Clause 10 - Sexual activity with a child

Sexual Offences Bill [Lords] – in a Public Bill Committee on 11th September 2003.

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Amendment moved [this day]: No. 157, in

clause 10, page 4, line 19, leave out 'aged 18 or over'.—[Mrs. Brooke.]

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

With this it will be convenient to discuss the following:

Amendment No. 158, in

clause 10, page 4, line 23, leave out 'B is under 16' and insert—

'A is aged 18 years or over and B is aged between 13 and 16'.

Amendment No. 159, in

clause 10, page 4, line 25, leave out 'B is under 13' and insert—

'A is under 18 years and B is more than 3 years younger than A, and A does not reasonably believe that B is less than 3 years younger than A.'.

Amendment No. 161, in

clause 11, page 4, line 29, leave out 'aged 18 or over'.

Amendment No. 162, in

clause 11, page 4, line 34, leave out 'B is under 16' and insert—

'A is aged 18 years or over and B is aged between 13 and 16'.

Amendment No. 163, in

clause 11, page 4, line 36, before 'B', insert—

'A is under 18 and B is under 16 and A does not reasonably believe that B is 16 or over or,.

(iii) '.

Amendment No. 164, in

clause 11, page 4, line 37, after 'section' insert

'if aged 18 or over at the time of the offence'.

Amendment No. 166, in

clause 12, page 4, line 40, leave out 'aged 18 or over'.

Amendment No. 167, in

clause 12, page 5, line 10, After 'section' insert

'if aged 18 or over at the time of the offence,'.

Amendment No. 169, in

clause 13, page 5, line 16, leave out 'aged 18 or over'.

Amendment No. 170, in

clause 13, page 5, line 26, after 'section' insert

'if aged 18 or over at the time of the offence,'.

New clause 4—Definition of between 13 and 16—

'For the purposes of this Act ''aged between 13 and 16'' refers to persons aged 13, 14 or 15.'.

New clause 5—Penetration involving adult and child—

'(1) A person (A), aged 18 years or over, commits an offence if—

(a) he intentionally penetrates the vagina or anus or mouth of another person (B) with his penis, or

(b) the activity involves penetration of A's vagina or anus or mouth with B's penis,

(c) and the other person (B) is aged between 13 and 16 and A does not reasonably believe that B is 16 or over.

(2) A person guilty of an offence under this section is liable on conviction on indictment, to imprisonment for a term not exceeding 14 years.'.

New clause 6—Penetration involving a child and a child or a young person—

'(1) A person (A), aged below 18 years, commits an offence if—

(a) he intentionally penetrates the vagina or anus or mouth of another person (B) with his penis, or

(b) the activity involves penetration of A's vagina or anus or mouth with B's penis,

(c) and the other person (B) is aged below the age of 16 years and A does not reasonably believe that B is 16 or over.

(2) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 7 years,

(c) in determination of the sentence, consideration shall be given to the age differential between A and B.

(3) Prior to sentencing, there shall be a comprehensive assessment by a multidisciplinary agency or Youth Offending Team.

(4) Under this clause, a person shall only be subject to notification requirements under part 2 of this Act following an assessment of the risk that he poses to the public.'.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs) 2:30 pm, 11th September 2003

This set of amendments could be another solution to our dilemma. Taken together, the amendments could obviate the need for clause 14. Other amendments hang together with those that we are about to discuss, but for the purpose of explaining them, they have been divided into two groups. If I stray on to an amendment from the next group, Mr. Griffiths, I promise that we will not refer to it again.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

That would mean that we would be here longer this evening, would it not?

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I shall be as concise as I can, but it is difficult to compartmentalise the amendments, given the way in which they have been drafted.

We are trying to highlight the difference between under-18s and over-18s. Earlier we strayed on to matters that do not apply, so I want to put it firmly on the record that the amendments are not seeking to abolish the age of consent. The theme that runs through them is an attempt to balance the concern about criminalising all consensual sexual behaviour with retaining the age of consent.

New clause 4 deals with penetration involving a child or a young person. New clause 5 covers penetration involving a child and an adult. The purpose of creating such new offences is to remove penetration involving under-16s from the offence of sexual touching, so that sexual touching can be decriminalised for children in certain circumstances, without impacting on the age of consent.

The amendments do not cover oral sex and penetration with other parts of the body or objects. The idea is to create a coherent argument throughout the Bill, which could be supplemented. There would be

much scope for further development. New clause 5 defines the ages between 13 and 16, and would make it clear that the age between 13 and 16 is 13, 14 or 15. That detail is included in several other clauses. The new clause would add clarity to the Bill.

The amendments would avoid unnecessary criminalisation of usual behaviour, many examples of which were referred to this morning. The children's associations that have helped to draft the amendments are absolutely committed to protecting younger children from inappropriate sexual activity. They would introduce an age proximity test. It is almost impossible to come up with a hard and fast rule but, as we know, several people who work co-operatively with those within the organisations that have specific knowledge of such matters have made a specific suggestion.

Clauses 10 and 11 would be amended so that over-18s were liable only for offences with 13 to 16-year-olds—a theme that is followed throughout the amendments.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I may have interrupted the hon. Lady too early, but I was interested in the fact that she has chosen to amend clause 11 as well as clause 10, because the two things that are being aimed at in those clauses are different, and there might be an argument, which I shall try to develop, in favour of confining one's attentions to clause 10.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I thank the hon. Gentleman. This approach is intended to make the overall distinction between under-18s and over-18s throughout this part of the Bill—which involves the question whether clause 14 is necessary. There is a logic to this.

