent, is he a trespasser in that tent?
How do the two interlock? Why do we have to define "premises" in this way? I am sure that this results from my ignorance of how the law of trespass works. Are we leaving something out? Is there an intentional leaving out of some part of the world that would not be covered by either "premises" or "land"? Is there something in which a person might find himself which would not be either? If one is faced with a structure which is on land, to which one has a right of access—but the structure does not belong to one, as would be the case with a temporary structure—is one a trespasser if one enters that structure?
Noble Lords are perhaps overcomplicating the matter. "Premises" means going on to someone's land or buildings without permission. Going into someone's car is not going into someone's "premises". I do not think that going into someone's tent on one's own land counts as "premises". However, I shall write and confirm that. We have set out the matter clearly in the Bill. There is nothing hidden, difficult or complicated about it. It is plainly intended to mean that if one goes on someone's land or into someone's building without permission, and the other elements are fulfilled, that is the offence we are trying to identify.
I shall speak also to the other amendments in the group. As my noble friend Lord Thomas of Gresford made clear in earlier amendments, we oppose a double reversal of the burden of proof. For example, in Clause 69 once the ingredients of the offence have been proved by the prosecution the burden shifts to the defendant to prove on a balance of probabilities that he did not know that he and the other party were related. If he succeeds, he may still be convicted if the prosecution then satisfies the jury, so that it is sure that the accused could reasonably have been expected to know. I find that confusing for a jury and dangerous. We adopt the approach of Clauses 33 to 42, where the burden throughout is on the prosecution to prove that the accused did know of the mental disorder or learning disability—or alternatively, that he could have reasonably been expected to know.
The amendment makes the matter simpler to understand and, save in the most exceptional circumstances, would produce the approach that the Government desire—that the knowledge of belief of the defendant must be reasonably based. We are forced to ask again why that approach seems necessary in cases involving sex with a relative. We are not looking for a particularly liberal approach but rather a consistent one. I beg to move.
The principles behind the amendments have been debated many times. I reiterate the support that we have given in the past to the Liberal Democrat amendments. We find the arguments compelling.
I will not weary the Committee by repeating the arguments. We say that if the accused says that they did not know the victim was a relative, then the accused must prove it on the balance of probabilities. If the accused does prove it, the prosecution must prove that it was unreasonable that the accused did not know. That does not cause much complication.
We have debated this matter many times and I have discussed it with practitioners. I have not yet found anybody who considers that the Bill sensibly amends the law. It is confusing and will remain confusing. I hope that the Government will take that into account when we debate the matter again on Report. I beg leave to withdraw the amendment.
The government amendments mean that the clause will cover a person who intentionally exposes his genitals in the knowledge or with the intention that somebody will see them and be alarmed or distressed. Being reckless as to whether alarm or distress will be caused will not be enough. As subsection (2) excluded recklessness with respect to behaviour within a dwelling, except when witnessed by children under 16, it is no longer needed.
A great deal of concern has been expressed, primarily by individual naturists and naturist organisations, that activities currently lawful might be criminalised. Although we believe those concerns to be unfounded, the Government propose to remove the lesser requirement of recklessness. I hope that will assuage such concerns.
The report Setting the Boundaries recommended that the offence be drafted in terms of exposure of the penis. Little evidence was found of female exposure in public and it was felt that the existing Public Order Act offence was sufficient. Will the Minister say whether there is any reason, other than an excessive dose of political correctness, for the formulation of Clause 70 in a gender neutral way?
If the clause remains as drafted, will the Minister say precisely what constitutes "genitals" for the purposes of the Bill? According to my dictionary, "genitals" means the reproductive organs of men—especially the external organs. That is straightforward, which is why the amendment would replace "genitals" with "penis". Existing law is admirably clear, although it uses the rather quaint term "person". I invite the Minister to say what parts of the female body the Government intend to treat as being within Clause 70.
I hope that the noble and learned Lord will specifically refer to female breasts. In Clause 71, breasts are specified separately from genitals—which tends to suggest that the draftsman believed that the latter does not include the former. When researching the matter at home using my husband's university textbooks—which I concede have been around a day or two—I found that the mammary glands, or breasts in common parlance, were classified as reproductive organs—and they are clearly external.
We will eventually reach government amendments to eliminate recklessness, which would overcome many of the problems with the clause if breasts were technically within it. There may still be an issue over whether exposure could cause alarm or distress. It is not absolutely clear that a woman breast feeding or sunbathing topless in public—thereby exposing her breasts—would be beyond the scope of the clause. Those activities are not universally approved of and if breasts are included, will it be necessary for a woman first to ensure that no one is within sight whom she knows might be alarmed or distressed? I emphasise that I am seeking clarity. I beg to move.
I know that my noble friend is trying to elicit clarification from the Government but if the amendment were accepted, it would prevent the offence being used against females who expose themselves. While that is uncommon, as my noble friend said, it is not unheard of. The amendment would unduly limit the law. It would be saying that the man and woman who paraded naked together in public could not be convicted of the same offence. Given that the Government are anxious that the Bill should be non-discriminatory, it would be strange to accept an amendment that discriminates between men and women.
The primary concern should be the protection of the public. A child may be as distressed by the sight of a naked woman in public as by a naked man. That child deserves to be protected. If Members of the Committee do not think that happens, there was a case in my area recently of a woman who deliberately exposed herself in a large picture window overlooking a boys' playing field. That case was considered locally but offence was certainly given.
Restricting the offence to one particular part of the male anatomy leaves out the rest of the external male genitalia. There may be a technical issue about what is reproductive and what is not. Is it possible that a male flasher who is sufficiently careful could conceal part of his genitalia while exposing another part—thereby providing himself with a technical defence to a Clause 70 prosecution?
That might sound absurd, but we must remember that there are people out there for whom exposing themselves is an obsession. They spend time devising ways of exposing themselves and they present a menace to the public. If we are properly to address the problem and to improve on the current law against "exposing the person", which suffers from the same defect as this amendment, we must not legislate in ways that can be evaded.
This is a serious problem that must be tackled in a serious way. Indecent exposure or flashing in public is a serious public nuisance which causes great distress and alarm. The victims are often young women and children. It also appears to be frequent. Almost daily one hears of such cases. It does not take long to find examples. A trawl of local newspaper stories since the Bill was introduced on 28th January turned up over 50 reported cases of flashing in England and Wales.
On the very day the Bill was introduced a man indecently exposed himself to a 10 year-old girl on a train. It was reported in the Sheffield Star on 5th February, which stated:
"The 10-year-old remains scared to venture from her house . . . after a man flashed at her as she sat with her mum".
The article talks of the girl's continuing terror, which has resulted in time off school. We can have a schoolboy giggle about these matters, but for some people the experience is extremely distressing.
Indecent exposure ranges from the flasher waiting in park and woodlands to those who expose themselves in busy town centres. For example, on 2nd April a shopper indecently exposed himself to checkout girls while paying for groceries at a supermarket in Swindon. Last month, a young woman was flashed at while sitting in a Burger King in Walthamstow. These are all traceable examples. Another woman was indecently exposed to by a young man as she travelled on a bus to Kingston at 9.50 in the morning.
Such examples are the tip of the iceberg. They emphasise that there is a problem that the new law must address. We need to look at ways of strengthening the provision, not weakening it. I know that my noble friend Lady Noakes is looking for clarification from the Government about how it will work in practice. My only plea is that if a woman is guilty of this offence, she should be as guilty as a man would be because she causes equal distress.
I appreciate that indecent exposure is characterised in people's minds as the flasher, commonly thought to be a male preserve. It is not beyond the bounds of the imagination to conceive of a situation where exposure of the female genitalia could be employed to alarm or distress someone. The noble Baroness, Lady Blatch, gave an example of the effect that might have on a young child. We do not think it right to make the provision apply only to men; therefore we do not think the amendment takes the right approach.
Female genitals do not refer to breasts, but to the external female genitalia. Male genitalia will include the penis, but it will also go beyond that, as the noble Baroness, Lady Blatch, mentioned. I believe that that answers all the questions raised.
I thank the noble and learned Lord for that extremely brief reply. He asserted that the definition did not include breasts, but I do not think that that is absolutely clear. I shall take the matter away and, in the interests of progressing this evening, beg leave to withdraw the amendment.
My concern in this part of the Bill has always been to protect naturists going about their perfectly harmless business and to prevent their falling foul of over-zealous police officers and magistrates. In that respect I greatly welcome government Amendments Nos. 343A and 348A. My amendment should also protect naturists from mischievous members of the public who might seek to use Clause 70 as a defence against accusations of voyeurism.
I do not practise naturism but I can certainly imagine its attractions. The human body is nothing to be ashamed of, and we must ensure that we are not over-prescriptive in what we allow people to do, either in private or in the company of other consenting, like-minded people. Exposing our skin to the sun and air is something we all like to do to a greater or lesser extent, especially when the sun shines and we are on a beach. It is estimated that there are about 1 million naturists in Britain. They enjoy swimming, walking, sports and gardening while returning to the way they were born, unencumbered by clothing. In other parts of Europe there are many millions more.
