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Earl Russell: I support the points made by the noble Lord, Lord Northbourne. Everyone concerned sympathises with the Government's amendment. We want to be certain that it is not going to catch people it is not meant to catch. The noble Lord says that he cannot find any definition in legislation. Perhaps there is a definition in case law which would be adequate. If so, I hope the Minister can tell us about it. If there is no definition in either, should we put one in to make sure we do not do what we do not intend to do?

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5.15 p.m.

Baroness Blatch: Perhaps I can admit to another failure in my life. Throughout almost the whole of my time at the Home Office I tried hard to obtain a definition of indecency and failed miserably. The Home Office was very resistant to providing a definition.

A picture that is corrupting and depraving is a picture that is not acceptable. If one thinks of the beautiful pictures of John Lennon and Yoko Ono with their child, in some of which all three were naked, none of them were indecent photographs as such. It is where the photograph itself is corrupting and depraving and where the activity that is being photographed is an offence to the child. It must be possible, with the kind of brains that we can muster to bear on this, to produce a definition of pornography. It is one of those cases where we all know what we mean by it, but in relation to the law it is important to obtain a form of words to reflect what we think we all mean.

Lord Thomas of Gresford: I appeared in a leading case in court before the Judicial Committee of this House which was concerned with indecent assault; my noble friend Lord Carlile of Berriew was on the other side. That was a case in which a shopkeeper in Pwllheli had smacked the bottom of a 12 year-old girl. The question that arose was whether or not that was an indecent assault.

I suggest the Government look at that case. At the end of the day what is indecent is what is indecent in the eyes of the tribunal deciding the issue, whether it is magistrates or whether it is a jury. All the circumstances of the specific case have to be taken into account. By analogy, if one applies that principle to indecent photographs, it is simply a matter for the tribunal to decide whether or not they are indecent photographs. There is no other way in which one can approach this. One cannot put into words what a picture conveys. Accordingly, one must leave it to the good sense of the judiciary, juries and the magistracy.

Lord Laming: I support what has just been said and the noble Baroness, Lady Blatch, should not feel any sense of failure in respect of her past experience in relation to indecency. Although in the centre of it all it is possible to know what is offensive and what is against the interests of the child, at the margins--this is where indecent photographs and activities like smacking a child appear--there will always be an issue of judgment. As long as the law focuses upon the welfare and safety of the child, it seems to be in the right place. Judgments should be left to other people in individual cases. The law is now making it clear that the protection of children is at the centre of its thinking.

Lord Bach: I am grateful to all noble Lords who have taken part in this debate. I should remind noble Lords that the government amendment looks at existing offences under Acts of Parliament going back to 1978 and suggests to the Committee that we raise the maximum sentence for them.

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In relation to definitions, we shall have to look at the Act itself in order to obtain the best definition that we can. However, the noble Lord, Lord Thomas of Gresford, with his vast experience in this field, put his finger on it. It will be for the court in each instance--the jury if the matter is heard at Crown Court; the magistrates if it is summarily--to decide whether or not any set of facts amounts to the offence in the Act of Parliament. With the greatest respect to all noble Lords who have spoken on this matter, we are here dealing with what the maximum sentence should be for an offence that is proved. If the offence is not proved, no sentence will be served because there will be no conviction. I commend the amendment to the Committee.

On Question, amendment agreed to.

[Amendment No. 105 not moved.]

Baroness Blatch moved Amendment No. 106:


    After Clause 36, insert the following new clause--

CHILD RAPE: AUTOMATIC LIFE SENTENCE

(" .--(1) Where a person over the age of 18 years is convicted in England and Wales of an offence under section 1 of the Sexual Offences Act 1956 (rape), and where the victim was under the age of sixteen years at the time of the offence, the court shall impose a sentence of life imprisonment.
(2) The court may not impose the prescribed sentence specified in subsection (1) if it is of the opinion that there are specific circumstances which relate to the offence or the offender which would make the prescribed custodial sentence unjust in all the circumstances.").

