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Lady Saltoun of Abernethy: I entirely agree with the noble Lord who has just spoken. There are many problems in that area, which should not be lost sight of. One is that girls aged 12 to 16 or even under not only can be the most appalling of flirts, but are also nowadays very often dressed up in such a manner as to lead people to suppose that they are a great deal older. Those problems need to be kept in mind.

Lord Falconer of Thoroton: I say to the noble Lord, Lord Carlisle, "sexual" is defined in Clause 18 and "touching" is defined in Clause 81. It covers a huge range of sexual touching, and one can identify minor cases where one would not remotely think that it would be appropriate to bring proceedings. That is particularly the case where the ages of the children involved are close and the activity is patently consensual. But without being too graphic, the definition in Clauses 80 and 81 also embraces extremely abusive behaviour of children who might be 15 and whose victims might be seven, eight, nine, 10, 11 or 12. Just as in the other examples that have been given, one needs to be clear about what the criminal offence is so that it exists and can be used in the appropriate case. As was said by the noble Baroness, Lady Blatch, one does not want the child to have to go through the process of proving that he or she did not

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consent. One would then hugely undermine the effectiveness of the crime and hugely reduce the willingness of people to complain.

The position under the current law is that indecent assault is the same. Any physical contact can form the basis of an indecent assault charge, but the good sense of the Crown Prosecution Service ensures that an absurd charge is not brought.

4 p.m.

Lord Mayhew of Twysden: Does not the noble and learned Lord recognise that there is a slight danger in placing the reliance that he does on good sense—not that I doubt that the Crown Prosecution Service is entirely sensible? What about the danger of a private prosecution brought by a person less well-endowed with good sense? Plenty of people take an extreme view of these matters, and how does one deal with that and the immense stress and distress that that can occasion?

Lord Falconer of Thoroton: In practical terms, I do not believe that that causes much of a problem. In balancing the risk of a private prosecution against having clarity in the law so that it can be used in the kind of case I have described, the balance falls on the side of having it there because the other side of the coin is not giving rise to problems in practice.

Lord Northbourne: The noble and learned Lord put a stress on clarity in the law. Clarity is precisely what there is not in the definition of "sexual" touching. We shall come to that under Clause 80 and the Minister may wish to leave the matter until then, but I wanted to make the point now.

Lord Falconer of Thoroton: There is clarity in relation to the ages and in relation to those who cannot give consent. There is no sensible way of seeking to embrace in a legal definition every single sort of sexual behaviour and every single sort of sexual assault. Even the noble Lord, Lord Northbourne, has not attempted any amendment to try to define sexual touching—

Lord Northbourne: On the contrary, I have.

Lord Falconer of Thoroton: I was hoping that the noble Lord would not mention that. It seems to me that a great difficulty is exposed in this area.

Lord Thomas of Gresford: If it assists the noble Lord, the current definition of "indecent assault" comes from the case of Court in which I appeared for the appellant, my noble friend Lord Carlile of Berriew appeared for the respondent and the noble and learned Lord, Lord Ackner, gave the leading judgment—so it is all in-House. In that case, the issue was the smacking of the bottom of a 12 year-old girl. Was that an indecent assault? When arrested, the defendant, when asked why he had done it, said, "I don't know. Bottom fetish, I suppose". And the issue was whether that coloured what was otherwise a simple assault and made it an indecent assault.

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The arguments of both myself and my noble friend Lord Carlile were rejected in the judgment of the noble and learned Lord, Lord Ackner. I recall a discussion taking place about the mental element, when Lord Fraser of Tullybelton inquired whether, if six undergraduates from Balliol debagged an undergraduate from New College—

Lord Mayhew of Twysden: No, from Trinity!

Lord Thomas of Gresford: All right, from Trinity. I am not too familiar with that place. The question was whether if they did that it was an indecent assault. He decided that it depended upon whether some of them gained sexual satisfaction from the debagging, which would turn it into an indecent assault.

The point I am making is that, as always, it is extremely difficult to try to define all the circumstances which will arise in a criminal case in a statute. One cannot ever define everything exactly: it must be left to common sense.