There has been considerable concern among the naturist community about Clause 70. I am delighted that the Government have responded to it. Unless the Bill is amended, naturists run the risk of having their names added to the sex offenders' register and facing up to a two-year sentence. As one of them put it in a letter to me:
"There needs to be a clear distinction between those who enjoy nude recreation, which is harmless, and that which is unsuitable in any public place, even a beach on a hot day".
My amendment is simple and consistent with the wording in other parts of the Bill. The words,
"for the purpose of obtaining sexual gratification", appear elsewhere where there is a need to clarify that an offence is committed only when this caveat applies. Amendment No. 346 is not quite as clear. Adding the words, "the exposure is sexual," does not indicate the intention or mens rea of the person committing the exposure. Using those words in the Bill, an innocent activity could be interpreted by others as being sexual when it is not. I therefore prefer my own wording or that of the Minister to that proposed by the noble Baroness, Lady Noakes. I beg to move.
I welcome the Government's Amendments Nos. 343A and 348A, which are in this group. It shows that they have listened to the concerns expressed about Clause 70, in particular by naturists but also by artists' models. The noble Baroness, Lady Walmsley, outlined naturists' concerns. I am sure that the Minister knows that many have taken the trouble to write to noble Lords who are taking part in the debates on the Bill. Naturists are a minority who intend no harm to others and simply want to be allowed to practise their way of life in a law-abiding way.
I am pleased that the Government have removed the element of recklessness from the offence, but I have a residual concern about Clause 70 as it will stand after the government amendments. Unlike the rest of the Bill, it does not deal with a sexual offence: it does not directly or indirectly refer to a sexual act. That partly lies behind the amendment in the name of the noble Baroness, Lady Walmsley.
One could say that using the word "genitals" implies some form of sexual activity, but that cannot be the case as a matter of construction. That is why I tabled Amendment No. 346 to require the exposure to be sexual. I have not required the intention to be sexual, as the noble Baroness, Lady Walmsley, prefers: I am making sure that the act of exposure is in itself sexual. That problem may remain after the Government's amendments to remove the recklessness element.
I shall use the example of a naturist on Brighton's naturist beach to illustrate my concerns. By way of background, British Naturism commissioned a public opinion poll in 2001 that found that, although the vast majority regarded naturists as harmless, 2 per cent regarded their activities as criminal and 7 per cent thought them disgusting.
Let us consider the effect of the Bill after the Government's amendments for a naturist on the naturist beach in Brighton, which I am told exists. A naturist intentionally exposes his genitals; that is what naturism involves. He knows that someone will see them because, I understand, the naturist beach at Brighton is not especially well screened from the rest of the beach. He also knows that a person who sees them may well be caused distress, because the person may be one of the 7 per cent and the naturist knows that if one of them is there and sees his genitals, that person would be caused distress.
When we discussed the previous amendment, I raised the case in relation to women either breast-feeding or sunbathing nude. If breasts were included, the same question would arise of whether that activity, even if it could distress only a minority of people, would still fall under the clause, because it is not limited to sexual acts, unlike the rest of the Bill, which deals with sexual activity in one way or another.
So how can the Minister be sure that by removing recklessness, he has in effect produced the protection that is required, which could easily be achieved by including an amendment such as mine in the Bill?
I support the amendment; it is wholly essential. What happens if an elderly gentleman gets caught short in his motor car on the way home? First, he intentionally exposes his genitalia to spend a penny. Secondly, he knows that someone will see him, if he happens to be in an urban area. Thirdly, he knows not only that the person who sees him will be caused distress, but that he himself will be caused distress.
We must take on board the point made by my noble friend Lady Noakes: the intention must not be to expose one's genitalia when one gets out of a car to spend a penny; it must be in some sexual context. The amendment would save the old gentleman. I wholly support it and I hope that the noble and learned Lord will treat this rather jocular intervention somewhat seriously.
I have tabled three amendments in this group, although in fact I would be delighted if the Government were to accept the amendment moved by the noble Baroness, Lady Walmsley, which, I think, really deals with the problem at its heart.
We are here trying to deal with flashers—disgusting characters they are; I have come across them on too many occasions. We are not trying to deal with someone who for some other reason exposes his genitals. I would especially cite in this context the streaker. I do not want someone who streaks at a Lord's cricket match stuffed on the sex offenders' register. That is not a sexual offence; it may be due to a bit of alcohol and exuberance; but it has nothing whatever to do with intentionally offending the public.
If the Government do not want to pursue that route, there are other points that I wish to make and that are made by my amendments. First, I do not see that the law has or should have any part to play in what happens in a person's private dwelling house, so I would like the words, "in a public place", inserted. Secondly, we should require that someone knows and intends that someone should be caused alarm and distress. There must be a guilty mind, an intention to cause distress. Just because your maiden aunt, whom you know shrieks at the sight of a naked ankle, happens to see you and you know that she happens to be around should not stop you sunbathing in the nude in your own garden if that is what you want to do. My third amendment does a bit of what the Government are doing, but more largely and successfully. I am delighted that they are doing it, but they have not gone far enough.
I support my noble and learned friend's Amendments Nos. 343A and 348. I am delighted that he has paid attention to the letters that I know that all of us who have played a part in the Bill have received. Indeed, I must say that the naturists have conducted a superb campaign. They have made their points forcefully with superb individual letters. Few of us who have been on the receiving end can have received as large a post bag on many issues.
What is unfortunate is that they felt it necessary to do so in the first place. I know that others have said it at other stages, but I am bound to say that if the Bill had received proper pre-legislative scrutiny, we should not have alarmed a law-abiding group who, frankly, did not deserve to have to make the effort that they have to put right something that should have been made plain at the outset in even the most preliminary draft Bill.
That said, clearly we all accept that there is not only an offence but one that needs to be redefined. The noble Baroness, Lady Blatch, has referred to the prevalence of that offence; in my experience both personally and at the Bar, those that are reported and prosecuted are only the tip of the iceberg. There can be few youngish women who have not at some stage had experience of it, often running into double figures.
Mostly, they ignore it, because it is a fact of life late at night, especially when women are on their own or travelling alone. It can sometimes be shrugged off and ignored or treated as a joke, especially in company; but, equally, it can be extremely frightening late at night and extremely worrying for young people. It must be dealt with.
I hope that we will receive some guidance from my noble and learned friend. If I may say so, the question asked by the noble Lord, Lord Campbell of Alloway, about the elderly gentleman being caught short, is a defence which, as a member of the Bar, I have run on many occasions when defending people in such circumstances. It is very difficult to prove what is in the mind of the person accused of the offence.
I hope that the Government will state that, where there are instances of streakers, such as those referred to by the noble Lord, Lord Lucas, they do not intend to use the Bill to deal with such an offence. The clause should be clearly aimed at people who cause distress late at night to women on their own or in circumstances in which they are away from others. I hope that my noble and learned friend can at least make that clear. I think that his amendments fit the bill, providing that he can assure us that they are intended to deal with those nuisances. After all, on the whole—I have not come across one exception to this—they are offences committed by inadequate men. That is the truth of it.
Not for the first time, I fear, I find myself speaking alone on the Bill. The Government's new proposals for this offence are a retrograde step. They will radically weaken the protective element of the offence. I regret that.
I touched briefly on the scale of the problem of indecent exposure when I addressed Amendment No. 343, tabled by my noble friend Lady Noakes. That is a serious problem that requires a serious law to address it. I was therefore keen to keep Clause 70 as drafted in the Bill.
Clause 70 is currently a good attempt to deal with that social nuisance and certainly could not be said to be casting its net too widely. It requires, first, evidence of intentional exposure of the genitals; secondly, an intention or knowledge that someone will see the exposure; and thirdly, an intention, knowledge or recklessness that it will cause alarm or distress. The example cited by my noble friend does not fall into any of those categories.
If anything, rather than being framed too widely, I am concerned that the "alarm or distress" test could be interpreted too narrowly by the courts. It is easy to imagine defence lawyers pushing the test of what is genuinely alarming or distressing to the margins by pseudo-sociological claims that the public is more tolerant of social nudity. We now find, however, that the Government are capitulating to pressure from nudists and making the test even harder. Whereas under the current wording a conviction can be secured where a person is "reckless" as to whether he causes alarm or distress by exposing his genitals, Amendments Nos. 343A and 348A raise the bar and require that he intended to cause alarm or distress, so causing alarm or distress would not be enough on its own.
Proving that intention may be extremely difficult. A man may stroll naked along the high street and enter a supermarket—it has been done—terrifying children and families as he goes, but if he can prove that he had no intention of causing alarm or distress he will be acquitted. Certainly government Ministers seem prepared to go a long way in defence of those who expose themselves in public.