If I remember rightly, the example has been given of two teenagers looking at a pornographic magazine. Most parents would agree that one should not get too worked up about such behaviour. We keep coming up with examples, which I was trying to avoid. We should stick to the principles.

It is unnecessary to read out all the amendments in full. I have outlined the general principles of this approach. If any hon. Members think that there is a different way of tackling the clause 14 problem I should be interested to hear from them.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

The hon. Lady's amendments cover an important area, and this is the right time to debate the principles of her approach. Notwithstanding that I have carefully read her amendments, for reasons that I will explain later I have a preference for my amendment No. 132, but that point involves drafting issues, and we should now discuss the generality of the matters that are to be considered with regard to this part of the Bill.

As I said this morning, the problem that we have as we move on to address children between the ages of 13 and 16 is that we are much more aware that, as part of the normal development process, many of them will engage in sexual activity. The statistics show that by the time that they have reached their 16th birthday the

majority—certainly of those who have been surveyed—have had full sexual intercourse: the average age at which they begin to do so is 15. Therefore, I have always accepted that different criteria could properly apply to this area than to that which involves children under the age of 13.

We must apply our minds to this key difficulty: if we are to decriminalise any of these activities, every time that we look at each of these clauses, we must think of a worst case. We must be satisfied that in a case that would fall within the exception but which some people might nevertheless consider to be unpleasant we are comfortable with the idea that it should be decriminalised.

We can start from the first premise that anything that is not consensual should be banned. That clearly applies as much to adults as it does to children. Then the question arises: is there any category of activity within those which have been identified and targeted in this Bill which is of such an order that it is pointless criminalising it for those aged between 13 and 16, and if so with whom should it be decriminalised? Should it apply across the board to any adult, or should it be restricted to persons of their own age or roughly their own age?

I start from this basic principle: there is only one category that could be decriminalised, which is straight sexual activity through touching. Having thought about this matter, I find it difficult to see—if anyone disagrees, I would be happy to listen to them—how we could sanction full sexual intercourse because, if we were to do that, it would raise enormous problems in terms of the exceptions where someone wants to enforce the law because it is clear that there has been exploitation and seduction.

On the other hand, I have always felt that clause 10 is fairly draconian; that is the clause that, allied with clause 14—when one takes the two together—criminalises what were described as ''behind-the-bike-shed'' activities. Let us suppose that no criminal offence is committed; someone aged between 13 and 16 engages in behind-the-bike-shed activities with someone of the same age, or, as I suggested in amendment No. 132, within three years of that age. It would be possible for an 18-year-old to have sexual touching with a 15-year-old, and a 13-year-old to have it with a 16-year-old.

I must tell the Minister: as I thought the matter through, it seemed to me that that might be a possible solution, thus potentially earning me the magnum of champagne from the Home Secretary. I would be interested to hear from the Minister what cases within that restricted example would cause the Home Office anxiety because it would wish to prosecute.

Let us take some worst-case examples. We have to face the fact that, notwithstanding the fact that we are rightly removing any homophobic elements from the Bill, many people regard heterosexual and homosexual activity as very different in their nature and quality. We have to face the fact that the amendment would allow two boys or two girls to engage in sexual activity with each other involving sexual touching and mutual masturbation, for example.

However, can it really be said that, where such a case involved a 16-year-old and a 13-year-old or an 18-year-old and a 15-year-old, it would be likely to lead to prosecution? I have difficulty in envisaging the circumstances where a prosecutor would feel that that was necessary. I would be interested to hear from the Minister why he thinks it is necessary to have the crime so starkly on the statute book and not to make such an exception.

One has to face the fact that—as it seems to me, and it is probably common ground between everyone present—the consequences of sexual touching, short of penetration, are in physiological terms fairly innocuous. It is difficult to see that any serious consequences may flow from it. Obviously there are emotional consequences, and the emotions of teenagers at the best of times tend to be fairly topsy-turvy, but that must be balanced against the prospect that, in the restricted circumstances that I have described, someone will think that it is in the public interest to prosecute one of the participants. That is the issue that I should like the Minister to address.

Our own amendments have suggested that the same thinking might be applied to other activities in clauses 11, 12, 13 and 14; I should like us to consider that as well. However, curiously enough, I can see a greater objection—this was the point that I made to the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke)—because a 16-year-old inciting a 13-year-old to engage in sexual activity with someone else is quite worrying; that is a very undesirable state of affairs. I do not think it is an undesirable state of affairs if two people, unincited, who happen to be 14 and 15, wish to engage in sexual touching, either behind the bike sheds or anywhere else. I wonder whether the Committee should be focusing on clause 10, because that is the clause to which it is most likely that we can make a decriminalising amendment without causing all sorts of knock-on problems. That is my suggestion for our consideration, but I shall be interested to hear what others have to say.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office 2:45 pm, 11th September 2003

I will not repeat this morning's arguments or their details, but will try to address the specific issues relating to the amendments. I begin by pointing out again that as soon as we try to differentiate one kind of sexual activity from another, or to differentiate in terms of age, we immediately hit a degree of complexity.

The hon. Member for Beaconsfield (Mr. Grieve) spoke about full sexual intercourse as something that we agree is not acceptable between children under 16. He went on to refer to sexual touching, and made it sound mild and innocent. I think that the phrase he used was ''fairly innocuous''. We can all imagine examples of sexual touching that would be fairly innocuous—a young boy placing his hand on a young girl's breast, for example. That might fit into the behind-the-bike-sheds category. However, if a naked adult touched a naked child with any and every part of his body, that would be sexual touching, although it may stop short of penetration. I am sure Committee members agree that that is a lot more serious than the

first instance. As soon as we begin to say what sexual touching means, we find that it means a lot more than can be explained with just one example, and we see the complexity of the argument.

