Clause 7 - Assault of a child under 13 by penetration

Sexual Offences Bill [Lords] – in a Public Bill Committee at 9:45 am on 11th September 2003.

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Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield 9:45 am, 11th September 2003

I beg to move amendment No. 130, in

clause 7, page 3, line 27, after 'body', insert 'other than his penis'.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

With this it will be convenient to discuss the following:

Amendment No. 131, in

clause 9, page 4, line 14, after 'body', insert 'other than his penis'.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

The amendment can be dealt with briefly, as it refers to the issue of duplication of offences that arose during our sitting on Tuesday. The result of the two amendments would be to differentiate between rape and assault by penetration, which could not involve rape with the penis.

The Minister's explanation remains valid because there is concern that there may be some, perhaps rather odd, cases where it would not be clear whether penetration had taken place with an object or by the penis. In such circumstances, as I understand it, the Government want to retain the flexibility that both counts could be put on the indictment and the jury would therefore have a choice on which to convict. If

the Minister will confirm my understanding of the matter, I will not press the amendments further.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

In the spirit of the hon. Gentleman's conciliatory approach, I am happy to confirm his understanding of what I said. As my hon. Friend the Minister for Citizenship and Immigration said in Committee on Tuesday, in cases in which the evidence clearly indicates that non-consensual penile penetration took place, we would expect a charge of rape. If there has not been penile penetration the charge would not be one of rape. In cases where there is some doubt and where, in the course of a case, it emerges that there was penile penetration, we would not want the accused to walk out of court scot-free. That is the territory and our aim is to provide clarity.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am grateful to the Minister. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I beg to move amendment No. 129, in

clause 7, page 3, line 28, leave out paragraph (b) and insert

'(b) he has neither lawful authority, nor reasonable excuse, and'.

This, too, is a subject we touched on on Tuesday. However, I return to the matter because it concerns the issue of having to prove under clause 7 that the intentional penetration is sexual. The Minister will remember that on Tuesday I expressed reservations about that test. I suggested that in the case of penetration of the vagina or anus, it was difficult to see that the sexual motive was particularly relevant. I said that there should be a different definition that would properly exonerate someone who carried out such penetration in the course of an intimate search or because there was reasonable excuse for the penetration, for example, if a doctor was treating an unconscious patient. That is why I tabled the amendment and I still prefer my wording. As there was no opportunity for the Government to respond fully on Tuesday, because I had not tabled an alternative wording but simply proposed deleting the words ''the penetration is sexual'', perhaps we might consider it now.

I have received several representations, in particular from Liberty, expressing anxiety about the definition of ''sexual'' in, I believe, clause 79, to which we may return at a later stage. I am worried about what the judge will say to the jury. If something is not easy for a jury to understand mistakes will be made and cases will be overturned on appeal. I have a niggle about the quality of the drafting, and I will come back to that when we discuss clause 79.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office 10:00 am, 11th September 2003

The amendment would remove the requirement that the penetration carried out during the offence must be sexual. We must remind ourselves that we are discussing the Sexual Offences Bill and that any offences covered by it are sexual and would attract the sex offender notification requirement. The legislation cannot include offences that are not sexual.

The existing requirement that the penetration be sexual excludes from the offence penetration of a child by doctors or parents for health care reasons. I am pleased to note that, following Tuesday's discussions,

there is now a degree of sophistication in the hon. Gentleman's approach. That is clear from his further amendments. However, the amendment would cover anyone who penetrates a child under the age of 13 with any part of his body or anything else without a legitimate reason, regardless of whether that penetration was sexual.

Photo of Paul Beresford Paul Beresford Conservative, Mole Valley

Not being legally qualified, may I seek a small clarification? Each of the subsections begins with the phrase ''a person'' and then reverts, in the paragraphs, to the word ''he''. Can I assume that the politically correct have not reached the drafting stage and that it should read ''he or she''? I use the example of Rose West.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

It is good to be in non-legally-qualified company. The hon. Gentleman's point is well recognised; when drafting legislation, the word ''he'' is always used but can apply to both sexes.

