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Lord Monson: Notwithstanding the obviously excellent intentions of the right reverend Prelate and my noble friend Lord Listowel, I think the Government have got it about right and that the amendments go too far.
First, there are many girls of 16 and 17 who look 19 or 20. If a 16-year old happens to be a professional prostitute it is even more likely that she will look older than she is. But Clause 54 does not cover only prostitution. As drafted, if a man says to a girl of 17, "Let me buy you a couple of drinks and then I expect something in return", or, "I will take you to a pop concert", or something of that kind, "in return for sex", he would be caught by it. Is it seriously suggested that such men should be sent to prison for 14 years? Incidentally, if he were to say to the girl, "Let me give you a ride in my powerful sports car", I think he would be safe because no money or notional financial transfer would have taken place. As I said, I think the Government have got it about right. This is a difficult issue: I should be interested to hear the Minister's response.
Baroness Blatch: Notwithstanding the difficulties envisaged by the noble Lord, Lord Monson, I rise to support the right reverend Prelate in these amendments. It seems to me that there is here a question of vulnerability and the old word "intimidation" comes into play again. Often we are talking of young people who do not have the security of support at home. Many young people who come out of care at the age of 16 and are left to the mercies of the streets are particularly vulnerable. We know that far too many end up in some form of prostitution, whether on their own account or inveigled into working for others and offering sex for money. For someone who does not have any, there is also the attraction of money. Therefore, this concerns a particularly vulnerable age group.
Picking up on some of the points made by the noble Lord, Lord Monson, and the examples given, this applies also to 15 year-olds. It is a particular problem in this country and I suspect in other developed countries that 14, 15 and 16 year-olds could be taken for any age. It is difficult to discern their precise age. However, that should not prevent us from considering the age at which young people should be protected from this kind of violation of their bodies.
The problems of this particular age group16 to 17 year-oldsis a theme I have supported throughout the Bill. The irony is not lost on me. The people who have supported the amendments, which I too support, are the very people who agreed to lower the age of consent to 16, by which all of these problems arise. In a number of different contexts in debates on the Bill we have concerned ourselves with the very young age group of
Lord Falconer of Thoroton: The protection given by the provisionsnot the amendments but the basic provisions which the right reverend Prelate's amendment seeks to protectis for 18 year-olds and under in relation to child prostitution and child pornography. The issue addressed by the amendment tabled by the right reverend Prelate and the noble Earl is whether distinctions should be drawn by reference to age in relation to the "mistaken and reasonable belief" defence and in relation to the sentence which should be passed depending on the age of the victim in the case. Life is the maximum sentence in the case of a victim aged 13 or under; 14 years if the victim is aged 13 to 16 and seven years if the victim is aged 16 to 18 years. Mistaken and reasonable belief is a defence if the victim is over 13 but not a defence if he or she is under 13. This is a difficult issue. One has to get the balance right. We believe we have got it right.
I shall deal with all the amendments in the original group because the noble Earl has dealt with all of them. However, I do not in any way want to prevent the right reverend Prelate coming back later on amendments by separating them.
The effect of Amendments Nos. 290A, 290B, 295A, 295B, 303A, 303B, 312A and 312B is to remove the defence of mistaken belief in age from the child exploitation cases at Clauses 54, 55, 57 and 59. The offences in this clause are designed to tackle the exploitation and abuse of children through prostitution and pornography.
However, in some circumstances a person might exploit a child in that way thinking that the child is an adult over 18. It is right that, where the court considers that belief reasonable, the person would not be guilty of this offence. For example, if a person were to pay for sex with a child he knew was in the same class at school as his 14 year-old sister, obviously the court would be very unlikely to consider it reasonable that the offender thought the child to be 18 or over. However, were he to meet a 17 year-old girl in a night-club, for example, which admitted only those over 18, he might genuinely and reasonably have believed her to be 18 or over. It would be wrong in that situation to have a strict liability offence. Having said that, the mistaken belief in age defence available here does not apply to cases where the child victim is under 13. In those situations the offences carry strict liability. Any age distinctions necessarily are arbitrary to some extent. However, we think we have the matter about right.
Behaviour that involves causing, inciting or controlling prostitution, even where the offender reasonably believes the child is 18 or over, might still constitute an offence under Clauses 56 or 58. That is how we deal with the mistaken belief issues.
As far as concerns the penalties, the purpose of Amendments Nos. 290A and 290B is to remove one of the penalty tiers for the offence of paying for sex with a child in Clause 54. As drafted, the offence carries a maximum penalty of life where a child of under 13 is involved and where penetration takes place; 14 years for all other behaviour with a child under 13 and any sexual activity with a child aged 13 to 15; and seven years for any sexual activity with a child aged 16 or 17.
In England and Wales the age of consent is 16. The noble Baroness, Lady Blatch, is right to refer to that as a factorand it must bethat one takes into account. Sex per se with a child over that age is not illegal; therefore, it is the nature of the exploitation involved with prostitution and pornography and not the sex per se that we seek to tackle in this situation. So a lower penalty than that applied where the child is below the age of consent is appropriate.
That is the basis upon which we have drawn the distinctions in age. They are carefully thought through. I am sure that not everyone will always agree with them. However, a difficult course must be taken on these age levels. We think we have got the situation about right.
The Lord Bishop of Portsmouth: I am grateful to the noble and learned Lord for his reply. I apologise for slightly misleading him earlier. In this debate my priority lies with Amendments Nos. 290A and 290B. They concern the age distinction. I do not regard the other amendments as a priority and should like to withdraw them.
I was always told that when one makes a nuisance of oneself one should be gracious. Therefore, I shall be gracious by not pressing all my other amendments, but I want to press Amendments Nos. 290A and 290B because I am unpersuaded by what has been said about the age aspect. I do not know whether I can actually make a nuisance and test the opinion of the Chamber, but I am minded so to do.
The Deputy Chairman of Committees (Lord Haskel): The Question is Whether Amendment No. 290A be agreed to. As many of that opinion will say, "Content". To the contrary, "Not-Content". I think the Not-Contents have it.
Resolved in the negative, and amendment disagreed to accordingly.