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Lord Falconer of Thoroton moved Amendments Nos. 92 to 94:



    Page 7, line 28, leave out "(1)(c)(i)" and insert "(1)"


    Page 7, line 29, at end insert—


"(b) subsection (2)(b)(v) has effect with the substitution of "sub-paragraph (ia) if done in Northern Ireland" for "sub-paragraph (i) if done in England and Wales"."

On Question, amendments agreed to.

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Baroness Noakes moved Amendment No. 95:


    Page 7, line 31, leave out paragraph (a).

The noble Baroness said: In moving Amendment No. 95, I shall also speak to Amendment No. 96. It may in fact be easier if I start with Amendment No. 96, because I am pleased to see that the Minister's name also appears on the amendment, hence it is non-controversial.

We believed, and are glad that the Government believe as well, that five years was too short a maximum sentence for the offence of meeting a child following sexual grooming. Seven years is a more realistic sentence.

Amendment No. 96 again raises the issue of what circumstances could lead the CPS even to contemplate a summary offence under the sexual grooming provisions. We are talking about a person who has been convicted of grooming a child with a view to a sexual offence. I talked in an earlier group of amendments about the difficulties with Clause 17 but my problem there was with whether innocent people, foolish or otherwise, might become entangled in it. But if the Crown Prosecution Service is convinced that it can prove this crime, it is a very serious matter. I simply cannot see how the summary procedure could ever be relevant. Like being pregnant, I do not think one can be a little bit of a sexual groomer—one is either a dangerous sexual predator or one is not.

My concern about leaving the summary conviction route on the face of the Bill is that it may be used in borderline cases in the hope of getting a guilty plea. People on the borderline may well be the innocent fools I have been concerned about. I am concerned that the option, which should not be a real option for conviction for an offence of serious sexual grooming, is on the face of the Bill. I beg to move.

Lord Falconer of Thoroton: We are agreed as regards the change from five to seven years. I do not think there is a problem there. As regards the possibility of a summary charge in relation to grooming, the vast majority of cases will be so serious as to merit the Crown Court. Is there a case that might not be? Possibly that of a 19 year-old talking to a child of 15 years and 11 months. However, it is sensible to include the provision.

Baroness Noakes: I thank the Minister for that reply. I still maintain that sexual grooming is a very serious offence. If the CPS thinks it is worth bringing a prosecution, we are talking about a serious offence which should receive an appropriate sentence. I do not think that there are borderline cases. Earlier I made a joke about that. However, I am not sure that there is borderline sexual grooming. Either we want to prevent the people we are discussing harming young children or we do not. I believe that the provision is unlikely to be used as regards 19year-olds talking to 15 year-olds. If a prosecution were to be brought in such a case, it should occur because a serious offence has been committed.

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I shall not press the amendment tonight, as I am sure the Minister would expect. However, I should like to think about it further as I am not convinced that there is a less serious offence of sexual grooming. The offence of sexual grooming is a very serious offence and should be so treated. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Noakes moved Amendment No. 96:


    Page 7, line 34, leave out "5" and insert "7"

On Question, amendment agreed to.

Clause 17, as amended, agreed to.

Clause 18 [Abuse of position of trust: sexual activity with a child]:

Lord Thomas of Gresford moved Amendment No. 97:


    Page 7, line 43, after first "he" insert "reasonably"

The noble Lord said: We move to a section of Part 1 headed:


    "Abuse of position of trust".

Before we get too involved, I point out that Clauses 18 to 22 set out the offences; Clauses 23 and 24 deal with the interpretation of a position of trust; and Clauses 25 to 27 contain exceptions.

Before I come to the series of amendments which are common to the criminal charges in Clauses 19 to 22, I should point out to the noble and learned Lord that in the section where we were concerned with child sex offences, in Clauses 9, 10, 11, 13 and 17 and in government Amendments Nos. 48 and 50, the words that are used over and over again are,


    "reasonably believe that B is 16 or over".

Members of the Committee who were present during yesterday's debate will remember the great controversy that arose between the Government and these Benches about whether we should invent the reasonable person or whether it would be far simpler and more direct simply to include the words "reasonable belief"—words which appear in the part which the Committee has considered most of the day with almost all the lawyers silent. The lawyers have been banished for much of today, much to everyone's relief.