Although it may be hard to conceive of circumstances in which a court would consider penetration of such intimate organs to be anything but sexual, we cannot allow the drafting to include non-sexual assault within the scope of sexual offences legislation. It may be possible that, because of the circumstances and the purpose of the defendant, an assault by penetration was not sexual. Such assaults should not fall within the scope of a sexual offences Bill. A conviction for such an offence automatically results in registration as a sex offender and we simply could not justify sentencing or treating anyone committed of a non-sexual assault as a sex offender.

Alternative legislation exists to prosecute grievous bodily harm with intent, which carries a maximum life penalty—clearly a severe penalty. Any violent, non-sexual penetration of a child should be prosecuted in that way if the case warrants it. There is no reason not to list grievous bodily harm as an alternative charge on the indictment if assault of a child under the age of 13 by penetration is charged. I acknowledge that the hon. Member for Beaconsfield has progressed from his original amendments, and I hope that he will accept my explanation.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am interested to hear the Minister's response. I confess that I had not gleaned from Tuesday's debate—it is interesting that it has now emerged, although I am not suggesting that the Government concealed it—that one of the reasons for using the word ''sexual'' is to justify placing a person on the sex offenders register thereafter. I confess that that had never crossed my mind as a reason for the definition of ''sexual'' in clause 79. That may explain why clause 79 is not as happily drafted as I would like.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

It may help the hon. Gentleman to know that the Government have tabled an amendment containing a new definition of ''sexual''. I hope that it will lead to greater clarity.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am grateful to the Minister, and I accept that that may improve matters. However, I still believe that it may be a mistake to insist on the sexual motive being proved. The jury will have to be satisfied that there was a sexual intention—whatever that may mean—behind the act.

I agree with the Minister that in some cases it is essential to establish a sexual intention. When one is deciding whether an assault, such as when one person brushes up against another, is indecent under the old law, the sexual nature of the act becomes very important. There is general agreement on the Committee that penetration, especially with an object, of another person without their consent is a serious matter. Once it is shown that it happened and that there was no consent it is easy to say that an offence has been committed. Yet we are putting an extra hurdle before the jury of having to decide the sexual motivation before conviction can take place.

Defendants, as I know from experience, are very creative individuals. They quickly cotton on to all sorts of explanations that can be put forward to justify their actions. They will tell their barristers to put forward the defence that it was all an unfortunate accident and that there was no sexual motive behind it. We will get into a situation where, with a superabundance of caution, prosecutors will put non-sexual alternatives on the indictment. The difference will be that if there is no grievous bodily harm it will be a very minor matter. It may just be a common assault. It might be actual body harm.

As I said on Tuesday, we are making a rod to beat ourselves with quite unnecessarily. Although the idea that we could end up with a penetration of someone's anus or vagina with an object that does not have a sexual motivation is rather far fetched, we could have all sorts of odd people trotting into the witness box to argue that as their client is a eunuch who cannot get any arousal out of his activities there can be no sexual motivation. I am trying to think this one through. I just do not think that the provision is necessary.

The Minister suggested that the reasoning behind the provision was anxiety about the sex offenders register. However, it is time for us to be reasonably robust. Let us suppose that a repeat serial offender, who penetrated other people with objects without consent, was able to establish that because of his psychological condition he did not do so from any sexual motive. Would we not want him on the register to warn people that he was around? We would probably think that the sex offenders register would be a good place for him. Here also we are making life difficult for ourselves. I appreciate the Minister's point and I do not want to take more of the Committee's time. I will obviously ask leave to withdraw the amendment, but I hope that we will think about this because I find it an odd thing to do in view of the nature of the allegation that is being made.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

We may have made a bit of a breakthrough. The hon. Gentleman may like to reflect that in such a case it would not be necessary to prove that the offender's motive was sexual. The jury could decide that the nature of the act—the penetration of the anus or the vagina—was in itself sufficient to enable it to conclude that the act was sexual. It would be the judgment of the jury on the nature of the act, rather than the intention of the offender, that would determine whether the act was sexual.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am grateful to the Minister, and take his point. We will have a good opportunity to

reconsider the issue when we reach clause 79, especially once we have looked at the Government amendments to it. I was rather concerned by the clause, but I accept that that was principally on looking at the old clause 79, and not at the Government amendments to it.

