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Lord Bassam of Brighton: My Lords, I am beginning slightly to regret my attention being drawn to the Behring Sea Award Act 1894. I am grateful to the noble Baroness for giving me the opportunity to confirm the words that she read from the official's letter. We are happy to confirm that that is our understanding of the position on jurisdictions.

Jurisdiction over offences committed on foreign or British ships lying off the coast within British territorial waters is, as I am sure the noble Baroness knows much better than me, governed by the Territorial Waters Jurisdiction Act 1878. Therefore, the proposed amendments would allow the altering of the jurisdiction as set out in the Behring Sea Award Act and infringe on the jurisdiction covered by the Territorial Waters Jurisdiction Act 1878.

Perhaps the noble Baroness has been misled by the reproduction of Section 521 of the Behring Sea Award Act 1894. The current section is in keeping with much of the legislation passed at that time in that it is in one sentence. The provision has been reproduced to make it easier to read. The words used in paragraphs (a) and (b) of the government amendment replicate the words in Section 521 of the 1894 Act, the only alterations being to remove the local limitations of a court.

I assure the noble Baroness that the government amendment only removes the local limit of courts in which offences on ships can be tried. It would not be appropriate for us to amend that Act any further with this Bill. I hope that with that assurance, the noble Baroness will happily withdraw her amendment.

Baroness Anelay of St Johns: My Lords, I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendment No. 37 not moved.]

An amendment (privilege) made.

Baroness Scotland of Asthal: My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Baroness Scotland of Asthal.)

Lord Renton: My Lords, I pay tribute to the Minister of State. She has had an tremendous task, which she has performed with devoted care, and she has carefully listened to what has been said in all parts of the House. I also pay tribute to my noble friend Lady Anelay, who is not a lawyer, but who has shown great skill and understanding. We owe much to the noble Lord, Lord Goodhart, who has shown great initiative and played a valuable part. This is a historic Bill, which makes a major change in our legal system. It transfers the supervision of our magistrates' courts from the Home Secretary—I spent four and a half years in the Home Office with some responsibility for this matter—to the Lord Chancellor, and wisely so. I said on Report that there had been such enormous changes by the Government at that stage—there have been more at this stage—that we should be given a little more freedom at Third Reading than we generally have. However, I understand that there is anxiety to pass the Bill as soon as possible so that it may go to another place. I shall not therefore say any more.

Lord Goodhart: My Lords, I join the noble Lord, Lord Renton, in thanking the Minister. She handled the Bill with great skill, effectiveness and care. I am grateful that the Government listened on a number of issues. The Bill leaves this House a better Bill than when it arrived.

Baroness Anelay of St Johns: My Lords, I am going to risk the wrath of the usual channels because the noble and learned Lord, Lord Williams of Mostyn, asked us not to offer congratulations at this stage, but who could resist? I agree with the comments of my noble friend Lord Renton and the noble Lord, Lord Goodhart, about the approach of the noble Baroness, Lady Scotland, who was assisted by the noble Lord, Lord Bassam of Brighton. Substantial changes have been made to improve the Bill. When it goes to another place, it will still have a job to do. I look forward to reading the deliberations in another place.

Baroness Scotland of Asthal: My Lords, none of this could have been achieved without my noble friends on the Benches opposite, including the noble Lord, Lord Goodhart. It has been a great pleasure to work with such industry coming from all sides of the House. The Bill goes to another place in a better order. It speaks highly of this House that the work has been done with such good feeling and in comity.

On Question, Bill passed and sent to the Commons.

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Sexual Offences Bill [HL]

6.32 p.m.

The Minister of State, Home Office (Lord Falconer of Thoroton): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

House in Committee accordingly.

[THE DEPUTY CHAIRMAN OF COMMITTEES (Lord Murton of Lindisfarne) in the Chair.]

Clause 66 [Committing an offence with intent to commit a sexual offence]:

Lord Astor of Hever moved Amendment No. 332:


    Page 30, line 9, leave out "any offence" and insert "an offence of assault, kidnapping or false imprisonment"

The noble Lord said: Amendment No. 332 is a probing amendment, which seeks to clarify an important point in Clause 66. For cases such as abduction and assault, the clause is eminently sensible. It closes a loophole in the Bill to cover those sexual offences that were never actually committed but where it was obvious that they were intended and where the victim will clearly have suffered a very traumatic experience as a result of the preparatory offence.

Amendment No. 332, however, seeks to limit and define those preparatory offences that the clause is intended to target. We have suggested,


    "assault, kidnapping or false imprisonment",

but that is by no means set in stone and a healthy debate may flag up additional preparatory offences that it would be advisable to include. There is, for instance, a ready made list in Schedule 3 of offences that might incur a risk of sexual harm order. Why not adapt that to suit Clause 66 or create a new schedule of offences specifically for Clause 66? It seems absurd to say that any offence could be a preparatory offence as defined in Clause 66. The clause is clearly designed to target only the most serious offences and that should be made clear on the face of the Bill. I beg to move.

