Clause 68 - Exposure

Sexual Offences Bill [Lords] – in a Public Bill Committee at 3:45 pm on 18th September 2003.

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Amendment made: No. 96, in

clause 68, page 33, line 9, leave out '(A)'.—[Paul Goggins.]

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I beg to move amendment No. 216, in

clause 68, page 33, line 10, after 'genitals', insert 'in a public place'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following:

Amendment No. 184, in

clause 68, page 33, line 11, leave out 'or' and insert 'and'.

Amendment No. 226, in

clause 68, page 33, line 16, leave out paragraph (b).

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I shall be brief. I do not wish to proceed further with amendment No. 216.

Amendment No. 226 would knock out the indictable nature of the offence. I wonder whether it would be more appropriate for this offence to be summary only. I cannot think of any cases in which it should be tried on indictment—they could all be covered summarily. I shall seek permission to withdraw No. 216 in a moment, but I should like the Minister to comment on why he thinks that the offences should sometimes be indictable.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Before we start the debate I should point out to the hon. Gentleman that if he wishes to press amendment No. 226 to a vote, he will have to move it formally in due course.

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

I shall respond to this group of amendments in the spirit in which they were moved.

Amendment No. 216 would restrict the offence of exposure to public places. There may be examples where such an occurrence in a private place could be distressing. One thinks of a child having a friend to stay and an incident happens. I take it that the hon. Gentleman accepts that.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

The Minister will be aware that this is one of the clauses that caused naturists anxiety, and they have lobbied Members about it. I am satisfied that the protection afforded in paragraph (b), which says,

''he knows or intends that someone will see them and be caused alarm or distress'',

is sufficient to ensure that naturists will not be wrongly criminalised as a result of the clause. Is the Under-Secretary also satisfied about that?

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

I have looked at the matter in great detail and have replied to many letters on the subject, and I am completely satisfied that the clause will allay any fears that naturists have that they could somehow be captured by the legislation.

The hon. Member for Woking (Mr. Malins) made a point about summary-only offences. That is a familiar debate to the Committee. We will attempt to ensure consistency in the Bill, but I should just say that it is not true that the activity would always be of a less serious nature. There could be situations in which it was more serious. Because of that, we want to give maximum scope to courts, so that the prosecutor and court could make the appropriate decision. We want to leave that breadth so that it is open and available to them.

M

He did not reassure naturists due a fundamental and obvious flaw in the logic. Fortunately numerous MPs and Peers agreed with British Naturism and eventually, but not until after considerable effort, the clause was amended.

Submitted by Malcolm Boura

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

I realise that I cannot move an amendment, but I should like to refer to one, if that is satisfactory.

I have received many representations from naturists, probably because I am lucky enough to live close to a beautiful naturist beach in Studland. Quite a few people retire to the locality in which I live because of it. There are still enormous concerns about the Bill, and I hope that the Under-Secretary will put a few more words on record to give comfort to the naturists. I understand that there are at least 5 million naturists in this country, although it is difficult to know the total. We are addressing the concerns of a great number of people.

I attempted to table a simple amendment to raise an issue that relates to Studland beach. There is a nice walk, which starts with a ferry trip, from Poole to Swanage. That walk goes through the naturist beach, and as one approaches the beach, there is a sign that says that there are naturists ahead, and says how far the area extends. In fact, there are postcards of the sign; I meant to buy one, but they have sold out, so the beach is well known.

The point is that even on the acknowledged naturist sites it is absolutely clear that a naturist knows that someone will see them. I must say that some people, once they reach the naturist beach, find it difficult to cope with the situation. I have walked the beach for many years with my children and we enjoy doing so, but I have sometimes taken guests who have reacted;

there are no two ways about it. That is why I simply suggest the words, ''knows and intends''. I should be interested to hear a response to that suggestion.

In more general terms, we must take on board the fear that the Bill will be used to suppress naturism. Because the offences are in the Bill as we have defined them, there is a fear that landowners, and even local authorities, will take the easy way out and will not be prepared to offer facilities.

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

I have had no correspondence on the matter, perhaps because, unlike the hon. Lady, I do not have a naturist beach in my constituency. Is there any evidence from naturists that, under existing law—we have heard what existing law can contain and be aimed at—they have been suppressed and harassed, and that the Bill would reinforce that? Or is it suggested that there has been no harassment or suppression in the past, but that it might start now because of the Bill?

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

I think that the concern is that, with such a rightly high-profile Bill, which rightly has such an emphasis on children, people will be much more cautious about what they give permission for on their land. That is why there is worry that the clause could have an unintended consequence of suppressing naturism. We are aware that naturists wanted it to have a sexual gratification element, so that they were definitively excluded from it. In turn, the Home Affairs Committee considered the matter extensively and listened to the evidence, but did not decide that that was necessary. However, it certainly wanted to protect naturism and felt that it was undesirable to criminalise it. I should be grateful if the Under-Secretary would say why it is considered unnecessary to introduce a further qualification relating to sexual gratification or to whether the activity was designed wilfully to provoke another person into a state of fear, alarm and distress.

Furthermore, naturists have said that if, for example, one of their members accepted a caution on a beach—which he might do as a simple way out of a difficult situation, rather than arguing—if we follow that through and put the clause with clause 81(1)(d) and clause 83, there is a fear that it could lead to someone being placed on the sex offenders register. It is important for the Under-Secretary to allay such concerns and put his comments on the record. I reiterate that I have a good mailbag on the issue and the fears remain. However, there is much gratitude for what has already been done to improve the clause.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Order. At the start of her remarks, the hon. Lady said that she could not move her amendment. There is a point of procedure whereby, when amendments are debated together, it is open to her to move her amendment formally at the end of the debate if she so chooses and to inform the Chair of her intentions.

