Baroness Brinton:

Moved by Baroness Brinton

293: After Clause 82, insert the following new Clause—“Removal of limitation period for historical child sexual offences(1) The Sexual Offences Act 2003 is amended as follows.(2) In section 9 (sexual activity with a child), after subsection (3), insert—“(4) An offence is committed under this section regardless of when the offending activity was committed.”.”Member's explanatory statementThis new clause ensures there is no limitation period for offences under section 9 of the Sexual Offences Act 2003.

My Lords, Amendment 293 in my name is very straightforward and necessary. Victims of child sexual abuse and other offences often do not come forward themselves at the time of the offences. Research has shown that, on average, it takes around three decades for a survivor to get the courage to come forward—and then even longer to get to court. As a result, almost all abuse claims are brought outside the statutory time limit. The problem is that, if the survivor cannot convince the court that a fair trial is possible, the claim falls and the victim can never get justice.

All the various strands of the independent inquiry into child sexual abuse, which were referred to earlier—including the Westminster report, the Anglican Church report, the Catholic Church report and the children in custodial sentences report—said that it was usually decades after the offences that victims reported what had happened. Frequently, this then gave other victims the confidence to come forward too, in exactly the way that happened after the BBC presenter Nicky Campbell spoke up in 2022 about the abuse at his school, the Edinburgh Academy, decades before. The abuse there involved arbitrary violence on boys under 11, including choking, throwing them down stairs and various other disgusting forms of abuse.

In September 2023 an ex-teacher, Russell Tillson, was jailed for sexually abusing boys. Beginning in the 1980s, it continued for 20 years, but allegations were first made only in 2018, nearly a further two decades after the teacher had retired. Both cases are absolutely typical of the behaviour of perpetrators and, indeed, of victims.

Earlier this year the Government said they were minded to consider removing the limitation period, but we believe that it needs to happen now and be in the Bill. The amendment seeks to remove any limitation period for historical child sex offences. It just must not be possible for a perpetrator to escape justice because the victims were too traumatised to come forward until years later. I beg to move Amendment 293.

My Lords, I support the Amendment from the noble Baroness, Lady Brinton. I need not take very long, because she has explained her very straightforward amendment impeccably. After the brilliant previous group led by the noble Baroness, Lady Bertin, and her team, perhaps there is no need to go into all the quite serious sexual contact included in Section 9 of the Sexual Offences Act that need not necessarily be tried in the Crown Court.

I support the amendment for two simple but important reasons. First, there is some very serious sexual activity with children that could be tried in the magistrates’ courts—there is not necessarily a problem with that. Secondly, there is the obvious reason of historic child abuse and victims coming forward sometimes only many years after the fact. Those are very good reasons to depart from the norm of the six-month time limit and, indeed, to have no time limits at all.

My Lords, I absolutely accept much of what the noble Baroness, Lady Brinton, has said about the awful nature of historic child abuse and the reasons why there is often a delay before bringing forward complaints, but it is important that we do not conflate civil proceedings and criminal proceedings. The earlier group was to do with people claiming damages, where the defendant is not usually the perpetrator. There may be reasons why we have reached a stage where there cannot be a fair trial. I will leave that aside for the moment.

This Amendment is concerned with criminal offences. There is not a limitation period for criminal offences generally, subject to the prosecution deciding that so much time has elapsed that it is not appropriate to bring forward a claim. The noble Baroness has experience of occasionally making those decisions in very old cases. The Minister is pointing at me and is going to give a longer and more authoritative answer than I will attempt to do now. I make the point in general terms.

My Lords, I agree with the noble Lord, Lord Faulks. While I entirely understand the motivation behind the Amendment from the noble Baroness, Lady Brinton, I am not entirely sure that it is necessary. As the noble Lord said, there is no limitation for the bringing of this particular Section 9 offence.

I do not wish to get into my anecdotage, but I remember that, as a law officer, one very often had to deal with historic offences whereby a mature person, in their 50s, 60s or 70s, was being indicted or prosecuted for an offence they committed many years ago against a minor. Had the problem existed that the noble Baroness, Lady Brinton, envisages through her amendment, that would have been a matter we would have had to consider. As the Minister will no doubt tell us from her experience as someone who worked at a senior level in the Crown Prosecution Service, you have to consider whether there is an adequacy of evidence and whether it is in the public interest to bring that person to trial. The age of the offence might be considered by the prosecutor, but there is no time bar, as I understand it. While I may well be corrected for being out of date and ignorant, I certainly do not think that there is a need for this amendment, although it is well motivated.

I have a suspicion that I have got this entirely wrong and that the Minister is going to tell me that it would have been better if I had kept to my place, but there we are. There are plenty of things that we could do with the Bill—make it shorter, for example—but I am not sure that this amendment is one that we need to add to it.

My Lords, I speak in strong support of the Amendment from the noble Baroness, Lady Brinton. I do not know whether it is necessary. I declare an interest as a victim. My concern about the historic sex offences is the prison population. We have large numbers of historic sex offenders in prison. It creates great problems for the Prison Service. However, a custodial sentence is the only sensible disposal. We need to work out what to do with historic sex offenders within the prison system.

