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Baroness Blatch: I agree with the Minister's comments. Heterosexual activity or homosexual activity that takes place in a public lavatory, that is not witnessed and that does not outrage public decency when the event takes place, is still an offensive activity. I link that with the point made by the noble Baroness, Lady Walmsley, who said that one way of eliminating the behaviour was to have such places well lit, to visit them frequently and to make sure that the public use them. However, whether they are well lit and clean, and whether the cleaners can go near them in view of the sort of people who use them, they are not used by the public because of the reputation surrounding them and because a meeting place is established around such public places. Must the people offend on the spot or are they deemed to be offending the public—outraging the public—simply by having sex in a public toilet, although the act was not witnessed, heard or overseen by anyone?

Lord Falconer of Thoroton: It is our view that that does not have to be witnessed on the particular instance so long as it is capable of being witnessed or seen; that includes being heard.

The noble Baroness seeks to address me from a sedentary position, which is not normally how she addresses me. On the offence of outraging public decency

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and in relation to public order offences, what is being referred to is the capability of being seen or the capability of causing offence. The noble Baroness shakes her head. Consider the situation in which no one else was there but acts of the sort that she described were filmed on CCTV. Could that found the basis of a charge under outrages against public decency or Section 5 of the Public Order Act? We say "Yes". That view is shared by Messrs Smith and Hogan, the authors of the leading textbook on criminal law. I hope that answers the question of the noble Baroness. She shakes her head. I have tried to do my best in relation to that.

Setting the Boundaries, as I indicated, proposed a new additional public order offence. It was intended to complement existing legislation, principally that in the Public Order Act 1986 and the common law offence of outraging public decency. However, Clause 74 was problematic because it required proof that one of the sexual acts specified in Clause 74(3) was involved, which meant—for the purposes of proof, subject to the CCTV point—that generally the specific activity would need to be observed. I do not criticise the amendment of the noble Baroness, Lady Noakes, but it incorporates all the subsection (3) acts, so it gives rise to precisely the same problem.

Moreover, following publication of the Bill, there was a perception that Clause 74 was intended to be the sole means of dealing with sexual activity in public and that its provisions, therefore, needed to cover comprehensively all such activity.

A number of amendments have been tabled by noble Lords to change the framing of the clause. These do not in our view solve the problem with Clause 74 because—and the noble Baroness has precisely put her finger on it—what about the closed cubicle door? That is exactly the problem with which everyone seeks to deal. It is difficult to know from hearing noises which act specified in Clause 74(3) is taking place. That is the problem with our draft and with all the amendments.

In the light of the confusion, we have decided that the best way forward is not to proceed with Clause 74 but rather to rely on the existing common law offence of outraging public decency which covers all lewd, obscene or disgusting behaviour that outrages public decency. It focuses, therefore, on the broad nature of the behaviour and on the impact it causes, rather than on technicalities. Currently, as has been pointed out, it is triable on indictment only. We take the view that cases under the Act should also be capable of being tried at the magistrates' court so that the law can be used more flexibly. As has already been said by noble Lords, we are tabling an amendment to the Criminal Justice Bill, to be discussed tomorrow in another place, to make it an either way offence.

In addition, Section 5 of the Public Order Act 1986 adds further protection in that it covers sexual activity within the sight or hearing of a person likely to be caused harassment, alarm or distress. Sexual activity in public is an offence against public decency rather than abusive behaviour specifically targeted at a particular victim or victims, as are the other new offences in the Sexual Offences Bill. That is why we

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have taken this offence out of the Sexual Offences Bill and included an amendment to outraging public decency instead in the Criminal Justice Bill to make the offence triable either way.

The maximum sentence on summary trial will be six months—the most that a magistrates' court can currently pass—although that will be raised to 12 months when the Criminal Justice Bill becomes law. That cannot be done in this Bill because outraging public decency covers more than sexual behaviour. We do not intend to propose any other amendments to the offence.

