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Lord Goldsmith: Perhaps I may briefly add my voice to those who are concerned about the noble Baroness's amendment. I hope that she will not believe that the debate is simply lawyers taking a view about the merits of courts.

As the noble Lord, Lord Thomas of Gresford, said, the strong likelihood is that in the kind of case to which the noble Baroness referred--that of a person in a position of trust--the sentence is likely to be severe. However, it is unlikely that all cases fall into the same category. I believe that the noble Baroness accepts that in subsection (2), which leaves the court a discretion not to pass such a sentence.

I want to comment briefly on that point. The proposal is that the court has that discretion if it is of the opinion that there are specific circumstances which relate to the offence or offender which would make the prescribed custodial sentence unjust in all the circumstances. I am sure that the courts would operate that; indeed, they already do.

My concern is that setting a relatively low test to avoid the result of the mandatory sentence may bring the courts into disregard and disrespect in the minds of the public. The public will think that the offence ought to carry a sentence of life imprisonment and that Parliament has said so. Time and again the courts will not do so because the circumstances are at the other end of the scale from those to which the noble Baroness refers. That leads to the risk that the courts will not carry with the public the respect that they should have. That is an important feature of this proposal. I support the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Thomas, who have suggested that, with respect, the noble Baroness should not press her amendment.

5.30 p.m.

Lord Monson: My interpretation of the case put by the noble Baroness, Lady Blatch, was that she was concerned less with imposing long sentences in all cases than in having the ability to recall individuals to prison if they began to act in a suspicious way in

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relation to young people. Perhaps that interpretation is wrong, but I believe that that is what the noble Baroness is driving at.

Lord Bach: I am grateful to the noble Baroness for raising this important issue. She will not be surprised when I invite her to withdraw the amendment. The short debate on the matter raised by the noble Baroness, Lady Blatch, has been to the point and of considerable importance.

I remind the Committee that the maximum penalty for the offence of rape is already life imprisonment. Section 2 of the Crime (Sentences) Act 1997 provides an automatic life sentence for those convicted of a second rape irrespective of the age of the offender or victim. This reflects the Government's view that repeat offending in respect of serious violent and sexual offences must be dealt with severely by the courts and that, accordingly, a limit on the discretion of the courts is appropriate in that category of case. In view of those provisions the amendment is of relevance only to first time offenders.

The Government believe that judicial discretion is essential in sentencing first time offenders particularly in the case of sexual offences. That discretion may well arise in the case described by the noble Baroness where the judge uses his or her discretion to sentence a convicted defendant to life imprisonment. But to add to the number of offences for which mandatory sentences must be imposed is something that has always concerned Members of this House, whether lawyers or not. If possible we want to keep sentencing discretionary, not mandatory. Sometimes it must be mandatory but not, we believe, in this particular instance.

The amendment represents an unacceptably radical departure from the principles of effective sentencing policy. Automatic life sentences should be clearly exceptional and reserved for categories of case in which a limit on the discretion of the court is justified. We are not persuaded that that is so in this instance. All rapes are serious; nearly every such offence demands a severe prison sentence. Sex offences against children are of even graver concern. The Court of Appeal has issued comprehensive guidelines on sentencing in cases involving sexual offences. They make it crystal clear that the age of the victim is a relevant aggravating feature. As has been observed, this offence, which is always serious, covers a variety of different sets of circumstances; some terrible and others not terrible, although still very serious.

Reference has been made to subsection (2). We believe that in effect the provision for the exercise of discretion in specific circumstances, while understandable given the nature of the offending, will prove fatal to the intent of the amendment. We believe that the court, mindful of the fact that the offender is being sentenced for the first time, is likely to interpret "specific circumstances" more widely than in the case of repeat offenders, thereby severely reducing the impact and intended utility of the provision and thus demeaning the role of the court in society. A sentencing provision of this kind which proved to be effective in its

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purpose in only a proportion of cases to which it applied would not reflect good sentencing policy; in other words, a mandatory sentence, with which it would be comparatively easy to escape a life sentence, as it were, would not be a good sentence.

