I beg to move amendment No. 148, in
clause 15, page 6, line 4, leave out 'arranges or'.
The clause concerns arranging or facilitating the commission of a child sex offence. In subsection (2), a definition is provided for circumstances in which a person does not commit such an offence. There is no offence if
''he arranges or facilitates something that he believes another person will do, but that he does not intend to do or intend another person to do, and . . . any offence within subsection (1)(b) would be an offence against a child for whose protection he acts.''
That let-out clause is designed to enable people to provide support—advice on contraception and the like—to those under 16 who are engaging in sexual activity.
I have no objection to the main purpose of the clause. However, I was a little surprised by the use of the words ''arranges or facilitates''. I fully understand that those words should be used in defining what constitutes the offence. To facilitate an offence is to carry out steps that might be seen to help its commission in a rather indirect way; to arrange an offence implies direct participation as the person who sets it up. However, I do not understand why there should be a let-out clause for someone who ''arranges or facilitates''.
If someone is providing contraceptive advice or trying to protect the physical safety of the child and is, in effect, tolerating the commission of an offence—the sexual contact—because there are other considerations to be taken into account, he is merely facilitating, not arranging. The danger that I perceive is that, by providing in subsection (2) that an offence is not committed if someone arranges
''something that he believes another person will do, but that he does not intend to do or intend another person to do'',
we are drawing the exemption much too wide. Under the guise of providing, say, contraceptive advice, someone could actually be setting up the meeting between the two people concerned, and providing accommodation and a setting in which an offence could take place. I do not think that the Committee should simply let the provision go through without further consideration.
At the risk of repeating myself, I have no difficulty with providing an exemption for those acting for the purposes mentioned in subsection (3), but none of those provisions could or should amount to the arrangement of the commission of the offence. My proposal is that ''arranges or'' be deleted.
I have before me a long speech that deals with all the complexities of the clause and the amendment, but the Committee will be delighted to know that I will not use it. Instead, I will tell the hon. Gentleman that, given that he accepts that ''arranges'' and ''facilitates'' should both be in the clause, and that he is referring to the exception, I should like to take a bit more time to reflect on the matter. We must ensure that we get those two words, both of which need to be in the clause, in precisely the order that attains the Government's objective.
In case I have not made myself clear, I am perfectly satisfied with the principle that the offence is arranging or facilitating the commission of a child sex offence. My view is that the exemption should be limited to the facilitation of such an offence and not its arrangement.
It is important because to facilitate can be as serious as making the arrangements. Given that the hon. Gentleman accepts that, and the fact that we are considering the nature of the exceptions, we shall reflect further on his point and no doubt return to it later.
I am extremely grateful. We might be able to consider the matter in more detail in the clause stand part debate. I look forward to hearing whether the Under-Secretary thinks there is merit in the points that I have raised. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On page 6, line 12 is the expression,
''protecting the physical safety of the child'',
which is one of the exemptions to arranging or facilitating an offence. Amendment No. 201 is a probing amendment, because I was puzzled when I looked at that list of exemptions. I have no difficulty with
''protecting the child from sexually transmitted infection''
''protecting the child from becoming pregnant''
or, perhaps slightly more controversially,
''promoting the child's emotional well-being by the giving of advice''.
However, the idea of protecting the physical safety of the child raised a question in my mind. What is it in protecting the physical safety of a child that could possibly lead to an individual arranging or facilitating the commission of an offence under clause 15? I should
be grateful to learn from the Under-Secretary or the Solicitor-General of some examples of why that paragraph is thought necessary.
In protecting the physical safety of the child, I should have thought that the last thing one is likely to be doing is arranging or facilitating the offence prohibited under clause 15. I touched on a possible example earlier: arranging for two young people under the age of 16 to have a room in a house in which they could have sexual intercourse because it was a better option than their doing it behind the bicycle sheds. However, we need some explanation and justification of that paragraph, as I could think of only one example, and I am not completely happy with that.
