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Lord Falconer of Thoroton moved Amendments Nos. 100 and 101:

    Page 7, line 44, at end insert ", or

(b) that the other person was under 13."

On Question, amendments agreed to.

[Amendments Nos. 102 to 105 not moved.]

Lord Falconer of Thoroton moved Amendment No. 106:

    Page 8, line 8, leave out subsection (4).

On Question, amendment agreed to.

Baroness Noakes moved Amendment No. 107:

    Page 8, line 10, leave out paragraph (a).

The noble Baroness said: In moving Amendment No. 107 I shall speak also to Amendments Nos. 120, 129, 138 and 148.These all concern abuse of trust offences and are probing amendments related to the option of using summary procedure.

For all of those offences, the Government have included the option of a summary conviction carrying a six-month sentence or a fine instead of the five-year sentence available on indictment. We will be returning to that five-year sentence in the next group of amendments, but at the moment I shall focus on the circumstances appropriate for using summary conviction.

I have previously mentioned consistency within the Bill. I was looking to compare the abuse of trust provisions with the care worker provisions of Clauses 43 to 47. It seems to me that we are talking about the same kind of abuse of a relationship which is created in the abuse of trust provisions in relation to children, in relation to care worker offences and in relation to those who are mentally disordered.

For the care worker offences, there is no option of summary conviction. My question to the Minister is: why are these two groups of offences treated differently? Is it in some senses always regarded as a more heinous offence if it involves a care worker with a mentally disordered person compared with the abuse of trust in relation to a child? If the Minister believes that it is appropriate to have the summary route, will he indicate in which circumstances that would arise?

When we talked earlier about the options available for the "basic" sexual offences, we talked about a potentially wide range of activities within the clauses. When we are talking about the abuse of trust, we are talking about a particularly nasty aspect of sexual abuse. I find difficulty in seeing why that should have the option of the extremely lenient sentences available by way of summary conviction. I beg to move.

Lord Falconer of Thoroton: These are probing amendments tabled by the noble Baroness in relation to why we should have summary offences. I shall deal with them in turn. The abuse of trust sexual activity

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could plainly involve sexual intercourse between a 30 year-old nurse and a 17 year-old patient in his or her care in hospital and is plainly suitable for the Crown Court. It also covers the case of a nurse intentionally touching a patient's genital area in a sexual manner through his clothes entirely consensually. Is that suitable for the Crown Court? Sometimes it will be; in other cases it will not be.

The noble Baroness moves her head not in agreement but indicating that that is tricky and she is right in relation to that. Surely, the CPS should be able to have the option in relation to it.

Baroness Noakes: I am prompted to rise to indicate that I was not thinking that it was tricky but that it was not the kind of case that should be appearing in the courts at all.

Lord Falconer of Thoroton: A skilful answer. On that basis, I assume that she would not envisage the case appearing in the Crown Court.

Baroness Noakes: I agree.

Lord Falconer of Thoroton: The offence of abuse of position of trust causing a child to engage in sexual activity could cover the case where, for example, a Connexions adviser on one occasion caused a child to touch her own breasts in a sexual way, the child being at the high end of the age range. The abuse of trust inciting a child to engage in sexual activity could be, for example, a teacher asking two 17 year-old pupils to strip and they both refused or a teacher who shows 17 year-old pupils a sex video during a geography lesson. How serious are those? They could be charged in the Crown Court. Sometimes the case will not be serious enough to merit that and it is right that the CPS should have the option to bring it summarily.

The noble Baroness, Lady Noakes, says that the care worker offences are treated differently, but they are triable each way as well. That is my answer about a distinction being drawn; there was no distinction drawn, in effect. I hope that that helps and that the noble Baroness will be satisfied about the range of offending behaviour that justifies all these offences being triable each way.

Lord Hylton: Before the noble Baroness makes up her mind about the amendment, I wonder whether I can probe further on the abuse of positions of trust. It seems clear to me that all staff employed in residential institutions are well covered in this clause and the clauses immediately following. That would include part-time staff, caretakers, ancillary workers and such people. Is the Minister satisfied that workers of all kinds in non-residential establishments are covered and that social workers who come into contact with children as part of their professional duties are covered? Even people like social services inspectors who in the course of their duties have some contact with some children are covered. One could include

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teachers and other workers in non-residential educational establishments. Can the Minister throw some light on those situations?

Lord Falconer of Thoroton: Those are legitimate questions. We shall come to them in detail. Positions of trust are dealt with in Clauses 23 and 24. They are not restricted to residential situations. A position of trust can arise, for example, in educational settings and also in some kinds of care settings that we shall expand by way of amendment, where the person providing the care does not provide it in a domiciliary or residential setting. The question is well judged. Perhaps I may answer it when we come to Clauses 23 and 24, where the relevant provisions are to be found.

Baroness Noakes: I thank the Minister for his ever-more inventive examples of how the clauses will operate in practice, which I shall read carefully. I apologise for confusing him about the care worker offences. That actually relates to the next group of amendments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Noakes moved Amendment No. 108:

    Page 8, line 13, leave out "5" and insert "7"

The noble Baroness said: I now turn to the abuse of trust offences, the care worker offences and the sentences to be imposed. On conviction on indictment the sentence is five years for abuse of trust and seven years for the care worker offences. I want to tease out that comparison. I can see no real difference between the gravity of those two offences. Both involve the sexual exploitation of vulnerable people. I cannot see that the abuse of children under 18 by those in a position of trust is less heinous than abuse by a care worker of a mentally disordered person. In terms of long-term psychological trauma, I could make a case for the abuse of trust of a child being worthy of a stiffer penalty. The purpose of Amendment No. 108, together with Amendments Nos. 121, 130, 139 and 149, is to tease out the differences in approach between the two sections that mystified me. I beg to move.

Lord Falconer of Thoroton: As the noble Baroness said, these amendments have the effect of increasing the maximum penalty to seven years. In drafting the Bill we have been assisted by the noble Baroness in a number of respects and we have been at pains to ensure that the maximum penalties for similar degrees of offending behaviour are proportionate and consistent.

The primary purpose of the abuse of trust offences is to provide protection in criminal law for young people aged 16 and 17—that is, above the legal age of consent—who are considered to be particularly vulnerable to exploitation by those who hold a position of trust or authority in their lives. The offence is not designed to deal with other sexual offending behaviour—such as sexual intercourse with a child under the age of consent or a non-consensual activity that falls within the scope of other sex offences.

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Although we consider such relationships to be wrong because of the abuse of trust involved, the offence relates to sexual activity that is ostensibly consensual. We feel that a maximum five-year penalty is sufficiently severe for sexual activity that was mutually agreed between an adult age 18 or over and a young person who was over the age of consent. Although the offences extend protection to children under the age of 16, where a child in that age group is involved we would expect the Crown Prosecution Service to charge one of the child sex offences instead, which carry a higher maximum penalty.

While we want to send a clear message that sexual activity within relationships of trust is wrong, we do not think that the offence as I have described it merits a seven-year maximum penalty. The noble Baroness rightly drew attention to the more severe maximum penalties for breach-of-care offences, which are designed to protect persons with a mental disorder or learning disability. That particularly vulnerable group of people merit the extra protection offered by the deterrent of a higher maximum penalty.

The young people protected by the offence to which the noble Baroness draws attention are essentially aged 16 or 17. We do not feel that they fall within the same category of vulnerability as those in the care offences with a mental disorder or learning disability. A seven-year maximum penalty on that basis for the offence of abuse of trust is disproportionate.

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