The hon. Member for Mid-Dorset and North Poole opened our discussions this afternoon. Her new clauses 5 and 6 would differentiate between penetrative and non-penetrative activity. I perfectly understand her motive for introducing the subject in Committee, and I accept that there is a greater incidence of adolescents under 16 engaging in non-penetrative behaviour than there is of adolescents engaging in penetrative sexual acts.

Photo of Paul Beresford Paul Beresford Conservative, Mole Valley

For the sake of my political career, I really should not do this, but I am supporting the Minister again. A colleague of mine is a senior psychiatrist specialising in abused children, and she regularly appears in court on either side of a case. Her comment on penetration and the reference in much legislation to the word ''vagina'' is that it is, as she puts it, about half a centimetre too late. She says that girls at a certain age, who can recognise what is happening but not do anything about it, are as severely damaged by such behaviour as by penetration. So, regretfully for my political career, I am supporting the Minister.

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

Once again, I am grateful for the hon. Gentleman's support, and I wish him well in his political career.

Returning to new clauses 5 and 6, the penetrative activity that would remain criminal behaviour under the amendments is restricted to penetration by the penis of the mouth, anus or vagina. That suggests that other sexual activity that falls short of penile penetration should be decriminalised for offenders under 18. That would mean that it was not an offence for a person under 18 to engage in sexual activity with a child under 16. That could involve, for example, the older child penetrating the anus or the vagina of the younger with an object of some kind. Straight away we can see a deficiency in the hon. Lady's new clauses, as they leave out significant and substantial matters.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I did briefly say that we did not include oral sex or penetration with objects to keep the new clauses as simple as possible—we thought that they were complex enough as it was. However, if the Minister thought that there was something to our approach, other provisions could be worked into the new clauses.

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

I again acknowledge the hon. Lady's honourable intentions, but my argument holds; as soon as one tries to introduce greater clarity, one introduces greater complexity. Although I accept that the hon. Lady has tried her best not to confuse things, there is still confusion. The kind of penetration that I described could be extremely damaging and serious, but it is excluded from the offence that the hon. Lady is proposing. I offer that as a consequence—perhaps a shortcoming—of her amendment.

Under the hon. Lady's proposal for a comprehensive assessment by the youth offending team, the notification requirements under part 2 should apply to children only after a risk assessment.

I do not want to take up more time dealing with those matters, because we discussed them this morning and earlier in the week. Procedures for dealing with young sex offenders already take into account their age and maturity and the individual circumstances of the case. That applies at all stages in the criminal justice system, from investigation to possible prosecution, through to court and final sentencing. The age of the offender is always taken into account.

We believe strongly that the notification requirements should flow directly from the nature of the offence committed. We accept that in all but the most serious cases children should and will be subject to the registration requirements for only half the period applicable to an adult convicted of the same offence. It is not necessary to put in statute that the age difference between the offender and the victim should be taken into account when sentence is being determined. Account is taken of an offender's age all the way through the criminal justice system.

I have listened carefully to the arguments of the hon. Lady and the hon. Member for Beaconsfield. If they are still not persuaded by my argument after our discussions this morning, I hope at least that they are increasingly persuaded of the fact that we have tried to consider whether such things could be incorporated in the Bill. Frankly, however, any compromise that introduces more complexity puts at risk our central determination to provide protection for children.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

When speaking to amendment No. 132, I shall consider one possible option, which I outlined earlier. The Minister has no difficulty persuading me or anybody else that there are limits and difficulties to making exceptions. By doing so, one allows for all sorts of rather horrific things to be decriminalised. I understand that there may be circumstances in which the prosecutor will undoubtedly exercise his discretion not to proceed. However, my broad conclusion is that to provide an exception for sexual intercourse or penetration, whether by the penis or by an object, of vagina or anus, is impossible. If somebody comes up with another idea, I am prepared to consider it.

I was, however, struck by the Minister's example of sexual touching. He said that that could be much more than fondling a breast behind the bike sheds. It could involve two people touching every part of each other's body. The exception that I suggested could apply to cases involving a young person aged between 13 and 16, if there were a three-year age difference between that person and the person doing the act, or if two such young people were doing it to each other. The Minister says that that could be a horrible set of facts—it is certainly a set of facts about which people might be concerned. Those who want their children to be protected from excessive sexual activity before they reach the age of 16, or even beyond it—many families do—may find that thoroughly undesirable. However, in terms of consequences, there is an enormous difference between that and penetrative sexual activity.

I wonder what examples from the past 10 years the Minister can give of cases in which there has been full consent on both sides but a prosecution has been

brought, against, for example, a 15, 16, or 17-year-old for having engaged in sexual activity not involving penetration or full intercourse. I suspect that there have been hardly any such cases—I would be amazed if there had been, especially if the case did not involve bodily harm on the other person. I would, however, be interested in seeing those statistics, if the Minister can provide them.

I admit that such activity covers a wide spectrum, but do we wish specifically to criminalise, or might we want to make an exception? If we decriminalise such activity, we will have to live with the consequences of our actions. We would have to accept that, in cases of a 16-year-old taking a 14-year-old to bed and engaging in a huge amount of sexual touching, but no penetration, there would have been no offence. If that was all that happened, should prosecution take place? However undesirable we think such activity might be, I am a little surprised that it would warrant a prosecution.