The hon. Gentleman has taken the example that I would have taken. I asked Committee members to put themselves in the position of the mother of a 14-year-old girl who has tried desperately to persuade her daughter that she should not be engaging in sexual activity with another person. The mother has tried absolutely everything, but none the less knows for a fact that her daughter is engaging in sexual activity down a back alleyway. In desperation, she might allow the activity to take place in the home, where she knows that, whatever other harm may befall her daughter, at least it is happening within the security of her own home.
Perhaps I may take another example. Someone who is involved in providing sexual advice to teenagers might be aware that a 14-year-old girl is engaging in sexual activity. He or she might counsel her as necessary, but still know that the activity is taking place, and perhaps, from the child's reports, that serious physical harm or pain is occurring. We would not want that person, who is providing much-needed advice in desperate circumstances, to be caught by the provisions of the clause; that is why the exceptions are included.
Extreme as some of the examples are, when they occur they will be very pressing and I hope that, in light of that, the hon. Gentleman will withdraw the amendment.
I think that the Under-Secretary has persuaded me that I would not want someone to be prosecuted in the example that we have just discussed.
My only concern is that the loophole is potentially very large and enshrined in statute; it is not a discretionary issue where, for instance, the prosecution would decide whether to prosecute. That is the reverse of what the Under-Secretary has been telling us in previous sittings: that the law would be very draconian but that members of the Committee could be reassured that it would not be used, nor would the guidelines have it used, in circumstances where it would be oppressive.
However, the clause provides a statutory exemption. On the question of physical safety, it is a pretty wide exemption, which might well be used by all sorts of people little better than pimps. They would say, ''I provided the accommodation in which the sexual activity took place because it was desirable for
the physical safety of the person concerned.'' Obviously, they would have to persuade a jury of that, but that raises the prospect of the exemption's wide use as an exculpation, or an attempted exculpation, for behaviour that is thoroughly undesirable. One inevitably has difficulties over wording; that is the one bit of the exemption that causes such difficulties. The others are sufficiently tightly drawn to make such difficulties much less likely.
My hon. Friend is developing an interesting argument; the exemption is fairly wide and he touches on the issue of persuading a jury. I am not certain—I wonder what view he takes—where the burden would be. Would it be on the defendant to establish the defence, or would it be up to the prosecution to negate it once it was raised, as would be the case with self-defence? That is a difficult matter for a jury.
Indeed. My understanding is that it would be for the prosecution to show, once the defence was raised—I assume that the defence would have to be raised; it would have to be suggested—that it could not possibly be said that the person's actions were for the sake of protecting the physical safety of the child.
I accept that juries have plenty of common sense but I think that the exemption would lead to a lot of hearings contested by individuals who have no merit to their defence whatever. It is terribly easy to say, ''It was better that I should have done these things,''—physical safety is very nebulous—''that I should have facilitated, arranged or allowed my house to be used. It was better that I should have driven the child to the rendezvous with the individual because I thought that that was better than for her to be walking the streets.'' It is very easy for a pimp to give such a defence for providing a 14-year-old girl to an older man.
I hope that the matter has been well thought through. I will not press the matter to a Division; I will withdraw the amendment. The Government's intention is perfectly laudable and absolutely right, but I urge the Under-Secretary to consider whether the matter could be tightened up; otherwise, I am slightly apprehensive that the exemption will be used as the standard, stock explanation in every case in which a pimp or a facilitator is accused of encouraging a child under 16 to engage in sexual activity.
In response to the technical point raised by the hon. Member for Woking (Mr. Malins), the burden is on the prosecution to disprove that a matter is an exception once the defendant has raised the issue. I also want to respond to the example of the pimp raised by the hon. Member for Beaconsfield (Mr. Grieve). It is important to appreciate that the exception will not apply if a person is acting to cause or encourage the sexual activity—we are not adding an exception that would allow people to actively encourage young people to engage in such activity.
As always with this Bill, we have to strike a fine balance. These exceptions have been included because professional organisations working with children and young people have pressed very hard for them—not least when this matter was discussed in another place.
We particularly want to ensure that adults acting in a professional capacity have the confidence to know in advance that this exception exists when they provide the advice and support that is so necessary. We feel that, with the help of the organisations that work directly with young people, we have struck the right balance, and I hope that my comments will offer some comfort to the hon. Member for Beaconsfield.