The common law is flexible, which enables it to adapt to changing circumstances and standards of behaviour. We are confident that outraging public decency and Section 5 of the Public Order Act between them are sufficiently flexible to cover unacceptable sexual behaviour in toilets and—I make this clear—including in cubicles behind closed doors.

I trust that the Committee will agree that the action we propose is the most effective and appropriate way to address the issue. We are agreed on what we wish to achieve in the context of the problem in relation to public toilets. I trust that noble Lords who have tabled these amendments will believe that we have the balance about right. For the reasons I have indicated, I support the Motion that the clause should not stand part of the Bill. I hope noble Lords will forgive me if I do not address in detail amendments that deal with the detail of Clause 74.

Baroness Noakes: I thank the noble and learned Lord for that response. I hope I will not disappoint him when I tell him that I was not entirely happy with what he said about the extent to which sexual activity in public lavatories would be caught by a combination of the existing common law offence and the Section 5 offence. I am not fully convinced that the behind closed cubicle doors offence is seen as falling within the ambit of those offences. Such cases are typically about being seen. Clause 74 also has an element of that problem, but I believe that it is capable of being overcome.

The noble Lord, Lord Alli, made a plea for the law to be neutral in its approach to sexuality, which we completely support. I wonder whether the noble Lord would be satisfied to rely on the existing offences, which have been applied with a bias towards being disapproving of homosexual activity as opposed to being neutral towards homosexual and heterosexual activity. There remains a case for clear and unambiguous expression of the law on what is or is not allowed to take place in public lavatories.

I will consider the matter again carefully but believe that we should return to it on Report. I welcome the removal of most of the rest of Clause 74, which was very unsatisfactory, but we have not put all the other issues to rest in today's useful debate. Meanwhile, I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendments Nos. 356 to 361 not moved.]

Clause 74 disagreed to.

Before Schedule 1:

Lord Falconer of Thoroton moved Amendment No. 362:

    Before Schedule 1, insert the following new schedule—

Sexual Offences Act 1956 (c. 69)

1 In section 36 of the Sexual Offences Act 1956 (permitting premises to be used for prostitution), at the end insert "(whether any prostitute involved is male or female)".
Street Offences Act 1959 (c. 57)

2 In section 1(1) of the Street Offences Act 1959 (loitering or soliciting for purposes of prostitution), after "prostitute" insert "(whether male or female)".
3 (1) Section 2 of that Act (application to court by woman cautioned for loitering or soliciting) is amended as follows.
(2) In the heading of the section, for "woman" substitute "person".
(3) In subsection (1)—
(a) for "woman" substitute "person",
(b) for "her" in each place substitute "his", and
(c) for "she" in each place substitute "he".
(4) In subsection (2)—
(a) for "woman" in the first place substitute "person",
(b) for "he" substitute "the chief officer", and
(c) for "woman" in the second place substitute "person cautioned".
(5) In subsection (3), for "woman" substitute "person cautioned".
Sexual Offences Act 1985 (c. 44)

4 (1) The Sexual Offences Act 1985 is amended as follows.
(2) For the heading "Soliciting of women by men" substitute "Soliciting for the purpose of prostitution".
(3) In section 1 (kerb-crawling)—
(a) for "man" substitute "person",
(b) for "a woman" substitute "another person",
(c) for "women" in each place substitute "persons", and
(d) for "the woman" substitute "the person".
(4) In section 2 (persistent soliciting of women for the purpose of prostitution)—
(a) for the heading of the section substitute "Persistent soliciting",
(b) for "man" substitute "person",
(c) for "a woman" substitute "another person", and
(d) for "women" substitute "persons".
(5) In section 4 (interpretation)—
(a) omit subsections (2) and (3),
(b) for "man" substitute "person",
(c) for "a woman" substitute "another person",
(d) for "her" in the first place substitute "that person", and
(e) for "her" in the second place substitute "that person's"."

On Question, amendment agreed to.

[Amendments Nos. 362A and 362B not moved.]

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Schedule 1 [Section Offences to which Section 75 applies]:

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