If the Minister can provide facts or write to me with some illustrations and examples of when sexual touching alone has been thought to be so serious that it merited prosecution, I am willing to be convinced of such matters. However undesirable I may consider such activity to be, I am not persuaded that the force of the criminal law is necessarily required when the age difference is so small. I accept entirely that it would be a different matter if a 35 or 40-year-old performed such activity with a 13 or 14-year old, because that would constitute a paedophile assault. That is precisely why the only circumstances that could be permitted are those relating to people between whom the age difference is very small. I have suggested three years, but if a member of the Committee comes up with another formula, I am willing to consider it. We could have a difference in age of two years.

Has prosecution taken place when the age difference is so small? If so, what aggravating features persuaded the prosecutor make such a decision? It would be interesting to know what penalties are imposed in such circumstances. It seems that they would be towards the lower end of the scale. That said, I accept that the alternative approach is to follow the Minister's suggestion and give the prosecutor discretion—the world will not come to an end if such action is taken. However, it would be nice to legislate with a firm understanding of such matters, so that we can justify our action if we are challenged about it.

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

I shall respond briefly. At present, I am not able to give the hon. Gentleman the information about how many cases there have been. I am interested in the matter and I shall look into it. I caution him and other members of the Committee, however, that indecent assault currently covers non-penile penetration and other non-penetrative activities; it does not differentiate between the two. None the less, I shall write to the hon. Gentleman about the matter.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

The Minister has touched on an important issue that illustrates the problem of indecent assault covering such a wide spectrum.

There is a world of difference between ordinary sexual touching and oral sex, for example. Most people outside this place think so, too. For the first time, we have an opportunity to make that differentiation.

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

We do, but we must be careful when making such a distinction. As I have said, the more we try to draw distinctions, whether in terms of activity or age, the more problematic things become.

I shall be interested to find out how many prosecutions there have been, but whatever the number, we are legislating now. I advanced the proposition that such offences are possible and I agree with the hon. Gentleman that the activities are not acceptable. In the light of that, we should create the offence and leave it to the prosecutor to decide, with guidance, whether it is in the public interest to bring the case to court. In that way, we combine good legislation with sound common sense and public interest.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs) 3:00 pm, 11th September 2003

I should like to reflect on some of the points made by the hon. Member for Beaconsfield. I agree with what he says; that is probably because of my age, rather than anything else.

The linkage between clauses 10 and 14 is the priority area, and arguments have been put forward strongly for sorting out under-18-year-olds and over-18-year-olds throughout the clauses. I should like to introduce a cautionary point into the strong argument made by the hon. Gentleman. If it were thought to be right to condone heavy petting but heavily criminalise anything else, youngsters might not seek birth control and other advice. They might not think that they would go on to act in a criminal manner, although of course they might once they were in a situation to do so.

There is a lot more teasing out to be done on that point, because we are putting people who may become very involved in the activity that they are undertaking at risk of their own actions. I hope that our discussion on the amendments is useful; it is teasing out some points.

I was reflecting also on a point that the hon. and learned Member for Redcar (Vera Baird) made this morning about not wanting to put someone in court to justify that there was no consent at the age of 12. There is a balance. There is concern that young people may be put in a criminal situation because of the way the legislation is phrased—I am particularly thinking of the impact of clause 14—yet every time we try to do something about that, we end up implying that they will end up in court. The justification for leaving the legislation as it stands is that most such cases do not get to court anyway. I am wondering whether we need to be as concerned about that. I suppose I am asking which situation is more likely to end up in court. I just thought of that over lunch; I am sorry, I was not very quick-witted, but the matter is not in my legal frame.

Photo of Vera Baird Vera Baird Labour, Redcar

Another point that I sought to make this morning, although perhaps I did not articulate it well enough, was that I would not have thought it a bad principle to introduce into criminal

law the notion that a sub-13-year-old can consent, because that may have all sorts of knock-on effects in defending other kinds of case. That was a sub-text in what I said.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I thank the hon. and learned Lady for that.

The Minister responded to some of the new clauses in the group. If I deal with them now, it will save us time later. Yes, there is repetition of some of the points that we have discussed already, but the amendments not only clearly lay out that under-18-year-olds should be punished with different levels and types of sentences, but relate to the need for a full, multi-disciplinary assessment.

The amendments refer specifically to youth offending teams. I mentioned that on Tuesday, but because I said it, rather than putting it in the amendment, I did not get a response, so I shall make that point again. The need for a full multi-disciplinary assessment, particularly in relation to the younger age group, is so important. I am interested to hear that the Minister is so enthusiastic about the Manchester project he has recently visited. What steps can be taken to ensure that such provision is available across the country? That is not an aside, because the subject is integrated into the amendments.

There is desperate need to identify problems at an early age, and ensure that they are acted on and treated before we get into worse situations. Certainly, after last night's presentation, it seems clear that it is crucial to identify problems and to take action as early as possible. We can visit such wonderful projects—as well as that in Manchester, there is a smaller one in Dorset—but we need to know that there will be a national programme to tackle such issues.

I hope that the amendment has drawn out more useful discussion and further food for thought and that we will continue this debate, because we need to find a solution. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I beg to move amendment No. 137, in

clause 10, page 4, line 21, at end insert

'causes B harrassment, alarm or distress and'.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

With this it will be convenient to discuss the following:

Amendment No. 138, in

clause 10, page 4, line 25, at end insert—

'( ) a person does not commit an offence under subsection (1) if—

(a) the sexual activity is consentual;

(b) the sexual activity does not involve penetration of the mouth, vagina or anus, and

(c) A was in a pre-existing relationship with B prior to reaching the age of 18 and their sexual activities were not considered a sexual offence under section 14.'.