The noble Baroness said: I know from the outset that the amendment will be controversial not only on the Government Benches but also on Liberal Democrat Benches and possibly on the Benches behind me. Many people--and I include myself--believe that the rape of a child is almost too awful to contemplate. The amendment is all about raping children and I know that the proposal will be controversial because it introduces a mandatory life sentence. However, it must be said that the Home Secretary, Mr Straw, has accepted the principle of mandatory sentences.

The importance of the amendment reflects the gross indecency and the seriousness of the crime of raping a child. I am sure that Members of the Committee will ask whether this sentence will work in the same way as a life sentence for murder works and whether the Home Secretary, a politician, will decide the tariff. I envisage that the courts will decide the tariff in this case.

Although life sentences are given, some offenders are released from prison after a relatively short time, depending on the seriousness of the offence. Nevertheless, if they are subject to a life sentence they are released on licence. That means that they will be supervised after release and should they display any behaviour which gives rise to concern that they may reoffend, they can be returned to prison.

A person who would rape a child is a dangerous criminal who deserves to be taken out of the community for a long time. Paedophiles who operate

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in that way are deceptive and manipulative. They are often respected in their communities. They are often the last people one would expect to see in court.

I remember being shocked when, visiting a bail hostel, I met someone who absolutely charmed me. He had travelled abroad a great deal and had pinned on the wall of his room moving letters from people who had appreciated his work abroad and photographs of children who were suffering from leprosy and with whom he had worked in the Third World. He had a record as a good school master, was very educated and had good books on his shelves. I asked why he was there. It was quite a touching story. I was told that I would not believe the horrific nature of his crimes. He had spent his sentence and had volunteered to go into the bail hostel on the ground that he could not then trust himself sufficiently to go out and live freely in the community. If I had not met someone who could tell me of his crimes, I would have believed him to be the kind of person with whom I could have trusted my children.

It is dreadful to think that a child has been raped by someone who was trusted. I believe that anyone who will deceive to that extent and act with such gross indecency should receive a severe sentence. The sentence can be determined by the court and I shall be happy to change my amendment to that effect at a later stage. However, I believe that such a person should be supervised throughout his life because we know that paedophiles are habitual, repeat offenders. I beg to move.

Lord Ackner: Perhaps I may say with deep and affectionate respect that the amendment is not necessary. If a court, as it may from time to time, undersentences the remedy exists by statute. It is the positive obligation of the Attorney-General in this class of case to bring proceedings before the Court of Appeal (Criminal Division). If I were the Attorney-General, I should feel deeply offended by the proposal because it presupposes that the Attorney-General is not doing his job. I see no reason why that assumption should be made.

If there is a case which justifies an appeal, the necessary application, supported by the appropriate material, can be provided to the Attorney-General, assuming that he is not moving on his own initiative. Therefore, there is every available remedy for dealing with the situation which the noble Baroness suggests. Subsection (2) of her new clause--and I commend her--provides a let-out to the court which considers that in all the circumstances not to impose imprisonment for life would be unjust.

However, having accepted that there should be that measure of discretion, I cannot see why on earth the noble Baroness is not content with the Attorney-General's powers to intervene. Accordingly, I suggest that the amendment is unnecessary.

Lord Thomas of Gresford: With deep respect to the noble Baroness, I cannot support her amendment. There are infinite varieties of the offence of rape but it is difficult to get that understood. It is not the case that

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every person over the age of 18 who has penetration with a girl under the age of 16 is a paedophile. The very wording of the new clause reveals that the noble Baroness is aiming at the wrong target. Rape is of infinite circumstances.

In a serious case of rape, there is a presumption that a person will receive a life sentence. That is very much on the cards and it is just for that to happen. Under subsection (2) of the new clause, the discretion to impose a sentence less than life imprisonment is left open to the judge. Therefore, if the amendment were accepted, he would be in precisely the same position as he is today. Accordingly, the amendment can have no effect.

One sympathises with the intentions of the noble Baroness who wants to underline the disgust that people rightly feel for paedophile rape, but the definition set out goes much further.


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