In his evidence to the Home Affairs Committee on 29th April, Home Office Minister Hilary Benn made it clear that he did not wish to see this offence restricting the activities of naturists or activities such as the mass display of public nudity which took place just across the river at the opening of the new art gallery in County Hall. The White Paper which introduced this Bill is entitled Protecting the Public, but here the emphasis seems to have shifted towards protecting those who wish to expose themselves in public. Mr Benn told the committee that,
"there is a world of difference between a streaker at a football match where it is quite hard to say that alarm or distress would be caused and somebody who exposes themselves to a woman when they are alone in a railway carriage".
I agree that there is a difference, but if the streaker runs in front of a stand containing dozens of schoolchildren or only yards from a young child and her mother at their first ever football match, should not they also be entitled to some protection? Interestingly, Mr Benn rejected calls for an amendment along the lines of Amendments Nos. 344 and 346, adding that a test of the exposure must be,
"for the purpose of obtaining sexual gratification".
"What matters and what should matter in relation to this offence is the alarm or distress that is caused to the individual rather than the particular motivation".
Surely that marks a great inconsistency in the Government's approach. On the one hand, a Home Office Minister says that the alarm or distress caused is the key factor. On the other hand, the Minister is today moving an amendment which requires proof, not that alarm or distress was caused, but that the perpetrator intended to cause distress, a much more difficult test. Even if that was in fact alarm or distress, it will be a defence to say that it was not intentional. Presumably even a total lack of regard for whether anyone would be distressed is not enough, since that would be mere recklessness. In his evidence, the Minister volunteered the fact that the common law offence of outraging public decency would operate as a fallback if an incident of public nudity was not caught by Clause 70.
I shall speak briefly on the common law offence when we reach Clause 74. Suffice to say that it is a most unsatisfactory law with a very high test and a very low conviction rate. In practice, that means very low sentences. I am more concerned about where these government amendments will leave us.
There are people who claim to be quite serious about nudity as a form of political expression. They would argue that they had no intention of causing alarm or distress. An infamous example is that of Mr Vincent Bethell. According to one newspaper report, he had previously been diagnosed as a paranoid schizophrenic. It is clear that he is a man in need of help. He has been convicted repeatedly for stripping naked in public, something he claims to have done around 40 times, including in front of Parliament and Downing Street. He insists that it is all part of a campaign to urge people to get in touch with their humanity and to be less self-conscious about their bodies. Under the new wording, would Mr Bethell still be convicted? I think not.
Earlier this month, 160 people posed naked outside County Hall in the name of art. Under the new wording, it is difficult to imagine that the police could prove any intention whatever to cause alarm or distress on the part of those people. If scores of schoolchildren had been crossing Westminster Bridge at the time and their teacher lodged a complaint with the police, would the new wording offer any protection? Again, I think not.
Then there are the naturists. On 8th April, the chairman of the Central Council for British Naturism gave evidence to the Home Affairs Committee about Clause 70. He complained that, to some, naturism is,
"a very moral and proper way of life".
He even went so far as to call it "a family activity". He said that he did not want naturists criminalised by the new offence and called for an amendment similar to the ones being proposed here.
When Mr Hilary Benn gave evidence to the same committee on 29th April, he said that Clause 70,
"is not in any way intending to criminalise naturists".
It is clear that these amendments are designed to give effect to that reassurance. But does he really mean that he does not wish "in any way" to criminalise naturists; that is, not in any circumstances? What if scores of them invade a public beach? What about those who cause the National Trust endless difficulties because they insist on exposing themselves on public land? Are the Government creating a kind of "nudists' charter"?
I shall comment briefly on the other amendments in the group. Amendment No. 349 deletes subsection (2). Although the Minister's name is not added to it, I assume he will adopt it since his own amendment, Amendment No. 348, does not make sense unless subsection (2) is removed.
Amendments Nos. 344 and 346 would also severely restrict the usefulness of Clause 70. Amendment No. 344 requires proof that the perpetrator intended to obtain sexual gratification from exposing himself. Amendment No. 346 similarly requires that "the exposure is sexual". Requiring proof that the perpetrator had a sexual motive could impose an impossible burden on prosecutors in many cases. Courts may have to deal with spurious claims from defendants that they were exposing themselves for reasons of art, culture, personal freedom or for other non-sexual purposes. The amendment would guarantee that people like Vincent Bethell could go naked wherever they liked without fear of conviction since they could easily adduce evidence, in the form of pamphlets and past speeches, that there was no sexual motive to their exposing themselves.
If someone is, as it were, a bona fide naturist with no sexual motive for exposing himself, these amendments would give him a legal right to stroll naked in public places. In some cases, proving a sexual motive will require a form of mind-reading since the only person able to give evidence of the defendant's intention is the defendant himself. Furthermore, those who do have a sexual motive for undressing in front of strangers could quite easily make a false claim that they were naturists. This would present prosecutors with the difficulty of disproving their claim.
The fact is that most victims of this kind of exposure will not care about the motive. If a mother with young children is confronted in a shopping arcade by a naked man, causing confusion, distress and fear to her children, she will not care whether his motive was sexual. She will simply want to be able to tell her children that the police have arrested the man and that he will be punished for it.
Again, Amendment No. 345 would constitute an unnecessary restriction on the usefulness of this offence. It is a mistake to create a defence for the man who exposes himself somewhere which is not in itself a public place, but from where he can be seen by members of the public. For instance, would a man who stood naked in a shop window be able to escape prosecution under this amendment?
The effect of Amendment No. 347 would be to require proof that the defendant both "knows" and "intends" the consequences of his actions. This makes the mens rea for this offence more difficult to prove. Knowledge and intention are usually alternatives in criminal offences, the presence of either of which allow the court to conclude that there is a guilty mind. Confusingly, Amendment No. 348 appears to lessen the burden on prosecutors by deleting the requirement that there is knowledge or intention that his exposure will be seen.
As Members of the Committee will see, I have many concerns about these amendments. I have spoken at length deliberately because I think that the other side should be heard. I fear that the amendments would not improve the clause. Indeed, they risk substantially undermining its original effectiveness.
I am not a lawyer, but I rise to speak because I am rather bothered about the way this debate is going. Some of the examples that have been cited surely would be covered by public decency legislation, which I assume will not be altered by these amendments. I am a little perturbed, therefore, that we are seeking to bring in arguments that will not be covered by this Act but are already covered by public decency legislation.
I respectfully ask the noble and learned Lord whether, without commitment, he will give serious consideration to the reservations expressed in this group of amendments. Put simply, this is a sexual offences Bill. Clause 70 has nothing to do with sex. There is no sexual intention. There is nothing in the clause to involve criminal intent. With respect, the clause is a bit of a dog's dinner to find in a Bill such as this. Surely, if all that the provision as drafted means, without any qualification by these amendments, is ridiculous, unacceptable conduct, it is already covered by extant law. If I am wrong, will the noble and learned Lord correct me?
If this debate shows nothing else, it shows that naturists do know that some people will be caused offence by their actions. So knowing is perfectly respectable. Surely what really matters is the intention. A bona fide naturist would not intend to cause offence or harm to anyone, but I find that this clause is something of a muddle, with or without the various amendments that have been proposed.
With respect, I think that the noble Lord, Lord Skelmersdale, is wrong in regard to the clause. I think that we have got the balance about right. First, we are removing the recklessness requirement, so that the naturist will be guilty of an offence only if he knew or intended that what he did would cause alarm or distress. It will not be an offence because he knows—because he has no doubt read about the opinion poll referred to by the noble Baroness, Lady Noakes—that there is a proportion of the population who, to use the phrasing of the opinion poll, find such actions disgusting. That would not, as a matter of law, make it a criminal offence, because he would not know in the circumstances that "alarm or distress" would be caused—which is the wording of the offence. "Recklessness" is about a risk. Knowing or intending that alarm will be caused is about actually knowing the facts.
So far as concerns the example given by the noble Lord, Lord Campbell of Alloway—namely, if someone in the circumstances posited does what he described entirely because the necessary call of nature required it, without intending to cause alarm or distress—contrary to what the noble Lord says, the person would not know that alarm or distress would be caused. That would be not caught either. So I think that we have covered the two situations that noble Lords have raised in relation to the alleged problem in our draft. That is why we have done it in this way. We take out the dwelling-house exception, because we have removed recklessness; so we support Amendment No. 349. My name has not been added to the amendment, although that was my intention because it follows what we are trying to do. The amendment removes subsection (2).
The noble Lord, Lord Lucas, wants to remove the recklessness option, and we are with him in that respect.