Amendment No. 132, in

clause 10, page 4, line 27, at end add—

'(3) Conduct by A which would otherwise be an offence under this section shall not be an offence if.

(a) B is aged between 13 and 16 and A is no more than 3 years older than B.

(b) B has the capacity to consent to that conduct.

(c) B does consent to that conduct.

(d) the conduct does not involve penetration.

(4) B will be regarded as having the capacity to consent to conduct by A only if B is capable of understanding the nature and implications and reasonably foreseeable consequences of such conduct.'.

Amendment No. 140, in

clause 14, page 5, line 33, at end insert

'unless

(a) the sexual activity is consentual;

(b) the sexual activity does not involve penetration of the mouth, vagina or anus, and

(c) there is no significant difference in the age or mental or physical maturity of the persons involved.

( ) A person under 18 commits an offence if he does anything that would be an offence under sections 11 to 13 if he were 18'.

Amendment No. 141, in

clause 14, page 5, line 33, at end insert—

'(1A) Notwithstanding subsection (1) it is a defence for offences under sections 10 to 13 and 15 in respect of a complainant who is 10 years or more but under the age of 16 where the complainant consented to the activity and the defendent is—

(a) 13 years or more but under the age of 18,

(b) less than two years older than the complainant, and

(c) is not in a relationship of dependency.

(1B) No person aged 10 to 13 shall be tried for an offence under sections 10 to 13 and 15 unless the defendent is in a relationship of dependency with the complainant.'.

New clause 7—Pre-existing sexual relationship—

'(1) Conduct by a person (A) which would otherwise be an offence under section 10 against another person (B) is not an offence under that section if, immediately before A turned 18 years, a consensual sexual relationship existed between A and B.

(2) Subsection (1) does not apply if at that time sexual activity between A and B would have been unlawful.

(3) In proceedings for an offence under any of section 10 it is for the defendant to prove that such a relationship existed at that time.'.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I shall speak only briefly about amendments Nos. 137 and 138, and my hon. Friend the Member for Beaconsfield will speak to other amendments in this group.

All hon. Members know the problem that we are addressing because we have identified it. We are now trying to find a way through it. With regard to amendment No. 137, I ask the Minister whether there is any fundamental objection to the clause being amended in that way. I am addressing the situation of a person aged 17 having a relationship that falls short of full sex with—if it is a man—a girl whom he knows to be 15. He might have known her or been friends with her for some time. They form a relationship that involves sexual touching. We have all been round and round the arguments about whether that should be a criminal offence—whether the person should be questioned, warned, subject to guidance and so forth.

What if the clause were amended to read as follows:

''A person aged 18 or over (A) commits an offence if—

(a) he intentionally touches another person (B),

(b) the touching is sexual, and''

it causes the other person

''harassment, alarm or distress''? What is the objection to that? I pulled the phrase straight out of public order legislation. It is a common legal phrase. It covers a recipient of those attentions who finds them unwanted—they cause her ''harassment, alarm or distress''—but it also offers protection for what we loosely referred to as a genuine relationship. All I need from the Minister is an answer to this question: is there a legal problem with my amendment?

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

I understand the hon. Gentleman's point. However, at the Metropolitan police presentation yesterday evening, which I think he attended, a point was made about the difficulty of dealing with cases where a child who was being abused did not regard the attention as unwelcome and did not understand that what was happening was not normal.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I recall that point being made. The hon. Gentleman is right, which is why my amendment might not be right. Incidentally, it was drafted well before I attended that presentation, after which I might have been wiser. However, I am dealing with someone who is 15 and over as opposed to 13, so my arguments might apply to some extent. All I need to know from the Minister is this: if he does not like the amendment, why does he not like it—what are the principal objections to it?

My amendment No. 138 was, effectively, proposed by Brook, which is the country's leading provider of free, confidential sexual health advice and contraception to the under-25s. It is fair of me to table it, on the basis that it might be a helpful way forward. It is linked to an amendment to clause 14. If it is not a helpful way forward, the Minister will undoubtedly tell me. I look forward to hearing from him.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I shall try briefly to look at the other amendments. As I said earlier, I see amendment No. 132 as the key amendment—particularly in light of the last group. I should like briefly to speak to that and to explain it, although the Minister will then tell me that it is flawed for a series of procedural reasons that I had not previously understood.

Rather than considering clause 14, which provides for a different sentencing regime for a person under 16—different from that for persons over 18—in relation to the offences in clauses 10 and 13, it is easier to focus on clause 10, which deals with sexual touching, and, having accepted that that could be an offence as defined in that clause, provide an exception there. I shall read my amendment to show how narrow the scope of the exception would be:

''Conduct by A which would otherwise be an offence under this section shall not be an offence if.

(a) B is aged between 13 and 16 and A is no more than three years older than B.

(b) B has the capacity to consent to that conduct.

(c) B does consent to that conduct.

(d) The conduct does not involve penetration.

I hope that paragraph (d) is sufficient to cover my wish to exclude penetrative sexual activity. The amendment continues:

''B will be regarded as having the capacity to consent to conduct by A only if B is capable of understanding the nature and implications and reasonably foreseeable consequences of such conduct.''

For example, that would prevent the exploitation by a 15-year-old boy of a 13-year-old who might have some degree of learning disability. I suggest to the Minister that, in view of all the problems he has correctly identified, that will probably be the high point of my attempt to get the Home Secretary's magnum.