Lord Campbell of Alloway: The point I would make is short. My noble and learned friend Lord Mayhew of Twysden took a valid point, which was not wholly answered. But ought there not to be some safeguard against a private prosecution? Ought not that safeguard to be other than with the consent of the Attorney-General?

Baroness Blatch: I hope that the noble Baroness, Lady Walmsley, will forgive me for spotting an irony here. We are talking about not having a criminal offence in terms of touching and, as the noble Lord, Lord Thomas of Gresford, mentioned, smacking a little girl's bottom. However, in another context, the very same noble Baroness is advocating that smacking a little girl's bottom should be an offence.

Lord Falconer of Thoroton: The noble Baroness, Lady Walmsley, can reply to that irony. I do not know what the noble and learned Lord, Lord Mayhew of Twysden, might think, but in my view the idea that the Attorney-General should spend his time reading papers to see whether someone should be privately prosecuted is a complete waste of the Attorney-General's precious time. I can see the point that the noble and learned Lord makes, but we trust to people's good sense. That is not causing a problem at the moment, so let us not solve something that is not causing a problem.

Baroness Walmsley: I thank all Members of the Committee who have contributed to this short debate, in particular the common sense of the noble Lord, Lord Carlisle, about sexual assault.

I want to draw the attention of the Committee to the fact that these amendments are about under-16s and would not affect 17½ year-olds. It is intended to bring the under-16s out of Clauses 2, 4, 6 and 8, in particular

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in situations where there was consent. I believe that cases in which there was not consent would be dealt with in other parts of the Bill.

I welcome the reassurances that the Minister has been able to give me. In particular, I welcome the inter-departmental working group on the issue of children who exhibited harmful sexual behaviour. But I fear that the agencies and organisations which have supported the amendments would have much more confidence in the status quo if it were consistent. We need a consistent framework of assessment before a young person was even charged with any kind of sexual offence; and a consistent arrangement of pre-sentencing reports and assessments available to the courts when they have been charged and convicted; and consistency in the availability of high-quality professional services across the country. We do not have any of those things, which is why I felt obliged to table some amendments, which I am afraid the Public Bill Office would not accept, about issues such as pre-sentence reports and pre-charging assessments. I was told that the Bill had been so tightly drawn that they were not within its bounds.

The Minister spoke about the CPS and its discretion and good sense. However, in order to satisfy those of us who are concerned about these young people, will he provide written guidelines to the CPS that they can use, and not rely only on its common sense and discretion? That would give a great deal more comfort to those of us who are concerned about these damaged young people, whom I shall speak more about when we come to our debate on Clause 14 stand part. In the meantime, I beg leave to withdraw the amendment. No doubt we shall return to it later.

Amendment, by leave, withdrawn.

[Amendment No. 10 not moved.]

Clause 2 agreed to.

Lord Campbell of Alloway moved Amendment No. 11:


    Before Clause 3, insert the following new clause—


"ASSAULT BY ORAL PENETRATION
Subject to the provisions of section 1(2), intentional penetration of the mouth of a person by a penis without such person's consent is an offence to be tried on indictment for which the maximum sentence is 10 years' imprisonment."

The noble Lord said: I spoke to this amendment yesterday. The noble and learned Lord, Lord Lloyd of Berwick, took the view that the better way to deal with this offence was to amend Clause 3. Having read Hansard this morning it seems to me, subject to the view of the House, that he was right. It would be simple to include the amendment on oral penetration in the first line of Clause 3. That would have the effect of differentiating—the point made by the noble Baroness, Lady Mallalieu—between the two offences. That would mean that Amendment No. 1 could be carried on the basis that oral penetration is not sex.

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If this offence were included in Clause 3 it would be a specific offence that would carry a maximum sentence of life imprisonment. Having listened with great attention to what the noble and learned Lord, Lord Falconer of Thoroton, said—I did not know about the police information and other information about the gravity of the offence—I was beginning to think that a life sentence could be appropriate, whereas originally I would have thought that 10 years was appropriate. So in those circumstances it would not have been my intention to move the amendment on Report. On that basis, I ask leave to withdraw it.


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