Amendments Nos. 344 and 346 seek to make the offence apply only where the exposure is sexual or the motivation is one of sexual gratification. The noble Lord, Lord Campbell of Alloway, supports that because he says that this is a sexual offences Bill. We oppose it for the following reasons. Of course, where exposure is deliberately done manifestly for sexual gratification, that will be potentially enormously distressing and will cause alarm or distress to the victim. So it is plainly covered already. But there is no doubt that exposure that has as its purpose to alarm or distress can be no less frightening, irrespective of whether there is no explicitly sexual motive behind the action. It is not impossible to recognise and imagine that there are cases where the purpose of the act is to frighten and terrify with no sexual motive. It is that kind of occasion that I believe all noble Lords would wish to cover. What they would not wish to be the result of the proposed amendment is a difficult debate in court about whether or not the motivation for what was unquestionably on the facts a deliberately alarming and frightening occasion—whether or not the motive was sexual gratification—and, the prosecution having failed to prove that it was for sexual gratification, the defendant being acquitted. I agree with the noble Baroness, Lady Blatch, that this would be putting in place an unnecessary hurdle which does not reflect the reality of what happens.
The noble Lord, Lord Campbell of Alloway, asks what happens if it is not sexual motivation, given that this is a sexual offences Bill. It is ridiculous in terms of the law to chop this provision and put it in one place because there is a sexual motivation and in another where there is no such motivation. One has to be sensible about the way in which one creates offences.
I cannot let the noble and learned Lord get away with that. He defended the Government's stance on the Bill on the previous day in Committee, when we referred to trafficking for labour. He agreed with me that it would impugn the purity of the sexual piece of the Sexual Offences Bill.
With respect, what we are talking about here in relation to exposure is the alarm and distress that is caused to people. It has plainly, if one looks at it in laymen's terms, a sexual element. What we are talking about, however, is the definition of the offence. If the noble Lord is seriously suggesting that one puts in sexual gratification as a necessary requirement of the Bill, with great respect to him I think that he is failing to catch what may be a very serious element of exposure and, as it were, leaving in only the matters that might otherwise be described as less important.
I take what the noble and learned Lord says, but will he accept, as I accept, that the amendments provide a number of defences for someone who is offensive and is causing great alarm and distress—and it may be almost impossible to prove that it was for sexual gratification; nevertheless, the severity of the alarm and distress is very real?
In the circumstances I am positing, where there is exposure which causes alarm and distress and in the threatening manner I have described, of course the court must look to see what the intention was—whether it was inadvertent or not—but I should have thought that on the facts posited it would not be difficult, assuming that those facts were proved, for the court to come to the obvious conclusion that it was done with the intention of causing alarm or distress.
In every case there will obviously be difficulties about identifying precisely what proof is required—I do not mean in relation to each individual case, but as regards every offence there will always be circumstances in which a defence can be run. But if it is clear that what this provision is designed to catch is people who knowingly seek to cause alarm or distress or intend to cause alarm or distress, that is the area that all noble Lords wish to cover. I believe that we have dealt with that adequately.
The noble Lord, Lord Lucas, suggests in one of his amendments that the provision should be restricted to a public place. With respect, we disagree. Think of the circumstance where someone comes into your house for some legitimate reason and then deliberately exposes himself to you. We have got rid of the problem about the casual guest by getting rid of subsection (2), but I can imagine terrifying circumstances in which, within a house—which is not a public place—this is a way of threatening or frightening someone. So, again, understanding the perfectly reasonable motive behind the amendment, we do not think that it is appropriate.
Finally, do we intend to catch the streaker? No, we do not. Do we intend to catch the naturist? No, we do not. Are we creating a nudist's charter? No, we are not. We are simply saying that being a naturist is not of itself a criminal offence.
I am much comforted by the noble and learned Lord's remarks, but will he clarify one point? If I were to drive at speed down the wrong side of a motorway, might I reasonably say that I did not know that I would cause an accident? In other words, in order to show that someone knows something, it must be shown that that person has actual knowledge, rather than just that he or she ought to have known that an action was likely to cause an accident. The wording is quite strong in that context. A great many of our fears can be dealt with by saying that he did not actually know rather than that it ought to have been obvious to him.
The other thing that might comfort my noble friend Lady Blatch is that if the noble Baroness, Lady Walmsley, is right about the number of naturists in this country, there ought to be 10 of them in this House. One wonders who they are.
I am not sure whether that would be of any comfort to the noble Baroness, Lady Blatch, although that might depend on who the 10 were. As for "knows" it means that a person knows that what he is doing will cause alarm or distress.
Before the noble Baroness, Lady Walmsley, decides what to do with her amendment, I should like to say that while I would welcome the noble and learned Lord, Lord Falconer of Thoroton, adding his name to Amendment No. 349, I suggest that he does not need to do so because his Amendment No. 348A achieves the same effect.
I very much welcome the removal of "recklessness" from the clause, but I am still not convinced that there is adequate protection for people such as naturists, streakers and artists' models in what the noble and learned Lord proposes. I do not intend to press the amendment at this stage. I shall read carefully what has been said. It is very important that we do not put in barriers to getting a conviction where we should get one. There needs to be a balance between that and overly risking the criminalisation of perfectly innocent people. It is a question of looking at the balance of the two in the Bill and coming to a conclusion. For the moment, I beg leave to withdraw the amendment.
I have already spoken to this amendment. I confirm that the noble Baroness, Lady Noakes is, as ever, completely right. Amendment No. 348A does the trick and therefore I do not need to support Amendment No. 349, much as I would like to. I beg to move.
moved Amendment No. 350A:
Page 32, line 13, leave out subsections (1) to (3) and insert—
"(1) A person commits an offence if—
(a) for the purpose of obtaining sexual gratification, he observes another person doing a private act, and
(b) he knows that the other person does not consent to being observed for his sexual gratification.
(2) A person commits an offence if—
(a) he operates equipment with the intention of enabling another person to observe, for the purpose of obtaining sexual gratification, a third person (B) doing a private act, and
(b) he knows that B does not consent to his operating equipment with that intention.
(3) A person commits an offence if—
(a) he records another person (B) doing a private act,
(b) he does so with the intention that he or a third person will, for the purpose of obtaining sexual gratification, look at an image of B doing the act, and
(c) he knows that B does not consent to his recording the act with that intention."
Government Amendments Nos. 350A, 351A and 352A reframe the offence of voyeurism at Clause 71. It is a new offence, so we are concerned to achieve as good a definition as possible. The amendments revise subsections (1), (2) and (3) of Clause 71 as drafted, include a minor amendment to subsection (4) and provide a new interpretation clause to follow Clause 71.
On reflection, we had concerns that the offence as drafted in subsection (1)(a) criminalised those who looked at a moving or still image recorded through voyeuristic means. We thought there were problematic issues about criminalising simply looking at something unless it was an indecent image of a child which is already, in certain circumstances, against the law. It would often be difficult to establish whether that person knew that the person in the image did not consent to the image being recorded or viewed unless, of course, the author was responsible for recording the image. But the offence could potentially have caught readers of pornographic magazines, which seemed to us to be going too far.
These amendments remove from the offence completely the provision relating to looking at an image. They mean that the offence would then cover in subsection (1) a person directly observing, for his own sexual gratification, another person doing a private act, knowing that other person did not consent. This would include, for example, looking at someone having sexual intercourse through a window or peephole where the observer knew the person observed did not consent to being looked at for this purpose and where the observer looked in order to gain sexual gratification. This was already an offence under Clause 71 as drafted.
Subsection (2) would cover a person operating equipment with the intention of enabling someone else, for their sexual gratification, to observe a third person doing a private act where the operator of the equipment knew that the person being viewed did not consent to it. This would cover, for example, a landlord operating a webcam in his tenant's bedroom to allow people on the Internet using a pornographic website to view, for their sexual gratification, live images of his tenant getting undressed if he knew that the tenant did not consent to being so observed.
Subsection (3) would cover someone recording another person doing a private act with the intention of looking at the recording for his own sexual gratification or intending other people to look for their sexual gratification where he knows that the person does not consent to the recording of that act with that intention. This would cover the person who secretly films someone masturbating in their bedroom and distributes the images to others for their sexual gratification. Proof that the intention was the sexual gratification of others could be derived from, for example, the fact that the image was posted on a pornographic website or in a pornographic magazine.
In contrast to Clause 71 as drafted, the person recording the image would be caught by the offence, whether or not those looking at the image know that the person filmed does not consent to the image being shown for the purpose of sexual gratification and did not consent to the filming. The offence would not catch anyone who published the image because we feel this strays too far from the nub of the offence, which is the covert observation, for the purpose of sexual gratification, of someone engaged in a private act.
Subsection (4) of the offence remains as drafted in the Bill except for the removal of "or operates" in line 34. The operation of equipment is now covered for live observation by the offence at subsection (2) and for recorded observation by the offence at subsection (3). Subsection (4) covers a person who installs equipment, or constructs or adapts a structure or part of one with the intention of enabling himself or another person to commit an offence under subsection (1). This would cover someone who, for example, drilled a spyhole or installed a two-way mirror in a house or made a hole in the canvas of a changing room in a market stall selling clothes with the intention of spying on someone for sexual gratification or allowing others to do so. The person who installed the equipment would also be caught even if the peephole or mirror was discovered before it was used.