It would be useful to know the circumstances in which a prosecution would currently be brought within those defined criteria. I suspect that it will turn out to have happened hardly ever, if at all. Although I shall not press the matter to a vote, we may have to come back to it on Report. My amendment would still provide adequate protection against paedophiles—older people preying on the young—and would continue to provide protection for those aged between 13 and 16 who, for whatever reason, do not have the capacity to consent because they do not understand the nature and quality of the acts in which they are engaging. It confines the exception to the activities of two people together, whether boy and girl, girl and girl, or boy and boy.

I have not sought to affect clauses 11, 12 and 13. That may seem a bit strange. Some people might think that causing a child to watch a sexual act is less serious than sexual touching, but I am not sure whether I agree. One appears to have a natural origin, whereas I sometimes think the other involves witnessing scenes that are far more depraved and unpleasant than the activities in which two people would reasonably and normally get up to.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

I rather agree with the hon. Gentleman about that, not least because bullying may lead, particularly in boys' schools, to boys forcing boys to watch other boys do things. That is not entirely unknown—and it is just as cruel and vindictive an activity as anything else.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I think the hon. Gentleman may have misunderstood what I said. I was saying that the amendment would not legalise somebody being forced to watch something. Perhaps I have misunderstood what he said. I shall try to deal with what he possibly meant, which is that somebody may be bullied into consenting to sexual activity. In that case, they would not have given consent. I accept that it may sometimes be difficult—this is a legitimate and important point—to persuade somebody who has been bullied into consenting to sexual activity to admit that that is what happened.

We know that, in the context of sexual activity between adults—the hon. and learned Member for Redcar has raised the point in relation to rape cases—it is often difficult for somebody to come forward and to state that they were bullied and coerced into doing something that they did not wish to do. There, I think, the hon. Gentleman has a good point. That is an evidential problem, which is likely to exist in most circumstances. I accept that it might be possible to

have evidence other than the evidence of the victim, but one certainly needs the evidence of the victim if one is to mount a prosecution on the basis that consent did not occur.

This is the only possible loophole that I can think of that would allow us to deal with the Home Secretary's difficulties. He was plainly anxious about criminalising what he regards as perfectly normal adolescent activity. I accept that there are possible downsides but I hope that the Minister will look at the matter seriously, if not today, then perhaps we can come back to the matter on Report.

Photo of John Randall John Randall Conservative, Uxbridge 3:15 pm, 11th September 2003

I apologise to the Committee because I was unable to attend the full sitting this morning.

I congratulate my hon. Friend on getting very close to something that might be acceptable. I understand the problem and I think that the Committee is gradually making progress towards resolving it. I would not run to a magnum of champagne, but perhaps a can of lager from Uxbridge.

I still have a problem with the whole idea. I understand the problems, but the issue must be resolved; there will be great concerns about it, not only within the Committee but outside it. Has the Minister had any conversations with the Department for Education and Skills about what guidelines it would give on sex education with regard to those under 16? Will those giving sex education be telling people that certain touching is officially a crime, but that people will be all right up to a point? Or would those teachers be in danger from a parent, perhaps more prurient than others, saying that their child has been told that touching is okay, even though it is a crime? I am wondering how the Department for Education and Skills would get around the matter. Before I can sit down and be happy that we have tried our very best, I would like to know what has been happening on that point.

Photo of Vera Baird Vera Baird Labour, Redcar

I had not intended to say much today, but I am driven to my feet by a craving for champagne. I worry a little whether I have understood the position properly. I think that the position is that if someone aged between 13 and 16 is raped by someone not much older than them, there will be a defence of consent. If I have misunderstood that, I am pleased to have that corrected.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

No, no; indeed not. I have specifically drafted amendment No. 132 to relate to sexual touching without penetration, which is why it is provided for in the amendment. It would not cover rape or any form of penetrative sexual activity at all.

Photo of Vera Baird Vera Baird Labour, Redcar

I am grateful for that, but what would prevent a defence of consent in the Bill to the rape of someone aged between 13 and 16? I ask that rhetorically. [Laughter.]

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

I call Paul Goggins to answer that rhetorical question.

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

I will either have a conversation with or write to my hon. and learned Friend.

My overall observation returns me to a comment made by the hon. Member for Beaconsfield during a very passionate defence of the importance of the age of consent. The more we try to change the lines regarding age, no matter how reasonable it may appear on paper, the more problematic it becomes. Inadvertently, our efforts to win the champagne may send out an unfortunate message from this House regarding the age of consent. It is important that we hold that as a backdrop to the debate. It is central that we offer that protection.

The hon. Member for Woking (Mr. Malins) asked why there would be any problem in adding the phrase,

''causes B harassment, alarm or distress''.

I think that my hon. Friend the Member for Walthamstow (Mr. Gerrard) answered that question, in part at least, very well indeed. Perhaps because the child has been abused, perhaps for other reasons, that activity may not be seen by them as causing that harassment, alarm or distress, but it is not defensible in any way whatever and needs to be caught by the Bill.

The hon. Member for Woking asked me gently to respond to the other part of the question, to which I say the following. Clause 10 applies to offenders over 18, so I give him the scenario of a 50-year-old engaging in sexual intercourse with an 13-year-old where the prosecution have to prove that there has been harassment, alarm or distress. They will have to prove in court the issue of consent causing more distress for the child involved.

Mr. Malins indicated assent.

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

The hon. Gentleman nods. That is a sound argument showing why his helpful and constructive suggestion would not work.