I refer the Committee to the report of the Sex Offences Review Setting the Boundaries. It is important that the structure of offences and penalties is looked at in the round to ensure effective and comprehensive protection. The review makes recommendations relating to rape. We do not believe that it would be appropriate to interfere with the current sentencing framework pending the outcome of that review which may result in recommendations affecting sentencing in rape cases. Where this Chamber has had to deal with possible new mandatory sentences for offences it has tended to move forward carefully and slowly. The Government do not believe that the case for this important change has been made out.

Lord Ackner: Before the Minister sits down, I note that he failed to refer to the Attorney-General. Is that because he has no confidence in the noble and learned Lord? That provides a simple answer not only to this case but to all mandatory life sentences. It is not limited to the single or repeat case but relates to all cases. Perhaps the Minister can help me.

Lord Bach: I have the highest regard for and confidence in the Attorney-General. I have to say that because he shall join me on the Front Bench in a fairly short period! The point that the noble and learned Lord raises in regard to this amendment is extremely well made. I apologise for not referring to it in my reply.

Lord Thomas of Gresford: Does the noble Lord also agree that there is a problem in obtaining convictions in rape cases? The public perception that there is a mandatory life sentence in less serious cases, to adopt the Minister's own expression, in the circumstances envisaged in this amendment may lead to juries acquitting. That is one of the problems that now arise in trials of rape cases.

Lord Bach: I believe that I used the expression "less terrible" rather than "less serious". However, the noble Lord makes a good point.

Baroness Blatch: I was right on only one small point: nobody behind me weighed in on the amendment. I believe that there is genuine understanding of my revulsion at these offences. I made a distinction between two high school students and someone who raped a child. I referred to paedophilic rape and concentrated on the lifelong supervision of someone who despoiled the life of a young child.

Some powerful points have been made and the matter has been dealt with very sensitively, as I always expect it to be in this Chamber. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Baroness Blatch moved Amendment No. 107:


    After Clause 36, insert the following new clause--

USE OF ELECTRONIC COMMUNICATIONS SYSTEMS TO COMMIT ACTS OF GROSS INDECENCY WITH CHILDREN

(" . After section 1 of the Indecency with Children Act 1960 (indecent conduct towards young child), there shall be inserted--
"Use of electronic communications systems to commit acts of gross indecency with children.
1A.--(1) In this section, except where otherwise stated, "child" means a person under the age of sixteen years.
(2) Any person who uses an electronic communications system, including (but not limited to) computers, computer networks, computer bulletin boards and newsgroups, computer chatrooms, the internet, and other analogous electronic means, for the purposes of--
(a) engaging in an act of gross indecency with a person he knows or has reason to believe is a child;
(b) engaging in a sexually explicit discussion with a person he knows or has reason to believe is a child; or
(c) soliciting a person he knows or has reason to believe is a child to engage in any act that would constitute an offence under section 1 or under section 2(a) or (b),
is guilty of an offence and shall be liable--
(i) on conviction on indictment, to imprisonment for a term not exceeding ten years, or to a fine, or to both; or
(ii) on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding level 5 on the standard scale, or to both.
(3) References in the Children and Young Persons Act 1933 to the offences mentioned in the first Schedule to that Act shall include offences under this section.
(4) Offences under this section shall be deemed to be offences against the person for the purpose of section 3 of the Visiting Forces Act 1952 (which restricts the trial by the United Kingdom courts of offenders connected with visiting forces).".").

The noble Baroness said: This amendment is supported by the police. The police argue that they are powerless to act until an offence has been committed. The amendment allows the police to intervene if they believe that, with the use of technology, an offence is being prepared for. Early intervention could save much distress, particularly to children. Currently, there are no suitable laws to govern the use of computers in this way. It is now common knowledge that more and more paedophiles use the Internet to pursue and procure young children for sex. Earlier the noble Earl, Lord Listowel, spoke of the voracious way in which paedophiles network and use technology for that purpose. This amendment provides the police with another shot in their armoury to track down these heinous crimes. I beg to move.


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