Sexual Offences Bill [HL]

Part of the debate – in the House of Lords at 7:30 pm on 19 May 2003.

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Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System) 7:30, 19 May 2003

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.