Subsection (4) does not cover a person who installs equipment with the intention of enabling a person to commit an offence under subsections (2) or (3). We consider that an offence of this nature would be too complicated. A jury would have to consider whether a person installed equipment with the intention of enabling another person to record a third person doing a private act with the intention of enabling a fourth person to obtain sexual gratification from looking at the image. However, if a person installs equipment in such circumstances, he may still be guilty of conspiring to commit a subsection (2) or (3) offence or of aiding and abetting such an offence.
The new clause after Clause 71 offers interpretation to the terminology used in Clause 71. With one exception, this interpretation is the same as that already in the Bill as drafted but has simply been moved to a new stand-alone clause for the purposes of clarity. The one exception is that there is now a definition of "observation", which makes it clear that observation can cover non-direct observation, for example, where a person observes another by using a mirror.
I apologise for the length and, to some extent, the complexity of this explanation, but I think it is of value to the House that I describe the amendments in some detail. I beg to move.
In describing the amendments, the noble and learned Lord used the words "engaged in". I am not sure if it is normal drafting, but in Amendment No. 352A, under the proposed subsection (2) a person has to be "doing a private act" rather than being engaged in a private act. Is this normal drafting terminology? It strikes me as a little strange.
Amendment No. 351 is separately grouped on the groupings list, but it will be pre-empted if the government amendments are passed, as I expect that they shall be since we have no major problems with them. I wish to speak to the amendment, however, so that my concerns are on the table.
The amendment would not fit in today, but I may wish to return to it on Report. It again relates to the concerns of naturists and how they are covered by the new offence of voyeurism. The offence of voyeurism means a "private act" under the current subsection (2). There is no requirement for the exposure to be sexual, but it must be in a structure. Naturists, however, whether within or outside of structures, have a problem with peeping Toms. The essence of naturism is that naturists are often outside, often on their own land and screened as far as they are able to keep people from looking in, as they have no desire to be seen by people who are not in their own group.
The amendment is designed to capture those who are outside and in naturist areas, but subject to the unwanted attentions of peeping Toms. The concerns of naturists are to be able to operate in privacy and not be subject to peeping Toms. I hope that it is not too much out of order to speak to the amendment, but otherwise it would be pre-empted.
I wish to speak to Amendment No. 351. Again, I find myself out on a limb. Naturists have found many friends in this House. We know that they have areas that are properly set aside, usually away from the public gaze. However, my concern with the amendments, and especially with Amendment No. 351, is that a kind of naturists' charter is being established.
The amendment causes problems by making nudists a special category and by creating the concept of,
"a place in which social nudity is customarily practised".
It may be that social nudity is customarily practised on a very public beach, much to the annoyance of locals and holidaymakers who arrive at the beach, only to be confronted by dozens of naked people. I have already mentioned the problems on some National Trust land. Those people may be committing an offence under Clause 70, but if the amendment were accepted, the innocent passer-by who reported them to the police might find himself accused of being a voyeur, contrary to Clause 71.
The fact is that if nudism is genuinely private, its practitioners are already protected. Clause 71(1)(a) protects persons who are "doing a private act"—or "engaging" in one, as my noble friend put it. If, however, the act is public and itself constitutes exposure, it should not be protected. Indeed, it would seem remarkable—not to say impossible—to police, if a person could walk naked along a beach where nudists often gathered, then allege that particular passers-by were obtaining "sexual gratification"—in the words of Clause 71—from looking at them.
The offence as redrafted by government Amendments Nos. 350 and 352A, which have just been dealt with in a previous group, protects those who are naked within a structure, such as a building or a tent, where privacy can reasonably be expected. To extend that protection beyond the walls of a structure to any,
"place in which social nudity is customarily practised", could create a new legal right to social nudity. I am sure that that is not the intention either of the Bill or of my noble friend's amendment.
The noble Baroness, Lady Noakes, did not comment on my amendments. She spoke only to Amendment No. 351, which was not grouped with them, but I have no problem with dealing with it at the same time.
I am happy to speak about it.
The offence at present protects only those engaging in private acts in places where they could reasonably expect privacy, such as houses and structures of various sorts. The noble Baroness, Lady Noakes, is very unwise to suggest that it be extended in its coverage. No doubt some of those who engage in nude sunbathing or naturism would prefer not to be looked at by passers-by, especially when those passers-by are looking for sexual gratification. However, many of the places where such nudity is customarily practised, such as nudist beaches, are relatively easily overlooked. It would be quite wrong to criminalise those who witnessed such nudity while going about their daily business, even if they derived sexual gratification out of what they saw.
Those who choose to be naked in locations other than structures where they might reasonably expect privacy do so at the risk of someone seeing them and being sexually gratified. Those who engage in social nudity inside structures where they might reasonably expect privacy will be protected by the legislation. However, it would be imprudent to extend it. Therefore, I hope that the noble Baroness will be gratified that the amendment is about to be pre-empted.
That is a difficult question, and one that I shall take back to the parliamentary draftsman, as it would be unwise of me to deal with it myself.
moved Amendment No. 352A:
After Clause 71, insert the following new clause—
(1) The following apply for the purposes of section 71.
(2) A person is doing a private act if the person is in a structure which, in the circumstances, would reasonably be expected to provide privacy, and—
(a) the person's genitals, buttocks or breasts are exposed or covered only with underwear,
(b) the person is using a lavatory, or
(c) the person is doing a sexual act that is not of a kind ordinarily done in public.
(3) Observation means any observation, whether direct or by looking at an image produced in any way.
(4) In section 71 and this section—
"image" means a moving or still image, produced by any means, and
"structure" includes a tent, vehicle or vessel or other temporary or movable structure."
On Question, amendment agreed to.
Clause 72 [Intercourse with an animal]:
[Amendment No. 353 not moved.]
On Question, Whether Clause 72 shall stand part of the Bill?
I should very much like to understand the Government's motivations in the drafting of this clause. There are many things of a sexual nature that people choose to do in private and which most of us would find more or less disgusting. Intercourse with an animal is one of them, but it is one which in some societies is considered normal. As Masters and Johnson established, it is quite prevalent in parts of the country, especially in the countryside as such and among farm boys. They found a 50 per cent incidence in a bit of Ohio that they studied. It is not unknown or uncommon, certainly not in common parlance. To judge from the spam that arrives in your Lordships' House, a good deal of goes on in the world of pornography, too.
I want to know what the motivation is for making this particular sexual practice a crime. I cannot see that it has anything in particular to do with the human aspect of it—I imagine that it has to do with the protection of animals. I do not know whether the Minister has any evidence on the effect of this activity on animals. If the provisions relate to the effect on animals, why is it considered better that the sheep should be dead—should have been killed immediately before the act—rather than living through it? Why is that thought to excuse the act?
Why are animals such as gerbils excluded? The noble and learned Lord, Lord Falconer, may care to look up "felching" in his dictionary, or perhaps the box can do that for him. That is something that is widely referred to on the Internet and he will find it in such common books as the Darwin Awards. There, at least one incidence of that going wrong is amusingly recounted. I want to understand the Government's motivations. Why, among all human sexual perversions, is this one chosen to make an offence? Why has the scope of the offence been set as it is? I am asking so that I can understand better at Report stage how I would like the clause to differ.
At present intercourse with an animal is an offence under Section 12 of the Sexual Offences Act 1956, which also covers buggery and carries a maximum sentence of life imprisonment. We are repealing Section 12. We take the view that a specific offence is needed to cover sexual activity with an animal and should be separated from offences against people. Clause 72 covers intentional penile penetration of the vagina or anus of a living animal and makes clear that the offence also includes causing or allowing the penis of a living animal to penetrate a person's vagina or anus. That behaviour is generally accepted to be deviant. The offence is not included on the basis of cruelty to animals, which is dealt with in other statutes. We believe that it should be a criminal offence, but the previous maximum penalty of life imprisonment is disproportionate. We therefore propose a reduced maximum penalty of two years' imprisonment or a fine. That is our thinking. I hope that that answers the points raised by the noble Lord, Lord Lucas, and the noble Lord, Lord Monson.
I am still interested in why the Government think that committing that offence is different with a dead animal rather than a live one. Why should it be less of an offence if the man has killed the sheep just beforehand? Why should it be less of an offence if the animal involved is inserted as a whole object rather than part of the animal? I should like to hear the Government's justification of the scope of the offence and why it should have been phrased in this way.
It is the judgment made about the sort of conduct with animals which should be criminalised. We have drawn the line where we have drawn the line. There is no merit in saying that that is not this bad or that bad. What one has to do is see where we have drawn the line and ask whether we have done that in the right place.
