Sexual Offences Bill [Lords]

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Vera Baird: I hope that I did not jump up too quickly; I thought that my hon. Friend was going to end his peroration. Although I sympathise with the reasons why the amendment was tabled, clause 14 applies clause 10, which is intended to include penetration, to under-18s. Despite his support for the age of consent staying at 16, if his amendment were made, it would appear to give a defence to somebody who penetrated an under-16. Did he intend the amendment to clash with the age of consent?

Mr. Dawson: Actually, it is what I intended. It is far too difficult for us to define different forms of sexual experience. We do not prosecute under-16s who become pregnant. If we are effectively to help young people who are involved in consensual sexual relationships, we must treat them decently. The response to any form of sexual experience for under-16s should not be condemnation, which is implied by clause 14.

We should understand the position of under-16s. We should try to help, understand and assist them—we desperately want to protect them—but they must know that such behaviour is illegal. Such behaviour should remain illegal, and the age of consent should remain at 16. Unless we give the age of consent credibility, which is the purpose of the amendment, we will lose all the under-16s who are engaged in sexual relations. They should see that the Bill is a great attempt to protect them from sexual exploitation, and the implications of clause 14 are preposterous and potentially extremely damaging.

Mr. Grieve: I fully understand the hon. Gentleman's intention. Indeed, the intention is similar, albeit differently worded, to that of the amendment moved by the hon. Member for Romsey (Sandra Gidley) this morning and amendment No. 132, which was my attempt. The amendment is, of course, cast in a different way because it preserves the offence while leaving a saving provision to a jury that concludes that, despite the facts, there is no need to convict. Indeed, a jury would have the option not to convict because it is completely happy with what has been going on.

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I remember having a discussion at the Bar—not the Bar downstairs—with a barrister about criminal law. We were arguing that it might be possible to get rid of the criminal law entirely, so that people could do whatever they liked, but that if the prosecutor thought that what somebody was doing was wrong they could prosecute them and go in front of a jury, which would have three possible verdicts—that the activity was in order, out of order or totally out of order—and the person would then be dealt with accordingly.

The problem with the amendment tabled by the hon. Member for Lancaster and Wyre is that it raises the obvious possibility that the definitions are so loose that somebody who does some heavy petting in Lancaster might appear in front of a Lancaster jury and see it decide that the activity is in order, while a defendant in Norwich might appear in front of another jury for doing the same thing and, because of the flexibility, see that jury decide that the activity is out of order. I hope that the hon. Gentleman recognises that the degree of uncertainty that that would produce in relation to people's behaviour and conduct is such that the administration of justice would become very difficult. People would legitimately complain that they had a reasonable expectation that what they were doing was in order. They would ask why, suddenly, when they had read in the paper that the activity was held to be in order somewhere else, it was held to be out of order now that they were doing it. However, that is the flexibility that is envisaged.

I will listen carefully to what the Minister has to say on the subject, but I fear that, despite its attractiveness, the amendment would lead to enormous problems. We must either provide a definition of what is acceptable and what is not, or we must stick to what the Minister has proposed, which is that this entire category is unacceptable, without the saving provision.

Under the Minister's proposals, the protection to a defendant is twofold. The first is that the prosecution does not prosecute because it exercises its discretion not to do so. The second, which has always been present, is that even after conviction the judge gives an absolute discharge and says that he regrets that the prosecution brought the case and that he hopes that such a case never gets brought again, which builds a volume of case law on which the prosecutors subsequently exercise their discretion.

I hesitate over the hon. Gentleman's proposal, because it might not work.

Mr. Dawson: Part of my argument is that the reality of the situation is that, hopefully, there are many stages at which these issues can be dealt with long before they ever reach the police or the Crown Prosecution Service. Is it not every parent's experience that they are faced with the challenge of their young person saying, ''I want to do this because Fred's or Frieda's parents down the road allow them to do it''? Is not what we are facing adolescent sexuality, which is being challenged and subject to change?