Baroness Blatch: I want to ask about the restrictive nature of Amendment No. 332. As I understand it, Clause 66 is designed to punish those who commit an offence in order to facilitate them in the commission of a sexual offence. A person may break into a person's house, he may steal their keys to do so, he may even break into their car and lie in wait in the back seat, or he may unlawfully detain them in a flat. He may assault them to subdue them. However, if he does not succeed in committing a sexual offence after any of those, he can still be charged under Clause 66, whereas under the amendment he would not be able to be charged.

Amendment No. 332 would allow Clause 66 to apply only where the prior offence, as I have just described, is,


    "assault, kidnapping or false imprisonment".

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That would remove protection from the person who finds, for example, a would-be sex attacker in their home. In any event, the amendment conflicts with subsection (3), which imposes a higher penalty where there is a kidnapping or enforced imprisonment.

Is my reading of the clause right, and is my reading of the amendment right? If so, the Government have got Clause 66 right.

Lord Falconer of Thoroton: I am grateful to the noble Lord, Lord Astor, for giving us an opportunity to describe the policy behind the offence in Clause 66 and that in Clause 67, which is entitled:


    "Trespass with intent to commit a sexual offence".

The policy behind both offences is that we want to ensure that those who show that they have a tendency to commit sexual offences are recognised as sex offenders and treated accordingly.

In the main, those seeking to perpetrate a sexual crime who are prevented from doing so by outside forces—such as the intervention of another individual or hearing the police arrive—are currently charged with any criminal act that is perpetrated only as a precursor to the intended sex offence. That is because, with the exception of a few "with intent" offences in the Sexual Offences Act 1956—an example is abduction with intent to have unlawful sexual intercourse—the law provides for a defendant to be regarded as a sex offender only if he is found guilty of an attempted sexual offence. The law on attempts requires that any action is more then merely preparatory to the offence. That means that in cases where the intended sex offence is thwarted at an early stage, the sexual motivation of the offender may not be reflected in any charges brought.

That misses the opportunity to identify and treat those who are inclined towards sexual offending and who might very well go on actually to commit sex offences in the future. We do not feel that that provides either maximum protection or justice for victims of would-be sex offenders. Early identification, punishment, assessment and treatment of actual and potential sex offenders is a key element in the protection of the public from sexual abuse and exploitation and is an important step in securing justice for victims. Therefore, in the interests of offenders and victims, our intention is to frame the criminal law in such a way that it ensures that sex offenders are identified and sentenced accordingly, are offered places on appropriate sex offender treatment programmes whilst in detention and are monitored after release.

The offence that we are introducing in Clause 66 will enable the law to deal effectively and appropriately with anyone who commits any crime with the intention of subsequently carrying out a sexual offence. The approach that we have taken is that the specific nature of the preliminary offence is irrelevant. The important factor is that the defendant is carrying out another crime in preparation for committing a sexual offence. The offence at Clause 66 applies whether the intended sexual offence is a substantive offence or an offence of aiding, abetting, counselling or procuring such an offence and it can be charged whether or not the sexual offence is committed. For example, the offence would apply where

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a person kidnaps someone in order to rape him or her but is caught by the police before he is able to carry out the intended rape. It would also apply where a person detains someone in their flat with the intention of raping or sexually assaulting him, or where someone physically assaults a victim in order to subdue him so that he can more easily carry out the offence of rape.

As the noble Baroness, Lady Blatch, said, Amendment No. 332, which I fully accept is a probing amendment, would have the effect of restricting the offence at Clause 66 so that it covers only those situations where the defendant commits an assault with intent, kidnaps with intent or falsely imprisons someone with intent to commit a sexual offence. I realise that, taken together with the offence of "trespass with intent" at Clause 67, this would provide offences that broadly reflect the recommendations in Setting the Boundaries.

I agree that these are particularly heinous crimes and that they should be incorporated within the scope of the new offence, but I do not believe that restricting the offence so that it covers only those particular offences does enough to achieve the policy objectives I have outlined.

The important fact that needs to be recognised in law, regardless of the nature of the preparatory offence committed by the defendant, is the intention to commit a sexual offence. In such cases it must be recognised that the substantive offence would have taken place had the attacker not been intercepted or prevented in some way from carrying out his intent. The trauma suffered by victims in cases where the attacker clearly intends to commit a sex offence is directly comparable to that suffered by victims of actual sex offences.

Having an offence that brings any other offence within its scope will enable us to treat as a sex offender someone who, for example, neglects a child by withholding food and drink or medical care with the intention of weakening his resistance so that he can sexually abuse the child, or who commits another lesser sexual offence—such as indecent exposure—in order to frighten a victim before raping or sexually assaulting him. We would also be able to catch the defendant who, for example, stalks his victim, waiting for an opportunity to attack.

We firmly believe that anyone who commits another offence as a precursor to an intended sexual offence should be recognised under the law as a sex offender. He should be sentenced as such—that picks up the point made by the noble Baroness, Lady Blatch—and he should, depending on the seriousness of the case, be liable for registration on the sex offenders register and eligible for treatment under a sex offender treatment programme.

To fail to recognise the sexual element of preparatory offences would not provide justice for victims and would miss the opportunity to ensure the proper treatment of the offender. So, in accepting that

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it was a probing amendment, I hope that the noble Lord will take the opportunity to read what I have said and reconsider his position before Report.


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