In my experience, juries are very good at answering questions, as long as they are not convoluted and bizarre. The only representations that judges have made to me about the Bill have been on occasions when they have taken me to one side at drinks parties and said, ''Have your read this thing? I am not sure how I will ever explain this to a jury in summing up.'' Of course, judges are conservative with a small ''c'', and if they are used to a particular summing up patter, they can probably get used to a new one.

It struck me that the ''sexual'' element in clause 79 could, when explained to a jury, easily leave them puzzled. I think that, whatever the Minister may have intended, juries would interpret it as ''a sexual motive'', because if there is not a sexual motive, how can there be a sexual act? I accept that we can return to the issue. I understand the distinction that the Minister is making—that there can be a sexual act without a sexual motive—but reading clause 79 worried me, because it gets us into esoteric distinctions as to what people understand.

Once juries are asked, ''Are you satisfied that this is a sexual act?'' there is a risk that they will ask themselves, ''Why am I being asked this question? Either it's obvious, or there is something that I must decide about it.'' That is where the defendant will come along with all sorts of creative explanations. Anyway, we will leave the subject until we get to clause 79. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

Before I call the hon. Member for Woking to speak to clause stand part, I should say that, because of the nature of the subject, I have allowed a pretty wide-ranging debate. However, given that amendments have been tabled to clause 79, I hope that there will be no more referrals to that clause, except, perhaps, in a simple sentence. I do not want any more detail on that clause, because it is not relevant.

Question proposed, That the clause stand part of the Bill.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I shall be brief. I return to the principal point, which I made more than an hour ago. We know of what we disapprove, and we know that it should be made criminal, but we also instinctively know what should not be made criminal. That is commonly understood in Committee.

Many months ago, I had the privilege to chat to Professor John Spencer, QC, of Selwyn college, Cambridge—a leading, if not the lead, academic in this and other criminal fields in Cambridge university. I advise the Minister to make contact, through his officials, with someone of that eminence to consider

possible drafting measures to get over the problem to which I have alluded.

The following problem is acute, and remains under clause 7: if a 12-year-old girl asks a boy of the same age to put his finger into her vagina, he is liable, on conviction, to imprisonment for life, despite the fact that she asked him to do it and makes no complaint. That is the beginning and the end of the story. If I am wrong, let the Minister tell me so. If any Committee member thinks that we should be happy with that proposition, let that person intervene on me now.

Sufficient time has passed for it to be plain that no Committee member thinks that that young boy should go to prison for life. However, that is exactly what we are saying should happen. The Minister and his officials are under a duty to observe.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow 10:15 am, 11th September 2003

I do not disagree with the fundamental point that the hon. Gentleman makes. We are saying not that that should happen, but that it could, which is not the same thing.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I take the hon. Gentleman's point. We are passing a law, saying, ''That is the law.'' I am not satisfied with the proposition that we should pass lots of laws and follow those with regulations saying, ''The laws are stupid, so we will not enforce them. We just like to have them on the statute book.'' I have already mentioned Professor Spencer. I shall return to what he said later, because he has more to say about other clauses.

If we agree to the clause in its present form, it will become law. However, there is not a single Committee member who thinks that it is sensible. Someone somewhere must find a way to make an amendment—perhaps one of my later amendments—that will add something to the end of the clause to the effect that one person has caused harassment, alarm or distress to the other. We shall debate that later. We should be discussing that; otherwise, we are doing something that is utterly stupid.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

On Tuesday, the hon. Gentleman described his manner of speaking as self-deprecating. His self-deprecation does not, however, conceal his strong feelings about certain issues, and I sense that he feels strongly about this one. He says that the law must be clear. Committee members are clear that we must do our best to achieve clarity through our deliberations. The clause makes it clear that the sexual penetration of the vagina or anus of a child under 13 will always amount to an assault by penetration. The question of consent will always be irrelevant. Our policy is that a child under 13 should be deemed incapable of giving legally significant consent to any form of sexual activity.