My Lords, my noble friend Lady Brinton has made a powerful case for removing the limitation period. The Government have already signalled a willingness to act, so objections are likely about timing rather than policy—at least, I hope that is the case.

The Amendment would align the law with what Parliament has already accepted, which is that child sexual abuse is distinct from other offences. This is a crime defined by secrecy, grooming and a stark power imbalance. We know that victims often take decades to come forward, so allowing offenders to shelter behind time would reward fear and coercion.

Amendment 293 provides clarity for all parties—victims, police, prosecutors and, indeed, defendants. It removes the scope for technical argument about whether a particular course of conduct falls outside time and instead focuses everyone on the core question, which is whether the evidence available can support a fair trial. It also brings coherence. Across the system, we are rightly moving away from arbitrary cut-offs that prevent past abuse ever being heard in court. The amendment is a modest step in the same direction in accordance with the recommendations of inquiries and the expectations of survivors.

There must be no time bar on prosecuting sexual activity with a child. If we are serious about saying that such conduct is never acceptable, surely we should also be serious about saying that it is never too late to pursue justice for it. The amendment achieves that and warrants the support of the Committee and the Government.

My Lords, I am very grateful to the noble Baroness, Lady Brinton, for bringing forward the Amendment. Obviously, victims of child sexual offences should always be able to seek justice, no matter how long it takes them to come forward.

We absolutely understand and respect the intention behind this proposal. Many survivors of abuse do not feel able to disclose until years—sometimes decades—after the offence, and there is a very real sense of injustice when the law appears to stand in the way of accountability.

However—and on this point I side with my noble and learned friend Lord Garnier—I think there exists no limitation period for offences that would occur under Section 9 of the Sexual Offences Act. The Limitation Act 1980 applies only to civil cases, and indictable criminal cases do not have general limitation periods in England and Wales. As offences under Section 9 of the Sexual Offences Act are indictable only, we do not think the amendment is strictly necessary, despite the fact that it pursues a very noble aim. While sympathetic, therefore, to the principle—

Briefly, has the noble Lord opposite considered Section 127 of the Magistrates’ Courts Act, which has a six-month time limit on prosecutions brought in the magistrates’ court? Has he considered that Section 9 is neither a way of—my noble friend the Minister is shaking her head at me, so maybe it is not necessary for the noble Lord to answer.

I thank the noble Baroness for that. I will just wait for the Minister to explain to all of us what the position is.

My Lords, I am grateful to the noble Baroness, Lady Brinton, for bringing forward this Amendment today. As I have said when responding to the other amendments, I stress that I entirely understand the motivation underlying it. Victims and survivors of child sexual abuse have every right to see justice for the horrendous crimes they endured. I know perfectly well through my experience in other parts of public service, if you like, of how long it can take for victims to be able to come forward. To that extent, there is nothing between the noble Baroness and me, and indeed others who have spoken: the noble Earl, Lord Attlee, the noble Baroness, Lady Doocey, the noble Lord, Lord Cameron, and my noble friend Lady Chakrabarti. That said, I am afraid I am going to have to disappoint the noble Baroness when I say that the Government cannot accept her amendment, and I hope she will appreciate the reason for it when in a moment I explain why.

To explain, I have to give a short bit of legislative history. Section 9 of the Sexual Offences Act 2003 replaces Section 6 of the 1956 Act of the same name. The old Section 6 made it an offence for a man to have sexual intercourse with a girl aged 13 to 15. This was to do with the statutory age of consent—it had nothing to do with whether there was actual consent; prosecutors did not have to prove that the victim did not consent, merely that she was below the age of consent, so it was a completely separate offence from the offence of rape. Unusually for a criminal offence—in this the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Faulks, are entirely correct—prosecutions for the old Section 6 offence had to be brought within 12 months of its commission by virtue of the 1956 Act.

The old Section 6 offence and its time limit were rightly repealed by the Sexual Offences Act 2003, which introduced a much more comprehensive framework of sexual offences, including those against children, and any acts committed from 1 May 2004 onwards are prosecuted under the 2003 Act. As for the new Section 9 offence—even if there was no consent—which replaced the old Section 6 offence, there is now no time limit for bringing a prosecution.

The difficulty with the noble Baroness’s amendment is that it would operate retrospectively, when it is an age-old principle of the criminal law that criminal offences should not have retrospective effect. The general reason for the rule, as I am sure is appreciated by your Lordships, is that offences with retrospective effect risk criminalising behaviour which was not illegal at the time the person behaved in that way. Subsequently to criminalise behaviour that was perfectly lawful at the time it took place is the behaviour of repressive regimes and not mature democracies.

The principle that criminal offences shall not have retroactive effect is enshrined in Article 7 of the European Convention. Therefore, the noble Baroness’s amendment would be incompatible with Article 7, which prohibits the retrospective revival of prosecutions which have become time-barred due to the expiration of a limitation period.

Therefore, while I of course sympathise with the need for victims and survivors of child sexual abuse to see justice for the crimes committed against them, retrospective criminalisation is contrary to the rule of law and raises serious concerns about legal certainty and fairness. We absolutely must support victims, but we must also uphold the principle that individuals are judged by the law as it was at the time of the alleged conduct.