I come at the offence from the same point of view. Why have the Government phrased the clause in this way? Is the offence something which happens often? How many prosecutions are there for that sort of thing? How many incidents are there in any given year? Is it something that is frequent enough to merit a separate offence? There are many things that one can do to dishonour a corpse. There was an incident recently when someone put a bacon sandwich into the mouth of a dead Muslim woman, which strikes me as a pretty ghastly thing to do. Surely we do not need to make that a separate offence. There are many ways in which one can mutilate and dishonour a corpse. I do not know which statute it is that they would be caught under. Why do we need a separate offence for something that is probably extremely rare, particularly given the fairly rare opportunities in our current society to commit that sort of offence? I should be grateful for the Minister's enlightenment.
There is currently no law that covers sexual penetration of a dead human body or part of it. That is a surprising omission from the criminal law, since it represents a violation of the respect that ought to be shown to human remains. When such behaviour comes to light it is profoundly distressing for the family of the dead person. Existing legislation covers exhuming a dead body without lawful authority, but there is no other protection for the body of the person once he or she is dead. Setting the Boundaries has anecdotal evidence that sexual penetration of dead bodies takes place, albeit in rare and unusual circumstances. It is impossible to quantify the extent of the behaviour, but that is not surprising when the law is silent on the issue. There is, however, no indication that it is anything other than extremely rare. As part of a comprehensive review of sex offences it is important for society to make clear which sexual behaviour is so profoundly deviant as to justify the intervention of the criminal law. The offence could be charged in relation to those who kill their victim and then sexually penetrate the corpse in addition to a charge of murder or manslaughter. It could also be charged against those who have had no role in the death of the individual but subsequently sexually penetrate the corpse.
The amendment concerns the issue of sex in public. We debated the issue extensively at Second Reading and many who spoke found defects in Clause 74. The Government have now said that they intend to withdraw the clause. To that end the Minister has added his name to the objection to the clause standing part, which is included in the group of amendments.
There is no doubt that Clause 74 is a bad piece of draft law, which is why we propose major amendments to it. I shall not weary the Committee with a detailed exposition of those amendments, but I should like to outline some concerns that are not necessarily eliminated by removing the clause and relying on existing Public Order Act offences and common law offences.
I believe that we share with the Government the desire to ensure that the law proscribes acts that have an impact on the public and are considered by the public to be unacceptable. The Minister will be aware that the comments made by his ministerial colleague in another place, Mr Hilary Benn, led many to believe that this was not the principle which guided the Government. Many believed that the Bill gave a green light to sexual activity in public lavatories provided it was not seen.
I believe that my Amendment No. 355 captures a general public sentiment which is that public lavatories are not places for sexual activity. If we say anything less than this, we imply that there are circumstances in which sexual activity in a public lavatory is acceptable. If there is anything less than a total prohibition, we run the risk of making public lavatories no-go areas for the general public and in particular for children. There are already instances of public lavatories being no-go areas or having to be closed because the existing law, which is not an absolute and explicit ban, is either not good enough or not enforced. Simply removing Clause 74 will do nothing to improve the situation.
The Minister's very helpful letter of 15th April notifying his intention to withdraw the clause noted that the existing common law offence of outraging public decency had successfully been used to prosecute cases of sexual activity in public lavatories. The Court of Appeal case of Mayling, which the Minister cited, established that sexual activity in a public lavatory could be an act which outraged public decency, but the activity had to be seen to be within the offence. The judgment stated that,
"it is, in the view of this court, clear that more than one person must at least have been able to see the act complained of if the charge is to be made out".
So there are two problems with the common law offence. First, sexual activity has to be seen. Secondly, two or more people must have been able to see it. For my part I am not convinced that that is a sound basis on which to leave the issue of sex in public lavatories. The current law is not adequate. In any event, it is not enforced so as to prevent public lavatories becoming no-go areas. That is why we need an absolutely clear prohibition in the law. I shall listen very carefully to what the Minister has to say about Clause 74. I welcome the fact that the Government have thought again about the subject, but I am not yet convinced that they have come up with the right answer. I beg to move.
This is one occasion when I am absolutely at one with my noble friend. I believe that the Government's U-turn will leave a serious lacuna in the Bill, which in my view needs to be filled.
The Government appear no longer to believe that there should be a specific offence of sexual activity in public. During the Easter Recess, it was announced to the press that Clause 74 was to be dropped and replaced with an amendment to the Criminal Justice Bill currently before another place. The amendment will make it possible to prosecute, in a magistrates' court, the offence of outraging public decency. Currently the offence can be tried only in a Crown Court, and thus it is meant to deal with the problem of sexual activity in public. One newspaper report also suggests that the public order offence of behaviour likely to cause a breach of the peace could also be used to deal with the problem. If this truly is the full extent of the Government's proposals in this important area of protecting the public, as my noble friend said, they have many serious questions to answer.
On Second Reading, the noble and learned Lord, Lord Falconer, introduced Clause 74 by saying:
"The offence will send out a strong signal of our intention to protect people from being the unwilling witnesses to overtly sexual behaviour in public that most people consider should take place in their own homes".—[Official Report, 13/2/03; col. 775.]
What has happened to the Government's strong signal? Although Clause 74 did raise various anomalies, I believe that the Government's general intention was right. Sexual activity in public is a real problem. In particular, as I shall show in a moment, there is a real problem with public toilets. The problem requires a specific statutory offence to tackle it. Instead the Government now propose to drop Clause 74 and fall back on the long-standing common law offence of outraging public decency. The common law offence is weak and difficult to prove. I shall outline the evidence of that later.
If it is true that the public order offence of behaviour likely to cause a breach of the peace is being proffered as a solution, that, too, inspires little confidence. According to the case summary, the 1982 case of Parkin v Norman found that,
"Offensive or disgusting behaviour by a homosexual in a public lavatory does not amount to 'threatening, abusive or insulting . . . behaviour . . . whereby a breach of the peace is likely to be occasioned' under Section 5 of the Public Order Act 1936".
I am not a lawyer, but it seems pretty clear to me that the public order offence provides no protection against sex in public toilets. I should be grateful to know whether the Minister really believes that we can rely on the public order offence to prevent sexual acts in public toilets.
In the absence of Clause 74, the weakness of the provisions on which the Government now claim to be relying is of especially great importance. This is because this Bill is repealing the law of gross indecency. Gross indecency will be removed from our statute book and nothing is to be put in its place. Gross indecency currently outlaws homosexual male activity in public toilets and elsewhere in public. It specifically addresses public toilets because this has been a serious public problem for decades.
In February this year, a five-day police operation targeting lavatories at Baker Street Station led to 34 men being cautioned for gross indecency. In January, Guisborough Police in North Yorkshire were forced to launch Operation Newton to patrol public toilets in their area.
The police said:
"The toilets have become a meeting den for gay and bi-sexual men, and the problem has escalated to such an extent that on occasions, cleaning staff cannot gain access to clean and close up the premises at night, due to the number of men 'using' them".
"Shocked Cawthorne residents had called for the toilets to be completely flattened after learning the block has appeared on a website advising men of the best places in England for 'cottaging'—casual homosexual sex in public toilets".
I have reports of similar problems in the toilets of Blackburn railway station and those of Aberdeen Central Library. The local press in Staffordshire have reported internet sites advertising public places across the county as venues for homosexual activity. All this proves that there is a great problem that needs to be addressed.
Although rare, there are also cases of heterosexual activity in public toilets. The case of R v Helen Georgina Waring in 2001 concerned an act of sexual intercourse with a man in a night club toilet cubicle.
We need a clear and effective law to tackle an identifiable problem. We need a specific offence that criminalises any type of sexual activity—heterosexual or homosexual—in a public toilet.
It was only in 1967 that gross indecency was specifically framed to outlaw homosexual activity in public toilets. The Government boast about sweeping away Victorian laws, but the specific law against acts in public toilets is less than 40 years old.
In 1967, at the height of the swinging 60s and when Parliament was in the throes of legalising homosexual acts in private, it was felt necessary to make clear that "private" did not include, according to Section 1(2)(b) of the Sexual Offences Act 1967,
"a lavatory to which the public have or are permitted to have access".
"the view was taken in another place that there should be included this special provision relating to public lavatories, which is obviously a social feature of homosexuality as opposed to the heterosexual act".—[Official Report, Commons, 3/7/67; col. 1453.]
"intended to cover a case where two men committed an act in a locked cubicle and it would clearly be objectionable if those two men were seen to enter the cubicle and their activities, though not seen, might well be thought to offend other persons who might be using the public part of the lavatory".
Outraging public decency existed as a criminal offence at the time of the 1967 Act. There was much discussion during the passage of the Bill about the offence. Yet it was still felt necessary to introduce specific provision for public lavatories. If outraging public decency had been adequate to tackle the problem of sex in public toilets, Section 1 of the Sexual Offences Act 1967 would have been unnecessary.
Clearly, Parliament at that time believed no other law existed that would suffice. So what has changed? First, the problem has not gone away. The Home Office sex offences review published in 2000 concluded:
"some public facilities are extensively used for sexual purposes, and the law needs to be able to deal with this problem as part of wider powers to deal with sexual activity in public".