Photo of John Randall John Randall Conservative, Uxbridge

The hon. Lady described a naturist beach. She said that there was a sign up about it. One of my innocent hobbies, which I share with the Government Whip, is birdwatching. The problem will probably apply to the next clause,

but if I were wandering along that beach with binoculars, would I be caught by the Bill?

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

At this point, I shall respond to the hon. Lady. The key point about naturists and the reason why I am confident that they will not be caught by the clause is that, unless a naturist intends to cause alarm to others, he will not be caught. The key point is the intention. We accept in good faith that it is not the intention of naturists to cause alarm or distress. I hope that I have reiterated my assurance to the Committee that I believe that naturists will not be affected by the Bill.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

The hon. Lady may have a point that the Under-Secretary has not quite answered. What about a naturist who occupies a beach in a public thoroughfare that is traditionally used by naturists? Clearly, he goes there intentionally to expose his genitals, but he knows that an individual walks along that beach who suffers great alarm and distress each time he sees the naturist. Does the naturist commit the offence because he knows that someone will see his genitals and be caused alarm or distress, but decides that, because the person is so unreasonable, he will go ahead with his activities? That ties in with the hon. Lady's amendment about whether the clause should read ''knows and intends'' as opposed to ''knows or intends''. The Under-Secretary did not answer that point.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office 4:00 pm, 18th September 2003

We are back to the issue of whether the naturist ''intends''. In the scenario outlined by the hon. Gentleman, there is clearly no intention.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

This is critical, and the hon. Lady's point is good. No prosecution would ever lie, but it is technically possible to commit the offence without any intention at all if a person exposes their genitals in circumstances where they know that someone will see them and be caused alarm or distress. We come back to the question of how reasonable that alarm or distress may be. People could be walking backwards and forwards on a nearby public footpath, and the naturists who occupy the beach could be in a constant state of anxiety that all it needs is for someone to see them and say that they are alarmed or distressed and—hey presto—they have committed the offence.

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

The hon. Gentleman seems to have some enthusiasm for his argument. I shall respond to the question why we do not state knowledge as well as intention. It may allay the concerns of hon. Members, including those of the hon. Gentleman.

If we added the requirement of knowledge, it would mean that in every case of prosecution the witness would have to give evidence that they were caused alarm or distress. That would allow an escape route or get-out clause for a genuine offender because there would have to be a witness in the witness box demonstrating and giving evidence that the event had caused them distress. That would not be appropriate. I hope that offers some reassurance.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

I am grateful to my hon. Friend, who has made an important point, which tells against the hon. Lady. The only time that I have been to Studland bay was when I did a parachute jump out of the back of a Hercules aircraft and we landed there. Since I was dressed as a vicar at the time, naturists on the beach might well have thought that they were about to cause offence and alarm. Presumably, there is also the matter of someone lying asleep on a nudist beach who could not be thought to have any intention, but who might cause offence.

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

I simply make the point again that offence is certainly not their intention and it is certainly not done knowingly. I do not believe that the clause as drafted gives any room for concern, and the naturists going about their normal activities on the beautiful beach in the hon. Lady's constituency have nothing to worry about.

The hon. Lady raised the issue of sexual gratification and advanced the argument for why—

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I am still not convinced by the hon. Gentleman, and I wonder whether he can answer this question. A person might have to walk along the beach at Studland or elsewhere regularly, but they might not like it and be distressed, and they could decide to bring a prosecution. The hon. Member for Beaconsfield is right: the person being prosecuted might have known that the other person was distressed, and that means—surely—that he is committing an offence. However, the nudist may not have intended to cause any great embarrassment or distress, so the problem is doing the watching rather than being watched.

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

I am in danger of disappearing down a plughole here, but I shall make a valiant attempt to respond.

In relation to knowledge, there must be alarm or distress. On proving intent, it does not need to be proved that there was distress. In the hon. Lady's question, it was clearly not the intention of the person she described to cause alarm or distress. Naturists do not need to fear that they will be caught by this clause.

Photo of John Randall John Randall Conservative, Uxbridge

I recently read about the naked rambler. I do not know whether he was trying to cause harm or distress, or whatever. My impression from the reports was that he was not, but that he caused it anyway.

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

Well, it is his intention that matters. As I recall, he intended to walk from Land's End to John O'Groats, not to cause alarm or distress, so he would not be covered by this piece of legislation.

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

Indeed, he wore a very sturdy pair of boots.

The reason why we did not see fit to include sexual gratification in this part of the Bill is that exposure can be part of an act of aggression, or loutishness. In such circumstances, there would be the intention of causing alarm or distress—and that should be covered. Such individuals would be missed out if there only had to be sexual gratification.

The hon. Member for Mid-Dorset and North Poole also asked about registration. Exposure can, in certain circumstances, be a serious, distressing offence, so it may be appropriate for there to be registration. Registration would apply if the victim were under 18, or if the offence were so serious that it warranted a prison sentence or a 12-month community penalty. Such penalties would signal that it was an extremely serious offence. For less serious offences there would not be registration.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

It has been a good debate—we may return to it on Report. I pause only to say that I am not entirely sure whether that is ever worth a trial on indictment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I do not wish to press my amendment to a vote, Mr. Gale.

Clause 68, as amended, ordered to stand part of the Bill.

Clause 69 ordered to stand part of the Bill.