The hon. Member for Beaconsfield asked me again about prosecutions. I promise to get back to him on that. I hope that there are not many. None of us wants to think that such cases occur in great numbers, but we would want prosecutions to happen where appropriate. I return to the combination of good, solid legislation coupled with sensible guidance, which gives us good law and common sense in practice.

The hon. Gentleman asked me further about issues relating to lack of consent. I give him the example of an adult—I will not put that adult in a position of trust—on whom the child has what used to be called a crush, to the point where sexual activity is taking place. That child feels that she loves that individual and will want to protect him, and will not give evidence against him. We have a scenario where a child is placed in the position of having to give evidence to prove the case for the prosecution, which is totally unwarranted. If we move those goalposts we hit the problem that in order to prove the case we have to put children in distress and question their consent. I put it to the Committee that as soon as we try to add greater clarity to the provision, we actually introduce more complexity.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

It has been an interesting debate. There will be more interesting debates later this afternoon. I

am grateful for the Minister's response. It may be that my hon. Friend the Member for Beaconsfield would like to intervene to make a few comments. It will fall to me in a moment to ask leave to withdraw the amendment. I do not do so yet in case others wish to make concluding remarks. I believe that they do not. Having had a good debate, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I beg to move amendment No. 160, in

clause 10, page 4, line 26, leave out from 'offence', to the end of line 27 and insert—

'(a) under subsection (1)(c)(i) of this section is liable on conviction on indictment to imprisonment for a term not exceeding 14 years,

(b) under subsection (1)(c)(ii) of this section is liable—

(i) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(ii) on conviction on indictment, to imprisonment for a term not exceeding 7 years,

(iii) in determination of the sentence, consideration must be given to the age differential between A and B.

(3) A person aged below 18 years at the time of the offence—

(a) prior to sentencing, shall be subject to a comprehensive assessment by a multidisciplinary agency or youth offending team,

(b) shall only be subject to notification requirements under part 2 of this Act following an assessment of the risk that he poses to the public.'.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

With this it will be convenient to discuss the following:

Amendment No. 139, in

clause 10, page 4, line 26, after first 'on' insert—

'(a) summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;'.

Amendment No. 165, in

clause 11, page 4, line 38, at end insert—

'(3) Unless subsection (2) applies, a person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction or indictment, to imprisonment for a term not exceeding 7 years.

(4) A person aged below 18 years at the time of the offence—

(a) prior to sentencing, shall be subject to a comprehensive assessment by a multidisciplinary agency or Youth Offending Team.

(b) shall only be subject to notification requirements under part 2 of this Act following an assessment of the risk that he poses to the public.'.

Amendment No. 168, in

clause 12, page 5, line 14, at end insert—

'(3) Unless subsection (2) applies, a person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 3 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.

(4) A person aged below 18 years at the time of the offence—

(a) prior to sentencing, shall be subject to a comprehensive assessment by a multidisciplinary agency or Youth Offending Team,

(b) shall only be subject to notification requirements under part 2 of this Act following an assessment of the risk that he poses to the public.'.

Amendment No. 171, in

clause 13, page 5, line 30, at end insert—

'(3) Unless subsection (2) applies, a person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 3 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.

(4) A person aged below 18 years at the time of the offence—

(a) prior to sentencing, shall be subject to a comprehensive assessment by a multidisciplinary agency or Youth Offending Team,

(b) shall only be subject to notification requirements under part 2 of this Act following an assessment of the risk that he poses to the public.'.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I shall speak to amendment No. 139. I will take some persuading that the amendment is not acceptable. The more I think about it, the more compelling I find it. Under clause 10, the position on punishment is as follows: the offence, which may vary in severity from a minor offence to a very serious one, is triable only on indictment. That is significant. To draw a parallel from the magistrates courts, there are many offences that are triable only summarily. They are minor offences, such as careless driving. Other offences are triable only on indictment, because of their extreme severity. They can be tried only by a Crown court, not a magistrates court. Such offences include murder. Other offences, such as theft, are triable either way. A low-level theft can be tried in a magistrates court, which has the power to give a statutory fine or six months' imprisonment. If the theft is severe, it may be tried in the Crown court.

For the life of me, I can see no reason why the offence of sexual activity with a child should be regarded in every single case as so serious that it can be tried only in a Crown court. There must—I repeat, must—be examples in which the sentencing powers of the magistrates would be sufficient. Perhaps that would be so in most cases, or perhaps in some, but there must be some cases. Surely it cannot be right that every single allegation under this clause would be deemed suitable to be tried before a jury. Remember that the position in a magistrates court, after the person is arraigned, is as follows: if the Crown thinks that the either-way case, such as a case of theft, which can be tried in either court, is so serious that it can be tried only in the Crown court, it will say so and the magistrates will commit it for trial. There is no danger of terribly serious cases remaining in the magistrates court.

Surely we should retain the option—perhaps it would be used often, or perhaps occasionally—of trying such cases in a magistrates court. Why is the offence triable only on indictment, as opposed to summarily as well? Have I missed anything? If I am right, surely my amendment covers both situations.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am waiting in haste to hear the Minister, but unless I have misunderstood how statutes are drafted, my hon. Friend is absolutely right and clause 10 provides only for trial on indictment. If that is the case, that raises an interesting question. To jump back to my argument on the previous group of amendments, the suggestion is that only extremely serious cases will go to trial. That is probably not what the Minister intends. If a 17-year-old sexually touches a 15-year-old in circumstances—[Interruption.] Let us say that an 18-year-old inappropriately touches a 15-year-old and a prosecution is brought. There would be instances in which it would be possible for a magistrates court to dispose of such a case.