A very small cohort of offences is covered here, because any offences where there was no consent or where the child was younger than 13 will be caught by all the other offences which have no limitation period to them. It is just that small cohort, aged 13 to 15, where they cannot prove lack of consent.

I am grateful to the noble Baroness for moving this amendment today. As I said, I understand the sentiment; I hope she will appreciate the Government’s reasons for opposing it. For those reasons, I invite her to withdraw it.

Just because this is so important, and no doubt for our understanding, can I ask two questions? First, on there being no time limit, is that because there is some exception in the Magistrates’ Courts Act to the normal six-month time limit on summary conviction? Section 9(3)(a) of the Sexual Offences Act allows summary conviction, so this removal of the time bar must be somewhere either in the Sexual Offences Act or in the Magistrates’ Courts Act. My second question relates to Article 7. Of course, the prohibition on retroactive criminalisation does not apply when the crime in question would be thought of as criminal according to the Laws of civilised nations. Of course, that was upheld as a principle when marital rape was finally criminalised in all these jurisdictions by the courts rather than by statute.

I will deal with my noble friend’s second point first. There are decisions of the domestic courts here that support the fact that you cannot bring prosecutions for what was the unlawful sexual intercourse offence under Section 6, nor can you even bring a prosecution for sexual assault based on the same facts, because that would transgress the prohibition in Article 7. As regards the time limit, Section 9 of the 2003 Act has no time limitations in it, which is the usual principle of criminal offences in this country, but for this tiny cohort of behaviour—it really is very small—you could not prosecute under Section 9 because of Article 7. Section 6 no longer exists, and you cannot get round it by using Section 9, but it really is a very small number of cases.

I suggest to the noble Baroness that, in addition, these offences are so serious that they would not be prosecuted in the magistrates’ court; they would be indictable offences, would they not?

The noble Lord is quite correct: this has nothing to do with magistrates’ court time limits. There was a statutory time limit contained within Section 6 of the 1956 Act that said that all prosecutions for offences under Section 6 must be brought within 12 months in any court. It is nothing to do with the time limits in the Magistrates’ Courts Act.

I am so sorry to labour the point, but I think it is so important that we understand, and if it cannot be dealt with now, perhaps the Minister could write to the noble Baroness, Lady Brinton, and the Committee. I am looking at Section 9 of the Sexual Offences Act, on “Sexual activity with a child”, which I understand to be the section that the noble Baroness is seeking to amend in her Amendment. Section 9(3)(a) allows summary conviction for that offence, and the maximum penalty is

“imprisonment for a term not exceeding 6 months”,

or the statutory maximum fine.

I am of course more than happy to write to my noble friend, and it must be my fault I am not explaining this properly. There is no time limit for prosecutions brought under Section 9 generally, unless it refers to particular behaviour—so that would be an offence committed against a girl aged between 13 and 15—that took place before the repeal of the 1956 Act and the bringing into force of the 2003 Act. You could not prosecute that under Section 9 because the time limit has expired for bringing it under Section 6, in the same way that you cannot prosecute for sexual assault for the same behaviour because you cannot bring a prosecution under Section 6. I had better write, because I can see from the puzzled look on my noble friend’s face that I have not explained it very well.

Perhaps the noble Baroness could also include in that letter reference to what is either a decision of the Appellate Committee or the Supreme Court—I think it is the former—which addresses this and explains precisely why those who are alleged to have committed offences before the relevant dates are protected by the 1956 Act and continue to be so.

The noble Lord has explained it rather better than I did.

I am very grateful to everyone who has spoken. I am probably the only non-lawyer in this debate, and as it is my Amendment I feel something of a duffer.

I am very grateful for the advice. I came to this amendment after reading the recommendations of IICSA, and what concerned me particularly was picking up that people who had come forward years afterwards were told that things were timed out—that might have been a decision by the CPS to say that it felt that it would not be effective going to trial. However, I very much appreciate the points made by the noble Baroness, Lady Chakrabarti, because I have experience of the issue of which court deals with issues through my interests in stalking and other domestic abuse cases, where often that is the place that things happen. All the description that has been given for “no time limits” has not been for the magistrates’ court, excepting the detail that the noble Baroness provided, which is way beyond my knowledge.

There is the difficulty that Professor Jay reported. In two cases where I was heavily involved with the victims, decisions were made initially by the CPS and the victims were told that they had timed out. That may not have been the case, but that is what they were told. In another case, when there were three pupils from the same school all giving evidence, none of them knowing each other, the first victim was told by the judge, “Yours is over 20 years ago; you can’t possibly remember what happened and therefore it’s timed out”. That is what is happening in the practice of the courts. Professor Jay’s report spoke to the experience of the victims. We have gone into extraordinary technical detail that many victims would be completely oblivious to. I would be very grateful for a letter. If there is an easy solution, it may just be that it needs to be clarified with the police and the CPS. There are a lot of unhappy victims out there. With that, I beg leave to withdraw my amendment.

Amendment 293 withdrawn.

Clauses 83 and 84 agreed.