The hon. Gentleman describes a scenario involving two 12-year-olds. He did not speculate further about the degree of innocence in that relationship, or whether one of the children might have been, perhaps for some years, the victim of abuse in the family. The individual circumstances of such an offence and of the two children caught up in it will always be a matter of deep deliberation and

consideration. All those circumstances will be taken into account at the point where the CPS has to decide whether to prosecute. If there were a prosecution and a finding of guilt, the question of the penalty would arise. Again, the specific circumstances would always be examined.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

That is a well made point and it shows the advantages of a Committee debate. My views remain the same, but the Minister makes a good point.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I am grateful for the hon. Gentleman's comments. Perhaps I have said enough.

Photo of Julie Kirkbride Julie Kirkbride Conservative, Bromsgrove

I am grateful to the Minister for his response, but, in contrast to my hon. Friend the Member for Woking, I am more alarmed. The following possibility is raised. Let us say that a young boy was invited to insert his finger into a young girl's vagina and suppose her mother found out, was upset and wanted to pursue a prosecution. That would technically be possible under the law. There may have been no abuse in the family. These things can, after all, just happen through sheer curiosity, perhaps arising from something that the children read in a book. They may have wanted to see whether it was more interesting than it looked. There do not have to be extenuating reasons why that young man behaved in that way. He was just doing what he will want to do a lot more of when he gets a bit older, but he will have to face court proceedings, which will completely change his life. He should not be put in that position at 12 years of age, when some kids will do what kids do.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I hope that I can reassure the hon. Lady by emphasising again that the specific characteristics and circumstances of the offence and the offender will be the subject of some consideration.

There is the world of the law, but there is also the world of good practice. Recently, I had the privilege of visiting the Aim project in Manchester, which is run by the National Society for the Prevention of Cruelty to Children.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I will, but then I hope to say something about that project.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

I want to refer to the point that the hon. Member for Bromsgrove (Miss Kirkbride) made, and to raise a concern of mine that runs through all our discussions on this matter. Regardless of what we might say about the CPS guidelines that we expect, it is difficult to guarantee that all Crown prosecutors will adopt a common approach. Secondly—this is the hon. Lady's point—I do not see how that would protect against an attempt to bring a private prosecution. We can be pretty certain that there will be people who regard themselves as the moral guardians of the nation and who will be only too willing to attempt a private prosecution in some circumstances.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

My hon. Friend, with his vast experience, makes an interesting point, and I shall reflect on it further.

I was going to make a point about the Aim project I visited in Manchester. In liaison with the police in

Greater Manchester, it has established that whenever there is the possibility of a prosecution for a sexual assault by a child on another child there is an automatic bail period during which an expert from the youth offending team, with support and training from the Aim project, is able to assess in great detail the particular circumstances of the alleged perpetrator. That helps to inform the deliberations of the CPS and, eventually, of the court. Therefore, notwithstanding the provisions that we make, good practice can prevail, and sometimes it can provide the support that the perpetrators require, which is needed every bit as much as is the action to be taken against them.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

Can my hon. Friend confirm that the NSPCC project's investigations and discussions are held pre-charge, so that as many young people as possible are diverted from the custodial system?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I am happy to confirm that they are all held pre-charge. The stand-down 28-day bail period is pre-charge. This helps to inform the whole process with a more thoughtful approach, while bearing in mind that there is a need for justice and to ensure that where an offence has taken place the victim is accorded the proper respect and dignity. We must have an effective intervention with regard to such children.

Photo of Paul Beresford Paul Beresford Conservative, Mole Valley

I was going to raise the point that the hon. Member for Walthamstow (Mr. Gerrard) raised on the back of the point of my hon. Friend the Member for Bromsgrove. If a mother comes across her daughter playing nurses and doctors—or whatever children of that age call it now—and is sufficiently aggrieved and upset because she cannot stand the boy concerned and so on that she goes for a private prosecution, what will the situation be?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I did say that I would reflect on the comments of my hon. Friend the Member for Walthamstow—and now of the hon. Member for Mole Valley (Sir Paul Beresford) as well—and after a little time for reflection, I am able to respond by saying this: the Director of Public Prosecutions can take over private prosecutions, and can discontinue them. After advice, it appears that this route would not open up scenarios of the type that were put to me by the hon. Member for Bromsgrove and my hon. Friend.

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.