In 2003, surely we still cannot rely on outraging public decency. It is a weak offence that appears to be difficult to prove. According to Home Office figures, 173 persons were proceeded against in England and Wales in 2001 for outraging public decency. Only 34 were found guilty. That is a 20 per cent conviction rate, which I believe is too low compared with many other offences.
We should bear in mind that outraging public decency is a broad offence that is not targeted solely at sexual activity. One of the most famous cases involved a so-called art exhibit that displayed earrings made from human foetuses. The offence could not be said in any way to be designed specifically to cover the sorts of situations that Clause 74 was targeting. It contains a high test. In the leading case of Knuller (Publishing, Printing and Promotions) Ltd v the Director of Public Prosecutions, the noble and learned Lord, Lord Simon of Glaisdale, said:
"'outrage' was a very strong word and 'outraging public decency' goes considerably beyond offending the susceptibilities of, or even shocking, reasonable people".
The noble and learned Lord went on to say:
"recognised minimum standards of decency . . . are likely to vary from time to time".
I am very concerned that some courts might regard this as a licence to stretch the bounds of acceptability. I have no doubt that there are defence lawyers who will willingly argue that moderate sexual activity in a public place is less likely to offend now than it was 20 or 30 years ago and so should not be regarded as outraging public decency.
Even if a conviction is secured, the offence appears to attract low sentences. Of the 34 people convicted of outraging public decency in 2001, only six were sentenced to immediate custody. Nineteen were given a community punishment order, two were fined and five were absolutely or conditionally discharged. Two were dealt with otherwise. There was an infamous example of a serious case that attracted a trivial penalty in 1998. A couple had full sexual intercourse on the bonnet of a car in the short-term car park at Terminal 4 at Heathrow Airport, followed by oral sex at four o'clock in the afternoon, all for the benefit of a film crew making a pornographic video. They were charged and convicted on two counts of outraging public decency and each received a conditional discharge for 18 months. There was evidence that around 6,000 cars a day passed through that car park. Several members of staff at the airport witnessed the offence and gave evidence that they thought that the behaviour was outrageous. Yet, the perpetrators walked away without so much as a fine.
An infamous 1992 case of sex in public seems to demonstrate the lack of confidence that prosecutors have in the concept of outraging public decency. A couple engaged in oral sex on a train packed with families and then, half-dressed, performed full sexual intercourse. A mother with her children complained, as did other people on the train. According to newspaper reports, the couple appeared before magistrates. Outraging public decency is an indictable offence, so whatever they were prosecuted for, it was not that. They received a paltry fine of £50 and £25 costs.
The Government protest that they are strengthening the treatment of the offence by allowing it to be tried in a magistrates' court. That case does not encourage one to believe that that will help. In any event, magistrates will have the same difficulty with proving the offence as the higher courts had. Nor will they feel able to ignore the sentencing precedents set by the higher courts. There needs to be a straightforward offence, like gross indecency, that applies specifically to toilets. Gross indecency simply requires proof that the act took place in a toilet. Outraging public decency demands proof that the act gave rise to outrage, a potentially difficult hurdle to overcome in any case.
Another peculiar weakness is the requirement for proof that the act complained of must have been capable of being seen by at least two members of the public. That was confirmed in the 1995 case of R v Walker. Prosecutors relied on the offence in prosecuting a man who masturbated in his living room in front of a 10 year-old girl. The Court of Appeal overturned his conviction, stating that the offence carried a requirement that,
"the offence be committed in a place where there exists a real possibility that members of the general public might witness what happens".
In our Second Reading debate on Clause 74, some noble Lords caused great mirth by talking about amorous activities on mountainsides, in back gardens and so on. The Government's U-turn on Clause 74 seems designed to rescue it from such attacks. The greatest anomaly of all was caused by the cubicle door of a public toilet. The great question was whether an offence would have been committed under Clause 74, if the door were closed or only if it were open. The Government's new policy continues to overlook the issue of the cubicle door. The greatest anomaly may well remain.
A Home Office spokeswoman said:
"It always has been and will remain illegal to have sex in a public toilet—regardless of whether the door is open or closed".
Can the Minister tell us why his officials are so confident about that, in spite of the evidence that I rehearsed today? Can the Minister explain how there could be two witnesses, if the cubicle door were closed? Even if the police have largely discounted the use of the offence of outraging public decency against sexual activity in public toilets, the Metropolitan Police's response to the Sexual Offences Bill called for sex in a cubicle of a public toilet to remain illegal. It did not even mention the possibility of falling back on outraging public decency.
On several occasions in Committee the Government have amended this Bill for the better. However, on the issue before us now they are not only failing to correct a weakness in their proposals but are actually making a situation worse. Unless the Minister can satisfy us otherwise, it seems that this Bill will leave a serious gap in the law as regards sexual activity in public. I regard the matter very seriously, as Members of the Committee will have gathered. I hope that we return to it at Report stage and that my noble friend's amendment receives some support.
I strongly support Amendment No. 355 in the name of the noble Baroness, Lady Noakes. At the same time I shall speak to Amendment No. 359, which seeks to delete Clause 74(2). It seems to me to be a very restrictive injunction worthy of the Government in nasty nanny mode and determined to interfere in every area of people's private lives. What constitutes a dwelling? Is an hotel bedroom a dwelling? Is a tent a dwelling? Is a sleeping compartment on a train a dwelling? Is a cabin on a ship a dwelling? Is the back of a car on a dark night a dwelling? I would hardly describe them as such, yet to prohibit sexual activity in any of them or indeed outside a building at all seems almost unbelievably puritanical and worthy only of the most bigoted ayatollah or the very nastiest nanny killjoy.
I suppose that it is easy for city dwellers to forget that there are huge tracts of virtually uninhabited countryside, woodland and moorland such as Dartmoor or the Highlands of Scotland, which, although now technically public places since the public are allowed to roam through them at will, are locations where young people have for centuries past pursued their romances which would not be possible in the family home.
Are all these people now to be in danger of fines or imprisonment should they have the misfortune to be seen? The clause should be deleted and replaced with one much more tightly drafted dealing with sex in public lavatories and public places which are populous such as public parks in towns and cities, railway stations and ordinary compartments of trains and so forth. It should not seek to criminalise the couple having a romantic interlude on a starry night on the moors.
I hesitate to rise at the mention of a cubicle door, gay sex, and a public lavatory. It is a little too much to resist. I concur with what the noble Lady, Lady Saltoun of Abernethy, said. I would certainly resist any extension of criminalising people for having consensual sex. We have to be very careful that we continue to do that.
I suppose that I am one of the few people who probably quite likes Clause 74 as drafted. I understand, however, that the noble and learned Lord intends to remove it and in doing so rely on Sections 4A and 5 of the Public Order Act 1986 and the common law offences of outraging public decency.
Would he consider giving me some reassurance in the interpretation of those offences? The reassurance I seek really relates to making sure that they are "sexuality neutral" in their interpretation. That would go a very long way to reassure those of us in the gay community that it would be safe to rely on these Public Order Acts and public decency definitions. We would hate to see a repeat of the 1986 case of Matheson v Holden, in which the Divisional Court held that the magistrates were entitled to decide that heterosexuals might feel insulted at seeing a gay couple kissing in Oxford Street at 1.55 a.m. An assurance that the law would not be interpreted so that an activity indulged in by a homosexual couple would be deemed offensive, despite having a publicly acceptable heterosexual equivalent, would go a long way to reassuring many of us that the removal of Section 74 from the Bill and the reliance on the Public Order Act and the common law offence of outraging public decency would achieve what I understand to be the Minister's objective.
My Lords, I rise to speak to Amendment No. 361 and to oppose the Question that Clause 74 stand part of the Bill. I am delighted that the Government have agreed with the Liberal Democrats that the clause should be removed from the Bill. They have clearly not got it right, as the noble Lady, Lady Saltoun of Abernethy, has just demonstrated.
However, I would like to talk about the issue that caused me to table Amendment No. 361, which attempts to ensure that a prison cell should be regarded as a private place for the purposes of the Bill. As I said at Second Reading, the Prison Service has a duty of care to those in its custody. That means that they have a responsibility to reduce harm wherever possible. We know that a great deal of homosexual sex goes on in prison. This carries with it an enormous risk of infection with HIV or hepatitis.
Unfortunately, the state of the law is uncertain and Clause 74 would have muddied the waters even more if it had passed into law unamended. The Prison Service says that sex in prison is unlawful, and they are unwilling to provide condoms, unless prescribed by a doctor, on the basis that to do so would be to condone unlawful behaviour. Many prisoners are unwilling to approach the prison doctor about this, and some doctors will not supply condoms anyway. It is left to charities to fill the gap.
Even if the clause is removed from the Bill, the situation will remain unsatisfactory. The Minister told me at Second Reading that the Prison Service is reviewing its policy on this issue. However, I would be grateful if he could make it clear from the Dispatch Box that the service's duty of care compels it to ensure that prisoners can obtain condoms if they need them. We cannot have cell-block prescribing in this area. It is important to protect the health of prisoners. It is bad enough to be given a custodial sentence without being given a health sentence as well.