Lord Skelmersdale: Will not the noble Lord, Lord Thomas, admit that they banished themselves?

10 p.m.

Lord Thomas of Gresford: I certainly did not, but all the others seem to have done. I am now in a rather lonely position in considering with the noble and learned Lord technical amendments which do not really involve any point of principle. I should prefer to see some sensible mechanism to prove the various offences. Clauses 18 to 22 demonstrate the obsession of those who have drafted the Bill with moving the burden of proof around in all directions quite regardless of the problems that we discussed

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throughout yesterday of trying to direct a jury or to inform magistrates of how these burdens of proof should be regarded, what they mean and so on.

Let me, for example, take Clause 18(2) to demonstrate a quite simple problem. If the four points in subsection (1) are proved—the burden is on the prosecution to prove them beyond reasonable doubt—the persuasive burden passes to the defendant to prove,


    "that he believed that the other person was 18 or over".

If he can prove that,


    "he is not guilty of the offence unless it is proved that his belief was unreasonable".

Who has to prove that his belief was unreasonable? Clearly it is the prosecution.

The jury has to be told, "Look at Clause 18(1). The burden of proof is on the Crown to prove beyond reasonable doubt, so that you are sure. Then look at the defendant. He has to prove in a balance of probabilities that he is not guilty because he believed that the other person was 18. But once you have got to that position, you then have to consider whether the prosecution has proved, so that you are sure, that his belief was unreasonable." It is that leap required in the brain that is so difficult and open to criticism.

Everything gets even worse in subsection (3), which states:


    "Where in proceedings for an offence under this section it is proved that a position of trust existed because of circumstances within section 23(2), (3), (4) or (5)".

That places the burden on the prosecution to prove that those circumstances existed. The subsection continues,


    "and the defendant proves that he did not know of those circumstances".

That gives him the burden of proving on a balance of probabilities that he did not know. The subsection goes on to say that,


    "he is not guilty of the offence unless it is proved"—

the burden passes back to the prosecution to prove beyond reasonable doubt—


    "that he could reasonably have been expected to know of those circumstances, or . . . that a position of trust existed because of other circumstances".

The purpose of my amendment is not at all to change the essence of what the Government are driving at, but to try to make it understandable by those who have to come to a particular decision. What I propose in subsection (2) is that, before "believed" in line 43, we insert "reasonably", and that we simply leave out,


    "unless it is proved that his belief was unreasonable".

In such circumstances, once the essential facts in subsection (1) have been proved, the burden passes to the defendant to establish that he reasonably believed that the other person was 18.

The words "reasonably believe" have appeared all through Clauses 9 to 17, which Members of the Committee have considered in the absence of the lawyers. However, all of a sudden we come back to a

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clause that might have been drafted by someone completely different, in which we have all the problems about which we talked yesterday.

Similarly, my amendments to Clause 18(3) would exclude all the words from "unless it is proved" to the end, include "solely" before "because", and add after "know" the words,


    "and had no reason to believe".

In the end, that subsection would therefore read, very simply:


    "Where in proceedings for an offence under this section a position of trust existed solely because of circumstances within section 23(2), (3), (4), or (5)"—

that puts the burden of proof on the prosecution to establish that—


    "and the defendant proves that he did not know and had no reason to believe of those circumstances, he is not guilty of the offence".

That would be the case if the defendant were acting reasonably. The burden of proof certainly shifts, but it does so only once. Although the jury may have difficulty in fully comprehending the difference between the prosecution having to make them sure and the burden shifting to the defendant to say that the decision is made on the balance of probabilities, that is much simpler than shifting the burden back again to the prosecution.

As your Lordships will appreciate, I am simply trying to clear up the situation. If one amended the provisions as I have proposed, that would strengthen the Bill rather than weaken it. My formulation in no sense weakens the principle that the Government are seeking; it in fact strengthens it.

I have studied those two provisions specifically to illustrate the fact that the same or virtually the same principles arise in Clauses 18 to 22. The same points arise and the same amendments can be made so as to put into this part of the Bill the concept of reasonable belief that is in the previous part and for which we contend—we will come back to this—in relation to rape and all the other matters that we discussed yesterday. The amendments are sensible and would not do anything that the Government would not want. It will be interesting to see whether they will be resisted. I beg to move.


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