I am grateful. The Under-Secretary might like to consider, as I certainly will, whether there is any way in which this can be tightened slightly to make it clear that these people would be guilty of the offence and discourage people from running spurious defences; otherwise, the courts will get clogged up with such cases. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 makes it clear that a person will not be guilty of arranging or facilitating a child sex offence, and clause 74 makes it clear that he will not be guilty of aiding, abetting or counselling a range of other sexual offences against a child provided that he acts for the purpose of protecting a child's physical safety, protecting a child from pregnancy or sexually transmitted infection, or promoting a child's emotional well-being by the giving of advice. That is set out in clause 15(3) and clause 74(1).
As we have heard, these provisions were included in the Bill in response to concerns that it could criminalise those acting in the best interests of a child and out of genuine concern for the physical and emotional welfare of a child, and that it could also deter children from seeking the advice and medical care that they need in relation to sexual matters. The exceptions apply to anyone who acts to protect a child, including teachers, parents and friends.
However, when the clauses were debated in another place, concerns were voiced that the exceptions would allow abusive behaviour by predatory adults to escape prosecution. Following a suggestion that we made during the debate in another place, we have decided to take steps to make the exception tighter and less vulnerable to exploitation by someone who does not have the child's best interests at heart, which is taking forward the process of narrowing and widening the Bill to try to achieve an appropriate result. Amendments Nos. 46 and 48 add a further restriction to the exemptions in clauses 15 and 74: they restrict the exceptions to the offence so that they do not apply if the person is acting for the purpose of obtaining sexual gratification—for example, by talking to a child about the detail of sexual matters but without going so far as to encourage the child to have sex. We recognise that there are unlikely to be many cases where a person will be acting for sexual gratification without also acting to cause or
encourage the child's sexual activity. However, there may be cases where a person gives advice about sexual matters that falls short of encouraging sexual activity but where he gains sexual gratification from doing so. It is important to ensure that such people are not able to benefit from the exceptions. This amendment will strengthen child protection.
I know that hon. Members will be wondering what will be the evidence of sexual gratification if, in all other respects, what happened looked like something that the exemption clause was uniquely designed to protect from falling into criminality.
The evidence of sexual gratification may be available in the form of written text, or from other people. Some paedophiles, for example, write about what they are doing and they sometimes share such written material with others by e-mail or text message. The end result that we are aiming for is that someone would not be guilty of an offence if he acted in one of the four specified ways to protect a child or to promote its emotional well-being, but he would if he acted with the purpose of causing or encouraging unlawful sexual activity, as the Under-Secretary said, or—as in the amendments—he obtains personal sexual gratification from those actions. I ask hon. Members to support the amendment.
Amendment No. 49 is technical and corrects a drafting error—it has no effect on how the provisions in clause 74 would work in practice.
''for the purpose of obtaining sexual gratification''
in another context later during our discussion this morning, they are appropriate in this amendment and are therefore welcome.
I, too, welcome the amendment. I wonder whether in summing up the Solicitor-General will tell us once more—just so that hon. Members may be confident about it—whether it is clear that the sexual gratification is on the part of the person directly concerned. Are we still considering a third party, if their reason for being involved in the activity is to make money? For example, would a pimp, whose objective was making money—so the sexual gratification would be further down the line—be picked up under the amendment? I should like further clarification on that. The Solicitor-General has touched on that matter, but I should like to see it on the record.
I hope that I can assist the hon. Lady by taking her through the stages. First the offence must be considered. We then consider whether the person comes within the exception. If they do, it must be determined whether they fall out of the exception and back into the offence by virtue of obtaining sexual gratification. The pimp would not get into the exception. The question of whether he was obtaining sexual gratification would not arise, because
he would be guilty of the substantive offence and would not escape on account of the exception. Accordingly, the person would not need to be brought back into the offence by this further narrowing of the measure.
Amendment agreed to.
Clause 15, as amended, ordered to stand part of the Bill.