As far as the whole clause is concerned, I accept that the Government's intention was to clarify society's view that there are some places where sexual activity is simply unacceptable, as it will cause offence. There has been considerable misunderstanding about the effect of the clause. Some thought that it would ban sex in public toilets, and some thought that it would allow it with the door closed.
I agree with the noble Lord, Lord Alli, that we must treat everyone, of whatever sexuality, equally under the law. Having said that, I do not believe that any kind of sex is appropriate in public toilets. They are public places, whether the door is closed or not, and sound carries. None of us wants to be witness to other people's private behaviour, and we certainly do not want our children to encounter adult behaviour unawares.
I welcome the Minister's statement in his letter on the matter that he is confident that the existing Public Order Act defences and the common law offence of outraging public decency are adequate to cover this matter. Everyone knows that the best way of discouraging sex in public toilets is to have them well lit, frequently visited by cleaning and maintenance staff and well used by the public. I hope that local authorities will, wherever possible, use this method to discourage unwanted bad behaviour, although I am quite aware that shortness of resources is an issue. Where offences do take place, the police should use the tools that they already have to address the matter.
I am aware that the Government intend to introduce an amendment to the Criminal Justice Bill in another place tomorrow, to make outraging public decency a summary as well as an indictable offence. My colleagues in another place will be exploring the effects of that change with the Government and I look forward with interest to the clarification that they will extract from Ministers there.
We do not want police officers to continue to act as agents provocateurs. We would like there to be a warning if a particular public toilet was causing concern to the public. A warning notice could be displayed in the same way that there are warnings about radar cameras. If people then choose to ignore the warnings, they should accept the consequences. We will return to this matter when we debate the Criminal Justice Bill.
I am a liberal and I believe in freedom and responsibility. In a free country, consenting adults should be able to do as they please in private, so long as they do not frighten horses. However, I should put sex in public toilets into the category of frightening the horses—or at any rate, the children. We should discourage it in a sensible and effective way without trespassing on the reasonable freedoms of other people. I therefore oppose the Question whether Clause 74 stand part of the Bill and look forward to the Minister's response to my concerns about condoms in prisons.
As is obvious, I have added my name to those opposing the Question whether Clause 74 stand part of the Bill and will gladly explain why I have done so. Before I do that, I shall take up three points. The first point is about sexuality and neutrality in relation to enforcement, whatever the offences; we strongly support that. I hope that the noble Lord, Lord Alli, and the noble Baroness, Lady Walmsley, are reassured by that. Secondly, the points made by the noble Lady, Lady Saltoun of Abernethy, indicate some of the problems in the current draft of Clause 74. Thirdly, on the Prison Service's approach to condoms, the precise definition in Clause 74 does not affect what the policy is. I shall not go further than that at the moment; we are discussing the Sexual Offences Bill rather than wider prison policy.
We believe that sexual activity in public places, which we agree entirely includes public lavatories, can cause outrage or offence to those who witness it or become aware of it by other means, such as hearing what is going on. No one should have to witness or experience such activity as they go about their daily business. Our aim has always been to ensure that the law provides sufficient protection from such behaviour, which everyone in this House feels should take place in private; that means "not in a public lavatory".
Setting the Boundaries proposed a new additional public order offence, as the noble Baroness, Lady Blatch, identified.
I agree with the Minister's comments. Heterosexual activity or homosexual activity that takes place in a public lavatory, that is not witnessed and that does not outrage public decency when the event takes place, is still an offensive activity. I link that with the point made by the noble Baroness, Lady Walmsley, who said that one way of eliminating the behaviour was to have such places well lit, to visit them frequently and to make sure that the public use them. However, whether they are well lit and clean, and whether the cleaners can go near them in view of the sort of people who use them, they are not used by the public because of the reputation surrounding them and because a meeting place is established around such public places. Must the people offend on the spot or are they deemed to be offending the public—outraging the public—simply by having sex in a public toilet, although the act was not witnessed, heard or overseen by anyone?
It is our view that that does not have to be witnessed on the particular instance so long as it is capable of being witnessed or seen; that includes being heard.
The noble Baroness seeks to address me from a sedentary position, which is not normally how she addresses me. On the offence of outraging public decency and in relation to public order offences, what is being referred to is the capability of being seen or the capability of causing offence. The noble Baroness shakes her head. Consider the situation in which no one else was there but acts of the sort that she described were filmed on CCTV. Could that found the basis of a charge under outrages against public decency or Section 5 of the Public Order Act? We say "Yes". That view is shared by Messrs Smith and Hogan, the authors of the leading textbook on criminal law. I hope that answers the question of the noble Baroness. She shakes her head. I have tried to do my best in relation to that.
Setting the Boundaries, as I indicated, proposed a new additional public order offence. It was intended to complement existing legislation, principally that in the Public Order Act 1986 and the common law offence of outraging public decency. However, Clause 74 was problematic because it required proof that one of the sexual acts specified in Clause 74(3) was involved, which meant—for the purposes of proof, subject to the CCTV point—that generally the specific activity would need to be observed. I do not criticise the amendment of the noble Baroness, Lady Noakes, but it incorporates all the subsection (3) acts, so it gives rise to precisely the same problem.
Moreover, following publication of the Bill, there was a perception that Clause 74 was intended to be the sole means of dealing with sexual activity in public and that its provisions, therefore, needed to cover comprehensively all such activity.
A number of amendments have been tabled by noble Lords to change the framing of the clause. These do not in our view solve the problem with Clause 74 because—and the noble Baroness has precisely put her finger on it—what about the closed cubicle door? That is exactly the problem with which everyone seeks to deal. It is difficult to know from hearing noises which act specified in Clause 74(3) is taking place. That is the problem with our draft and with all the amendments.
In the light of the confusion, we have decided that the best way forward is not to proceed with Clause 74 but rather to rely on the existing common law offence of outraging public decency which covers all lewd, obscene or disgusting behaviour that outrages public decency. It focuses, therefore, on the broad nature of the behaviour and on the impact it causes, rather than on technicalities. Currently, as has been pointed out, it is triable on indictment only. We take the view that cases under the Act should also be capable of being tried at the magistrates' court so that the law can be used more flexibly. As has already been said by noble Lords, we are tabling an amendment to the Criminal Justice Bill, to be discussed tomorrow in another place, to make it an either way offence.
In addition, Section 5 of the Public Order Act 1986 adds further protection in that it covers sexual activity within the sight or hearing of a person likely to be caused harassment, alarm or distress. Sexual activity in public is an offence against public decency rather than abusive behaviour specifically targeted at a particular victim or victims, as are the other new offences in the Sexual Offences Bill. That is why we have taken this offence out of the Sexual Offences Bill and included an amendment to outraging public decency instead in the Criminal Justice Bill to make the offence triable either way.
The maximum sentence on summary trial will be six months—the most that a magistrates' court can currently pass—although that will be raised to 12 months when the Criminal Justice Bill becomes law. That cannot be done in this Bill because outraging public decency covers more than sexual behaviour. We do not intend to propose any other amendments to the offence.
The common law is flexible, which enables it to adapt to changing circumstances and standards of behaviour. We are confident that outraging public decency and Section 5 of the Public Order Act between them are sufficiently flexible to cover unacceptable sexual behaviour in toilets and—I make this clear—including in cubicles behind closed doors.
I trust that the Committee will agree that the action we propose is the most effective and appropriate way to address the issue. We are agreed on what we wish to achieve in the context of the problem in relation to public toilets. I trust that noble Lords who have tabled these amendments will believe that we have the balance about right. For the reasons I have indicated, I support the Motion that the clause should not stand part of the Bill. I hope noble Lords will forgive me if I do not address in detail amendments that deal with the detail of Clause 74.
I thank the noble and learned Lord for that response. I hope I will not disappoint him when I tell him that I was not entirely happy with what he said about the extent to which sexual activity in public lavatories would be caught by a combination of the existing common law offence and the Section 5 offence. I am not fully convinced that the behind closed cubicle doors offence is seen as falling within the ambit of those offences. Such cases are typically about being seen. Clause 74 also has an element of that problem, but I believe that it is capable of being overcome.
The noble Lord, Lord Alli, made a plea for the law to be neutral in its approach to sexuality, which we completely support. I wonder whether the noble Lord would be satisfied to rely on the existing offences, which have been applied with a bias towards being disapproving of homosexual activity as opposed to being neutral towards homosexual and heterosexual activity. There remains a case for clear and unambiguous expression of the law on what is or is not allowed to take place in public lavatories.
I will consider the matter again carefully but believe that we should return to it on Report. I welcome the removal of most of the rest of Clause 74, which was very unsatisfactory, but we have not put all the other issues to rest in today's useful debate. Meanwhile, I beg leave to withdraw the amendment.
moved Amendment No. 362:
Before Schedule 1, insert the following new schedule—