The difficulty is that the phrase ''sexual activity with a child'', which has been drawn from the previous statutory framework, covers everything from consensual sexual intercourse with a 15-year-old, which is not rape, but is still a very serious offence if the other person involved is, say, a 35-year-old, right down to an 18-year-old having a snog behind the bike sheds with a 15-year-old. At the bottom end, there must surely be provision for a summary trial.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office 3:30 pm, 11th September 2003

On first reading those clauses, one imagines some horrendous scenarios that would trouble us all. The penalties in the Bill reflect the sense of seriousness that we would feel. They are the maximum penalties, but none the less, the crux of the argument made by the hon. Member for Woking—whether trial could take place in a magistrates court or would have to be in a Crown court—deserves further reflection. If he will withdraw his amendments, I will undertake to give the matter further consideration, and either I will provide a compelling argument, or he may see something on Report that will give him some cheer.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

There may be an argument for considering the point in the context of clause 11 as well. As I said earlier, the circumstances outlined in clause 11 are on the whole likely to be more serious than the bottom end circumstances outlined in clause 10.

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

I acknowledge that the hon. Gentleman was intervening on me. If any other member of the Committee would also like to intervene, I will of course give way.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

I am grateful to my hon. Friend. Will he clarify whether a sentence on indictment could be for six months or anything up to the maximum sentence? The fact that the case could not be tried summarily does not preclude the possibility of a six-month sentence on indictment.

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

I made the point initially that 14 years is the maximum sentence available, so the sentence could be anything up to that maximum. Central to the argument advanced by the hon. Member for Woking was whether the case could be tried in a Crown court only. The argument is such that I need to reflect on it further. I need to provide a compelling argument as to why that should be available only through the Crown

court for myself—and certainly for the hon. Gentleman. If there is strong merit to the argument, there will be something that might help him on Report.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

The charges are very serious. If proved, they will remain on people's records for ever. They will place people on the sex offenders register and prevent them from working in certain fields of employment for ever. Therefore, why should not people who are charged with those offences be given the absolute benefit of a jury trial?

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

I appreciate my hon. Friend's encouragement to resist the argument by the hon. Member for Woking.

I return to the first point that I made in response to the hon. Member for Woking. On first reading the clauses, one immediately contemplates a horrendous scenario where something terrible has happened, and where that has happened one expects the book to be thrown at the individual responsible. If the maximum penalty of 14 years should be handed down, it should be handed down.

That is not the question that the hon. Gentleman poses, however. He asks whether it is possible that there is a scenario where that is not appropriate. In theory, it may be true; in practice, however, it may never, or seldom, happen. In many other parts of the Bill where other very serious offences and penalties are outlined, there is the possibility of a summary trial. In fairness, I should also consider whether that is appropriate in the matter before us. Notwithstanding that, my hon. Friend's comment about the seriousness of many such offences stands firm, and I stand behind that. The argument advanced by the hon. Gentleman is, however, worthy of further reflection.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The hon. Member for Lancaster and Wyre (Mr. Dawson) makes an interesting point. To confirm the position with him, however, the magistrates court may give six months imprisonment, and the Crown court may give a conditional discharge or a £5 fine. They can go from the bottom end to the top end. It is wrong to include in the Bill the provision that only a judge and jury can try the case.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

Is the hon. Gentleman envisaging a situation where a charge as serious as this would have to be tried before magistrates, and the defendant would have no option?

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

No. When an offence is triable either way, such as theft, the court hears representations from the prosecutor, who might say, ''This is such a serious case that we believe that your powers of punishment are not sufficient, and these are the reasons why.'' That case will go to the Crown court because it is too serious for the magistrates court. However, the prosecutor might say, ''This is such a down-market case that we think that your powers of sentence are sufficient,'' in which case the defendant has the option to go to the Crown court in any event—even for a small theft, for example, where the powers of the magistrates court are absolutely sufficient. There would be no injustice in the matter.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

My hon. Friend might agree with me that one reason why this matter has arisen is that indecent assault and unlawful sexual intercourse with a child between 13 and 16 have been rolled together. If the Government are worried that there might be cases in which unlawful sexual intercourse with a child aged between 13 and 16 would end up in the magistrates court, the solution is to split those things—to go back to the previous position, in which they were separate—so that one is triable on indictment only, and the other is triable either way.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I hear what my hon. Friend says. He makes an interesting point.

Photo of John Randall John Randall Conservative, Uxbridge

I know that this will expose my great ignorance but, for the clarification of the Committee, could my hon. Friend say who makes the decision about this? The prosecutor puts the case; will the magistrates decide?

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

That decision is, in effect, a mixture. If the prosecution says that the offence is so serious that the magistrates' powers are not enough, the magistrates will make a decision based on the prosecutor's representations about whether the case goes to the Crown court, regardless of what the defendant wants. If it is a very minor case—the theft of a bottle of whisky from a supermarket, for example—and the prosecutor says it is so down-market that the powers of the magistrates court are entirely sufficient, funnily enough the defendant still has the right to go to the Crown court. However, when the allegation is serious, the court will make the decision.

I am extremely grateful to the Minister and I do not want to say any more on the matter. We will not press the amendment to a Division, for obvious reasons. It is not the lead amendment, and we look forward to hearing the views of the Minister and his officials in due course. As the lead amendment in the group was tabled by the Liberal Democrats, it might be for the hon. Member for Mid-Dorset and North Poole to formally seek the leave of the Committee to withdraw it.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 ordered to stand part of the Bill.