Sexual Offences Bill [Lords]

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Paul Goggins: 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

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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.

Mr. Dawson: 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?

Paul Goggins: 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.

Mr. Malins: 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.

Mr. Dawson: 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?

Mr. Malins: 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.

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Mr. Grieve: 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.

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

Mr. Randall: 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?

Mr. Malins: 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.

Mrs. Brooke: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 ordered to stand part of the Bill.

Clause 11

Causing or inciting a child to engage in sexual activity

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

Paul Goggins: I shall be brief. Clause 11 introduces the offence of causing or inciting a child to engage in sexual activity and covers any situation in which an adult intentionally causes or incites a child under 16 to engage in any form of sexual activity, whether or not that is penetrative. That will not only cover cases where an adult makes a child engage in sexual activity—such as sexual intercourse—with them, but those where an adult makes the child engage in such activity with a third party, whether or not that party is a willing participant or another victim. The offence

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will also cover cases where the adult makes the child carry out a sexual act, such as masturbation or stripping, for the sexual gratification of the adult. That closes a gap in the law that was identified last year, when an estate agent caused two young girls to strip in his office and, regrettably, there was no offence with which he could be charged. The offence can also be charged when the adult incites the child to take part in sexual activity, even when the activity itself does not take place—such as when, thankfully, a parent intervenes.

The prosecution shall be required to prove that the child is under 16. In cases when the defendant claims to have believed that the child was 16 or over, the prosecution will have to prove either that he did not hold such a belief or that it was not reasonably held. The provision concerning mistaken belief in age will not, however, apply when the child is under 13.

It is important to emphasise that we have no wish to interfere in the rights of an individual to engage in consensual sexual relationships within a lawful marriage. It is therefore the case that a defendant will not be guilty of the offence when he is lawfully married to the person under 16 and they are engaging in consensual sexual activity. The defence will not be available when the married person causes his or her child spouse to engage in sexual activity with another person. That marriage defence will, of course, apply only in relation to marriages that are contracted in another country where the legal age of marriage is below 16.

We take the firm view that it is the responsibility of every adult to have due regard to the criminal law and to place the well-being of a child above his own desires. The law should deal severely with any adult who knowingly causes or incites any child who has not reached the age of consent to engage in sexual activity. The protection of children should be at the heart of our legislation. The offence will send a clear message that any adult who causes a child under 16 to engage in sexual activity is committing an unlawful act and can expect to be punished.

Mr. Grieve: I welcome the clause although, as the Minister will be aware from my comments about clause 10, I wish to know whether the matter should be an ''either way'' offence, too. I appreciate that the act is different from sexual activity with a child, but we must face up to the fact that it will run across a spectrum of seriousness—from the 18-and-a-half-year-old who encourages his 15-year-old friend to have sex with his 15-year-old girlfriend to serious paedophile cases. Do we want that 18-and-a-half-year-old to be dealt with only in the Crown court? The Minister might like to consider that question.

I had intended to reserve my comments on the marriage exception until we discussed clause 16, which covers such a provision under clauses 10 to 15. I want to put down the benchmark that I have serious worries about the marriage exception provision. Many members of the public will regard it as deeply offensive. Why is it necessary? I need to hear a clear justification.

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I appreciate that we have no power to prevent people from marrying at much younger ages abroad than in this country, but I do not understand why that fact should compel us to accept behaviour in this country that would otherwise be regarded as criminal. If people were living in this country, having contracted the marriage abroad, I cannot for the life of me understand why they, exceptionally, should not comply with our laws, even if that might involve their not having sexual intercourse or sexual relations while they are here until one of the partners is aged 16 or over.

 

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Prepared 11 September 2003