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Mr. Humfrey Malins (Woking): Clause 61(3) refers to various categories of people. Will the Minister consider clause 73(2), which includes as possible defendants a slightly different category of person? Someone who is resident in the United Kingdom is an offender under that clause, but not under clause 61(3).
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Beverley Hughes: To respond to the question of my hon. Friend the Member for Walthamstow, clause 61(2) and (3), which applies to international trafficking, means that we can prosecute a British person listed under subsection (3), or an organisation listed under subsection (2)(b), who carries out such activity in any country, whether or not there is an equivalent trafficking offence in that country. If a foreign national commits an offence in the United Kingdom, we can prosecute that person. However, we cannot prosecute a foreign national who commits an offence in another part of the world. As for clause 73, a resident is covered because there is a requirement for dual criminality in such cases. There is no such requirement in relation to the trafficking offences, which is partly why we have drafted such a provision under clause 61.
Mr. Gerrard: Obviously, I understand the problems of trying to prosecute someone in another country. He would not be within our jurisdiction. I am worried about a foreign national in another country who has been acting in a way that would constitute an offence under the Bill and who is involved in trafficking. Let us suppose that that person enters the United Kingdom and, although he does not commit offences under the Bill while is here, we know that he had been involved in such offences in the past. I can imagine the potential for headlines in the press if such an event occurred and we were unable to touch that person when he arrived here.
Beverley Hughes: If we did not have evidence that that person came into country, continued his activities and had connections with people here, which he probably would have in the circumstances described by my hon. Friend, we could not prosecute him. However, because of the strong networks in which such people are involved, if that person had been involved extensively in trafficking elsewhere in the world, it is highly likely that he would be entering this country for a similar purpose. Given the strict limits of the hypothetical situation highlighted by my hon. Friend, it would not be possible to prosecute the person unless we had the appropriate evidence. If another country asked us to extradite him for the activities he had carried out there, we could do so.
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Question put and agreed to.
Clause 61 ordered to stand part of the Bill.
Clauses 62 to 64 ordered to stand part of the Bill.
Clause 67
Sexual activity in a public lavatory
The Parliamentary Under-Secretary of State for the Home Department (Paul Goggins): I beg to move amendment No. 118, in
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 227, in
clause 67, page 32, line 33, leave out paragraph (b).
Government amendments Nos. 119 and 120.
Amendment No. 228, in
clause 67, page 32, line 35, leave out subsection (2).
Government amendments Nos. 121 and 122.
Amendment No. 229, in
clause 67, page 33, line 6, leave out paragraph (b).
Paul Goggins: We come now to the famous, or infamous, clause 67, which covers the offence of sexual activity in a public lavatory. When the issue was debated in the other House, the Government were defeated and clause 67 was inserted into the Bill.
The Government had a choice. We could have returned here with an amendment that would have knocked the clause out of the Bill. We have chosen not to do that. The Government amendments in this group are designed to make clause 67 workable and to remove the option of trial on indictment and the maximum penalty of two years imprisonment attached to it.
Clause 67 has a long and complex history, and I do not intend to go through it this afternoon. However, I shall make one thing clear: the Government's policy on sexual activity in public lavatories is that we are against it, lest there be any doubt about that. Toilets are built for other purposes, and those who want to use them for those purposes should be free to do so without having to witness sexual behaviour that ought properly to take place in private. It is unacceptable, whoever is engaging in it and whatever their sexual orientation. That has always been, and remains, the Government's policy. Section 5 of the Public Order Act 1986 and the common law offence of outraging public decency are capable of covering this behaviour where it causes harassment, alarm, distress or offence. We listened to those who argued that it was important that the law sent out a specific message that sexual activity in public toilets is illegal.
Mr. Chris Bryant (Rhondda): In which case, why is it not illegal to have sex in the park immediately outside a public toilet? That does not make sense.
Paul Goggins: There is a long and complex history to this clause. The difficulty in going down the route that my hon. Friend tempts me with is that there may
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then be some doubt as to whether the Government think that sexual activity in a public lavatory is not okay. We do not think that it is okay. We have therefore decided to send out a clear signal. The Government already have a strategy that would deal with sexual activity in a public toilet, but through this clause we are adding a further offence and further powers, so that there is no doubt that sexual activity in a public lavatory is not acceptable.
The offence in the Public Order Act 1986, as well the common law offence of outraging public decency, will remain in force. As my hon. Friend the Member for Rhondda (Mr. Bryant) and other Committee members know, an amendment to the Criminal Justice Bill makes the latter offence triable either way. That amendment makes the offence more flexible and thus more usable in practice. I ask for your forbearance, Mr. Gale, and for the patience of Committee members as I try to put the jigsaw back together again by referring to the various Government amendments before us.
Amendment No. 118 removes the reference to ''public lavatory'' in subsection (1)(a) and inserts the full definition of public lavatory in that subsection. Amendment No. 121 deletes the definition in subsection (3) because it is clearer to have it in subsection (1)—the definition remains absolutely the same. Government amendment No. 119 substitutes the words in subsection (1)(b) that an offence is committed if a person engages in ''activity within subsection (2)'' for ''an activity''. Paragraph (c) specifies that it is a sexual activity. That paves the way to deleting subsection (2), which specifies the sexual acts covered by the clause.
Subsection (2) is the crux of why we consider the current clause 67 unworkable. It would be difficult to prove that any one of the specified sexual activities had actually taken place when the activity took place behind a close cubicle door.
Mr. Malins: Perhaps the hon. Gentleman agrees that, in addition, there is a number of other sexual activities not mentioned that might be equally abhorrent.
Paul Goggins: Indeed, the hon. Gentleman is right.
Government amendment No. 120 deletes subsection (2), which specifies the activities covered by the clause, and replaces it with a new definition of sexual activity. It is important to emphasise that that definition differs from the general definition under clause 79 because it excludes activity that a reasonable person would think was sexual only if they knew the purpose of the person engaging in it. It therefore captures only explicitly sexual activity, excluding any behaviour that is ambiguous in its nature and circumstances.
We believe that removing the reference to specified sexual acts will help considerably in making the clause more workable in practice, because it will make it possible to conclude that sexual activity is taking place from what can be heard, as well as from what can be seen, and from surrounding behaviour. Moreover, it will require proof that sexual activity of some kind is taking place but does not require a person to say which of a list of specified acts is involved.
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Government amendment No. 121 deletes the subsection that defines ''public lavatory'', as Government amendment No. 118 has made that unnecessary. Government amendment No. 122 would specify that the maximum fine on summary conviction was level 5 on the standard scale, rather than the statutory maximum fine. That is a matter of drafting to make the Bill consistent with other legislation and is not a significant change.
Government amendment No. 122 would remove the possibility of trial on indictment and the maximum prison sentence of two years that flows from it. Although we believe that sexual activity in public toilets is wrong, we are not persuaded that it merits being dealt with at the Crown court or that a maximum sentence of two years is proportionate to the behaviour involved.
Where the behaviour is such as to constitute outraging public decency, an unlimited prison sentence is available, subject to that not being disproportionate to the behaviour engaged in. We take the view that a maximum penalty of six months imprisonment and/or a fine is the appropriate maximum sentence.
I commend the amendments to the Committee as the sensible way forward, making the clause workable but also making it absolutely clear that we are against sexual activity in public toilets.
Stephen Hesford (Wirral, West): Can my hon. Friend the Under-Secretary describe any behaviour that would come under the term of outraging public decency, and so require a larger maximum penalty, which would not ordinarily be caught by the offence in the clause?
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