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Paul Goggins: Behaviour such as full sexual intercourse taking place under a tree would be highly unprofessional and quite wrong. However, the hon. Gentleman asked me to say whether that act would be different from the act that I described. My immediate response is that the more outrageous the act, the more likely it is to be done in the knowledge that the children were watching and for sexual gratification purposes.
Mr. Grieve: Am I to understand that the sexual gratification is to be obtained from the act itself or from the fact that other people are watching it? The distinction will become extraordinary difficult for a jury to resolve. If the jury has to resolve that difficulty, a complicated question will be asked of it.
Paul Goggins: I do not think that a jury would have difficulty in drawing such a distinction. Clearly, such an act would be a sex offence. In trying to uncouple—pardon the pun—the two scenarios of whether it is engaging in the act or the fact that people are watching it that gives sexual gratification, I must say that such activity is all part of the same act of sexual
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gratification. I am sure that a jury would judge it as such.
Mr. Grieve: I am grateful to the Minister. I shall go away and think about the matter. I should be grateful if any member of the Committee has any views on it, which we can discuss afterwards. I remain slightly puzzled by the double requirement. If the activity is sexual and done deliberately in the presence of children, that is what we want to criminalise. To tell a jury that it can convict only if it is satisfied that the purpose of the act is sexual gratification is a complicated feature that is difficult to understand, as is the purpose behind it. Surely the clause is designed to stop an activity that is deliberately carried out in an inappropriate fashion.
Mrs. Brooke: I shall be grateful if the hon. Gentleman can deal with my query. There are two different tracks of argument. The two schoolteachers would know that their kiss was being observed, but would they have had an intention of that happening? I wonder whether the clause should state, ''knowing and intending that B should be aware''?
Mr. Grieve: The hon. Lady makes a good point. That could be an alternative approach. It would still remove that part of the clause which the amendment would remove. I am slightly sorry that I may have not got across my point. I may not even have a point, but I shall reflect on the matter. In the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: No. 50, in
Clause 20, as amended, ordered to stand part of the Bill.
Clause 21
Abuse of position of trust: causing a child to watch a sexual act
Amendment made: No. 51, in
Clause 21, as amended, ordered to stand part of the Bill.
Clause 22 ordered to stand part of the Bill.
Clause 23
Positions of trust
3.15 pm
Mr. Humfrey Malins (Woking): I beg to move amendment No. 145, in
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In this clause we are dealing with positions of trust. Early on in Committee there was concern about schoolchildren—particularly head boys or girls, for example—who are just over 18 and in a position of trust as far as those just under 18 are concerned. That has been rectified, but there is still an issue that I would like to consider concerning line 30 in subsection (5). The amendment would provide an exemption in relation to two people, one of whom is being educated at a school, and one of whom is not.
The amendment would cover the case of a gap-year student. It relates to a most unlikely scenario, but we are considering unlikely scenarios to see what might happen if they arise. It is not unusual for a young man to leave school and return shortly afterwards as a gap-year student. I have in mind the school in Leatherhead in Surrey that my son has just left. He left in the summer term, and this term, one of his best friends, who left at the same time as he, has returned to assist with sports coaching for some months. He is not a pupil; in effect, it could be argued that, under the Bill, he is in a position of trust in relation to other pupils at the school.
Of course, the sixth form, lower and upper, of the school contains a number of girls whom the boy has known—indeed, he has been part of the education system with them. They were chums while he was in the sixth form. Let us take the example of a girl who was in the lower sixth when he was in the upper sixth. The boy leaves and comes back as a coach for a term or two of sport, and she moves into the upper sixth. The Minister will have got the point already. I want to know, first, whether that gap-year student is in a position of trust and, secondly, whether he will have committed an offence under any of the provisions that refer to breach of trust in relation to one of the girls in the sixth form, subject to their both being the relevant age.
My amendment would protect the boy because he is under 21 and she is over 16, notwithstanding that he is undoubtedly in a position of trust, because he would have a regular caring responsibility and so on for the young girls in the upper sixth. It is a probing amendment and I do not propose to press it to a Division, not least because our voting strength has gone down by 33.3 per cent. in the past few minutes, and if our numbers go down any further there will be just me. I think that our honourable Whip is coming to our rescue. There are various reasons why I will not press the amendment to a Division, but I would like to hear from the Under-Secretary about it.
Mrs. Brooke: I understand the hon. Gentleman's point about the gap-year student, but when I first read the amendment I read it as applying to someone undertaking teacher training. A person who was doing teacher training at the normal age would fit into that category. It would be bad practice for anyone who was training to be a professional to be exempt on the grounds that they did not know. The onus must be on the professional institutions to ensure that that happens. Although I can understand the scenario as
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described, anyone who volunteers, which is more or less what we are talking about, must come under the same provision. Although I appreciate that this is only a probing amendment, it attacks what we are trying to do in this clause.
Paul Goggins: I appreciate the spirit in which the hon. Member for Woking (Mr. Malins) moved the amendment. I say to him in the gentlest possible way, because I know that that is the style he prefers, that, even if the amendment were right, it is probably in the wrong place, because it is in the bit of the Bill that deals with a position of trust. It should probably refer to the part that deals with the offences. Even if it were in the appropriate place, however, there are some flaws in his proposing that the person is under 21 when he starts work at the establishment and that the young person is 16 or over. I suspect that the purpose behind the hon. Gentleman's drafting was that those should be the ages at which the sexual relationship began. It is possible, however, for someone to have started work at the establishment when they were 19 and at the age of 40 mount a defence using the hon. Gentleman's amendment.
I strongly believe that age is no defence—the position of trust is the important thing. Age cannot be a defence. I am sure that the Committee will be united on that, and that the hon. Member for Mid-Dorset and North Poole would echo it, too.
The hon. Lady raised the issue of what an organisation and the professional bodies associated with it should do to ensure that people are aware of this piece of legislation. That is important. Under existing arrangements it is not solely for employers to inform teachers about their professional and statutory responsibilities. The standards for qualified teacher status, which were set by my right hon. Friend the Secretary of State for Education and Skills, require candidates to demonstrate that they are aware of and should work within the statutory frameworks relating to teachers' responsibilities. The Teacher Training Agency issues new teachers with guidelines on the legal framework within which they will be practising. People who are already teachers should be in no doubt about their responsibilities.
The creation of this offence in the Sexual Offences (Amendment) Act 2002 was widely reported and debated in the media and extensively publicised throughout the teachers' unions. Such behaviour has always been regarded as unprofessional and teachers have been liable to disciplinary action. It is right that even if a defendant were able to prove that he was not, for some reason, aware of his obligations under the law, that should not allow him a defence against this offence. The amendment would, in effect, provide an unlimited ''get out of jail free'' card for young teachers, regardless of whether they knew that their behaviour was wrong or constituted an offence.
We all know that in England and Wales ignorance of the law is no excuse. We cannot make an exception to that widely accepted principle.
Mr. Malins: Under my amendment, if the educational establishment had drawn the young gap-year student's attention to the section of the Act—or
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not, as the case may be—he would not have a defence. Is there not a little bit of merit in my general thrust? I appreciate the point about the 40-year-old starting a relationship, but it is a bit different when the boy concerned might be 19 and a bit and the girl is 17 and three quarters.
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