Sexual Offences Bill [Lords]

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Paul Goggins: 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.

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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.

Mr. Grieve: 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Amendment, by leave, withdrawn.

The Solicitor-General (Ms Harriet Harman): I beg to move amendment No. 46, in

clause 15, page 6, line 15, after 'not', insert

'for the purpose of obtaining sexual gratification or'.

The Chairman: With this it will be convenient to take Government amendments Nos. 48 and 49.

The Solicitor-General: 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

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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.

9.30 am

Mr. Grieve: I welcome the Solicitor-General's remarks. The amendment is sensible and follows on from what was said in the other place. Although I shall return to the use of the words,

''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.

Mrs. Annette L. Brooke (Mid-Dorset and North Poole): 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.

The Solicitor-General: 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

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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.

Clause 16

Sections 10 to 15: marriage exception

Mr. Grieve: I beg to move amendment No. 149, in

clause 16, page 6, line 26, at end add

'and outside the United Kingdom'.

We come now to an important clause that causes me considerable anxiety. It provides a marriage exception, under which the

''Conduct of a person . . . which would otherwise be an offence under any of sections 10 to 14''—

including sexual activity with a child, causing or inciting a child to engage in sexual activity, engaging in sexual activity in the presence of a child and causing a child to watch a sexual act—would be decriminalised if A and B are lawfully married.

It would be possible, according to the laws of some foreign countries, for an individual to transact marriages with, for example, two or three wives—children perhaps as young as 12—and bring them into the UK. Indeed, there may be lower age limits in other countries—I am certainly aware of countries where the limit is as low as 12. The Solicitor-General may be able to help us with that. An individual may have sexual intercourse and carry out every other form of sexual activity with a child by virtue of the fact that it takes place in the framework of a lawful marriage. That is my understanding of how clause 16 will operate. Although I understand the origin of the clause, which lies in anxiety about respect for marriage under the Human Rights Act 1998, it is highly offensive to the majority of people in the country and will lead to potentially appalling consequences.

It is difficult to justify providing a marriage exception if people, having transacted abroad a marriage that would be unlawful in this country, wish to continue to have sexual relations in this country with their partner, bride or however else we wish to describe the person. Such a provision would provide a potential loophole for paedophiles. It is not beyond the bounds of possibility that a paedophile living in the United Kingdom might go abroad, procure and lawfully marry an underage girl in that country, bring the child back to the United Kingdom and say that, because of the marriage exemption, he was allowed to continue to have sexual relations with her. I shall wait to hear from the Solicitor-General whether I have understand the position correctly.

Such matters cause me great anxiety. A halfway house cannot be established, although I suppose that we could introduce one of different ages. However, that would not tackle the problem. We set laws in this

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country to protect children—those under the age of 16. The fact that the child may be married does not justify the existence of an exception and toleration of behaviour that would otherwise be regarded as improper. I appreciate that there are arguments the other way, such as the one that asks why people from perfectly respectable cultures who have come to this country, perhaps to seek asylum, should suddenly find that having underage wives—circumstances that were perfectly normal previously—is criminalised and prohibited until the girl reaches the age of 16.

However, on balance, the protection of such young children is paramount. It should be said that the laws of this country are that 16 is the age at which a person can be married and that sexual relations with children under that age are not sanctioned by the state. Of course, it would still be possible for the Director of Public Prosecutions to exercise his discretion in such matters and I very much hope that he would do so. I hope that, in approaching such cases, the Crown Prosecution Service would pay great attention to the fact that the marriage seemed to be lawful before embarking on an unpleasant and traumatic prosecution. That the Bill will simply provide a blanket exception worries me very much.

 

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Prepared 16 September 2003