Mr. Grieve: I accept that, but I am not convinced that the proposal should be incorporated into law,

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with the consequences that would flow from that for a person who gets things wrong. Somebody might be convicted even though they claim that they thought about the matter and they were absolutely convinced that what they were doing came within the category of ''ordinary, consensual adolescent behaviour.'' That is a difficult principle of law, and I do not know whether we should start going down that route. Law must have greater certainty than that.

Mr. Bryant: I think that I agree with the hon. Gentleman. Does he not think that there might be a thoroughly reasonable or fundamentalist Christian who believed that it was extremely extraordinary for two young people of 15 to be kissing, or even holding hands, whereas two liberal-minded people living in Hampstead or Highgate might hold completely different views on that? If the law is unable to be specific enough, it will be difficult to direct a jury.

Mr. Grieve: Indeed, I think it would not be possible to direct a jury at all. On the basis of the amendment, the judge would simply have to ask the members of the jury if they as reasonable people thought the case was all about ordinary, consensual adolescent behaviour. That is a complete defence, and one would have to leave it to them.

The proposal is attractive, but there will be people who rejoice because they get acquitted, and people who get convicted, who will feel upset and aggrieved because they will not understand it in the light of what they have done. I do not know what mechanism of appeal there could be. It would simply be a matter of the jury's view. I am wary of it. That is all I want to say on the subject.

4.15 pm

Julie Morgan (Cardiff, North): I support the amendment tabled by my hon. Friend the Member for Lancaster and Wyre. I put my name to it because I support the spirit behind it. I accept that there may be a problem with what is ''ordinary, consensual adolescent behaviour.'' We all know what my hon. Friend means and where he is trying to get to. Although the amendment is not perfect, I support the spirit in which it was drafted.

The message we give to young people is important and we must remember the high teenage pregnancy rate in this country. We must not give a punitive message to those young people who have become pregnant at an early age, and who we know engage in sex at an early age. The law as it stands clearly fails, because so many young people under 16 are pregnant. It is important that we give a message that we want to concentrate on young abusers in the Bill, and there is a significant number of them, as has already been said. They cause terrible anxiety and problems. In order to do that, we need to get rid of the concept that we are widening the net and drawing in behaviour that we know is ordinary and part of growing up.

Mr. Bryant: I sympathise with the point that my hon. Friend is making. My difficulty is with the word ''ordinary'' that she has just used. Another word for ''ordinary'' is ''normal''. It is very difficult to use those words without attracting value judgments, which, unless we are prepared to include them in the Bill,

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would make it almost impossible for people to gain justice.

Julie Morgan: I accept my hon. Friend's point. The clause needs to be more specific. The spirit behind the amendment is something that my hon. Friend the Member for Lancaster and Wyre has put forward clearly. We need to reach out to young people. The words in the Bill must be understood by young people. I have had the sort of experience that my hon. Friend said that he had when he spoke to young people in the youth parliament. Their concern about this sort of development in the Bill is a worry. We ought to bear that in mind, and it is in that spirit that I put my name to the amendment.

Mrs. Brooke: I attempted to obviate the need for clause 14. When I was knocked down over that, I thought, ''Oh well, it is probably better to go down the simpler route.'' I now feel rather disillusioned.

To return to the main principles, I think that clause 14 is very damaging as far as the way in which young people interact with society is concerned. We have to accept the culture of young people. I do not mean agony aunt columns in magazines, but the sort of magazines that they read, what they read about, the films that they are seeing and the books that they are reading. The clause does not match that at all and we owe it to young people not to give signals that everything that they do is wrong. I find it very worrying that we have had some exceedingly useful discussion and at times edged closer to a solution, but then the lawyers stand up. With all the struggles that we are having, I keep coming back to the point that we are reassured because not many cases will come before the courts if matters are left as they are, but every time we try to change them, a huge problem emerges about cases coming before the courts and how the law will be interpreted.

I would really like to find a solution to that problem. I wish that I had the skills, which I obviously do not, to find it. I just hope that we can keep working on it. We all had a mailing from a Mr. Bennion, which we did not have time to discuss and examine, so I do not know if there is anything in that that the civil servants will be able to consider. I support wholeheartedly every sentiment in the amendment, and I wish that we could find the way through.

 

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Prepared 11 September 2003