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Lord Rix: Since the noble Lord, Lord Astor of Hever, has already spoken to Amendment No. 220, which seeks a different approach with a similar result, I shall keep my comments on Amendment No. 221 brief.

I should say at the outset that I am not saying that sex between two adults, neither of whom knows what he is doing, is a good thing. I am saying simply that it is not a matter for criminal prosecution. Since there may be an inequality of strength or personality between the two parties, it may be entirely appropriate to stop the relationship if either or both parties is suffering rather than benefiting. That is to be sorted out there and then, in the light of all the facts and as sensitively as possible. It is not something to be sorted out over months and by involving the police and the courts.

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My proposed new clause is quite tightly defined. It says nothing about consensual sex between parties having capacity and choice, or abuse by one party who knows what he or she is doing of another who does not know what he or she is doing. It says nothing about the unlikely but not impossible situation of a large and forceful A, who does not understand the nature and impact of sexual activity, perpetrating sexual violence on a small and inoffensive B, who knows all too well what is going on but is powerless to stop it.

I have concentrated on the most likely scenario and have sought to address it through direct provision in the Bill, although the Minister may prefer the guidance approach advocated by the noble Lord, Lord Astor of Hever. If so, I shall listen carefully to his comments, although I have an unrepentant preference for direct provision over assurances about future guidance.

Lord Campbell of Alloway: I support the amendment because the scale of mental disorder is all but infinite, and its effects are not so precisely known and are of various gravity. In a new look at the law—which this is in more senses than one—it is right that the Attorney-General should authorise a prosecution, having the advantage of totally objective advice as to the mental state of the person who is to be tried.

4 p.m.

Baroness Blatch: I sound a note of caution on both Amendment No. 220 and Amendment No. 221. I wonder whether my noble friend Lord Astor of Hever is prepared to rely on the normal processes and the good sense and sensitivity of those who deal with these cases. If discretion is limited, it seems possible that the protection which the Bill offers might be undermined. It seems that there is a defence in the Bill whereby a person with severely limited understanding could not be convicted of an offence if they do not have the capacity. I hope that the noble and learned Lord can confirm that. I think that there is a defence.

As my noble friend said, mental disorder or learning disability covers a huge spectrum of disability in terms of seriousness. If a person is at the less serious end of the spectrum, then the law will view them as more responsible for their actions than someone who has a serious mental disorder. It is a fact that some disabled people who commit sexual offences deserve to be prosecuted—there are occasions when that is the case. They may well take advantage of other disabled people or of children or of adults. That is why I really am worried that the blanket ban which I believe these amendments would introduce could result in such people escaping justice.

I think that we run the danger that any additional guidance issued under Amendment No. 220 could be inflexible. Although I make that prediction, it may well be precisely the guidance that we would all want to see. However, the consequence of Amendment No. 221 is that a person could not be convicted of any sexual offence under Part 1 if both victim and perpetrator lacked sufficient understanding of the nature of the activity. That means that where the victim is learning disabled, the perpetrator can get away with committing

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a sexual offence against him if his lawyers can show a lack of understanding about sexual activity. That would mean that disabled people are again less protected.

What is surprising about the amendment is that the exception is to the whole of Part 1. That could have severe unintended consequences if relied on as a defence by the perpetrator of, say, a child sex offence under Clause 9. It may be that defence lawyers will argue that neither party understood the nature of the activity—the perpetrator because of his disability and the child because of his age. As I said, the Bill as drafted contains a defence. A person who has severely limited understanding would not in any event be convicted of an offence as they would not have a mental capacity to have committed it in the first place.

Lord Falconer of Thoroton: I fully understand the considerations behind both amendments and I hope to give reassurance. It is perfectly plain that we all agree that the criminal law has absolutely no part to play in a significant number of the types of relationship to which the noble Lord, Lord Rix, referred. I should hope that it would not play a part in the vast majority of such cases. Usually, the prosecution of someone who lacks the capacity to understand the nature of his own actions due to a mental disorder or learning disability would be totally wrong and not possible as a matter of law because he could not understand that what he was doing was wrong. That would prevent a prosecution.

Moreover, Clauses 33 to 37 require that,

    "A knows or could reasonably be expected to know that B has a mental disorder or learning disability and that because of it B is likely to be unable to refuse".

It would be very unlikely that someone with a serious mental disorder would meet that requirement, which has to be proved in order to make out an offence. Nevertheless it has to be said that the exact nature of an individual's position and its impact on their capacity to consent, whether they are the perpetrator or victim of an action, is not something that can be precisely determined outside the consideration of the circumstances of the individual case. The nature of an offender's mental status is a consideration whoever the victim may be. The Crown Prosecution Service follows a code of practice in determining whether the evidential requirements are met and whether it is in the public interest to mount a prosecution.

Amendment No. 220 would place a statutory obligation on the Attorney-General to produce supplementary guidance specifically in relation to persons with a mental disorder or learning disability. The code for Crown prosecutors and other CPS documents contain detailed guidance about the circumstances in which prosecution will be in the public interest. These will be updated as a matter of standard practice following the passage of the Bill.

For persons with a mental disorder or learning disability, criminal responsibility is not something that comes with a specific diagnosis; rather, it depends on the nature and facts of the whole case. It needs to be taken into account. If the case ever got to the CPS—

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and in many cases it would not—it would need to consider whether the evidential requirements are complete and whether or not the public interest test had been satisfied.

I do not think that the new legislation creates new issues in that regard so far as concerns the prosecution. I appreciate the thinking behind the amendments. The Government are not interested in criminalising that which is not criminal. But because of the difficulty of providing for every circumstance, whether in legislation or guidance, one has to trust to the good sense of both the authorities and the CPS; otherwise one would get into a situation where something that was obviously wrong which might be very exceptional was not covered.

In the light of the assurances I have given, I hope that the noble Lord, Lord Astor, will feel able to withdraw his amendment; and that the noble Lord, Lord Rix, will not feel obliged to move his amendment.

Lord Astor of Hever: I am grateful to the Minister for his response. I agree with him and with the noble Lord, Lord Rix, that this is not an issue to be sorted out over a long period involving the police and the courts.

We applaud the thrust of the amendment in the name of the noble Lord, Lord Rix. However, we are concerned that someone who has a mental disorder or a learning disability and cannot therefore consent may have a condition which makes it unsuitable for him or her to have a sexual relationship. He or she may tend to use force or be unable to register unwillingness on the part of the recipient of their affections and to respond accordingly.

I am grateful for the support of my noble friend Lord Campbell of Alloway. My noble friend Lady Blatch asked whether it would be better to rely on the normal processes and pointed out that the guidance could be inflexible. We have received a great deal of briefing on the issue. Perhaps after discussion I may reflect on that. I agree with my noble friend that there are instances where someone with a mental disorder or learning disability deserves better treatment.

I shall read Hansard carefully. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 221 not moved.]

Clause 38 [Inducement, threat or deception to procure sexual activity with a person with a mental disorder or learning disability]:

Lord Falconer of Thoroton moved Amendment No. 222:

    Page 18, line 26, leave out subsection (2).

On Question, amendment agreed to.

Clause 38, as amended, agreed to.

Clause 39 [Causing a person with a mental disorder or learning disability to engage in sexual activity by inducement, threat or deception]:

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