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Lord Falconer of Thoroton moved Amendment No. 363:


The noble and learned Lord said: Amendments Nos. 363 and 364 improve the accuracy of the wording in relation to two offences in Schedule 1—committing an offence with intent to commit a sexual offence and trespass with intent to commit a sexual offence.

The age of the intended victim of the sexual offence, not the offence or trespass committed, is relevant for the purposes of Section 75. The amendment seeks to improve the clarity of the paragraph. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 364:


    Page 67, line 11, at end insert—


"(ba) an offence under section 66 or 67 where the intended offence was an offence against a person under 16;"

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 365:


    Page 67, line 25, at end insert—


"( ) section 53 or 54 of that Act (abduction of woman),"

The noble Lord said: Amendments Nos. 365 to 374 update the Northern Ireland offences in Schedule 1, which provides a full list of those offences that can be tried in Northern Ireland—even if they are committed outside the United Kingdom. The amendments ensure that all appropriate offences are included. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendments Nos. 366 to 374:


    Page 67, line 29, at end insert—


"( ) section 2 of the Criminal Law Amendment Act 1885 (c. 69) (procuration of girl under 21),
( ) section 3 of that Act (procuring defilement of woman using threats, etc.),"
Page 67, line 30, leave out "the Criminal Law Amendment Act 1885" and insert "that Act"


    Page 67, line 31, leave out "or"


    Page 67, line 33, at end insert "or


( ) section 7 of that Act (abduction of girl under 18);
( ) an offence under—
(i) section 1 of the Punishment of Incest Act 1908 (c. 45) (incest by males), or

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(ii) section 2 of that Act (incest by females);"
Page 67, line 34, after "under" insert "—


(i) section 21 of the Children and Young Persons Act (Northern Ireland) 1968 (c. 34 (N.I.)) (causing or encouraging seduction, etc. of girl under 17), or
(ii) "
Page 67, line 34, leave out "the Children and Young Persons Act (Northern Ireland) 1968" and insert "that Act"


    Page 67, line 37, after "children);" insert—


"(ea) an offence under Article 9 of the Criminal Justice (Northern Ireland) Order 1980 (S.I. 1980/704 (N.I. 6)) (inciting girl under 16 to have incestuous sexual intercourse);
(eb) an offence under Article 15 of the Criminal Justice (Evidence, Etc.) (Northern Ireland) Order 1988 (S.I. 1988/1847 (N.I. 17)) (indecent photographs of children);"
Page 68, line 1, leave out sub-paragraph (i) and insert—


"( ) section 17 of this Act (meeting a child following sexual grooming etc.), or"
Page 68, line 5, leave out sub-paragraph (2) and insert—


"( ) Sub-paragraph (1), apart from paragraphs (e) and (eb), does not apply where the victim of the offence was 17 or over at the time of the offence."

On Question, amendments agreed to.

Schedule 1, as amended, agreed to.

Lord Falconer of Thoroton moved Amendment No. 375:


    Before Clause 76, insert the following new clause—


"EXCEPTIONS TO AIDING, ABETTING AND COUNSELLING
(1) A person is not guilty of aiding, abetting or counselling the commission against a child of an offence to which this section applies if he acts for the purpose of—
(a) protecting the child from sexually transmitted infection,
(b) protecting the physical safety of the child, or
(c) preventing the child from becoming pregnant,
and not for the purpose of causing or encouraging either the activity constituting the offence or the child's participation in it.
(2) This section applies to—
(a) an offence under any of sections 2, 4 and 6 (offences against children under 13);
(b) an offence under section 9 (sexual activity with a child);
(c) an offence under section 14 which would be an offence under section 9 if the offender were aged 18;
(d) an offence under any of sections 18, 28, 33, 38 and 43 (sexual activity) against a person under 16.
(3) This section does not affect any other enactment or any rule of law restricting the circumstances in which a person is guilty of aiding, abetting or counselling an offence under this Part."

On Question, amendment agreed to.

Clause 76 [Offences against children under 13]:

Baroness Walmsley moved Amendment No. 376:


    Page 35, line 6, at end insert—


"( ) Where a person charged with an offence under section 4, 6, or 8 of this Act is, at the time of the alleged commission of the offence, under the age of 16 no prosecution is to be brought without the prior consent of the Attorney General."

19 May 2003 : Column 591

The noble Baroness said: Amendment No. 376 is part of my campaign to have children treated differently from adults in the Bill. Under the amendment, anyone committing a so-called offence against a child who is himself under 16 at the time would not be prosecuted without the permission of the Attorney-General. The Law Commission report of 1998 on consent to prosecution contained recommendations for rationalisation in this area. It recommended, among other things, that the need for consent be retained if prosecution for the offence would violate the defendant's rights under the European Convention on Human Rights.

It is arguable that an offence that criminalises both parties in a snog on the back seat of a school bus or the male in the case of sexual intercourse when both parties are so young might be considered disproportionate and therefore violate the human rights of the people concerned. Therefore I hope that the Minister will agree with the amendment. I beg to move.

Lord Falconer of Thoroton: This amendment returns to an earlier debate. I am aware that concerns have been expressed about the prosecution of children who engage in apparently consensual activity. For example, a girl aged 13 could face a strict liability charge for mutually agreed sexual activity with her friend aged 12. We have had detailed discussions on the subject, during which I have made it clear, as I do again, that our purpose is to protect children from sexual abuse and exploitation. That is why it is important for the law to make provision for children to face charges relating to ostensibly consensual sexual activity where there is evidence to suggest that it is exploitative or coercive.

It is not our intention to punish children unnecessarily. We would not expect the Crown Prosecution Service to bring charges against a child unless it were in the public interest. The code for Crown prosecutors and other CPS documents contain detailed guidance about the circumstances in which a prosecution would be in the public interest. The new legislation does not create any new issues with regard to the prosecution of children. It follows that existing guidance as to prosecution will be appropriate for the new offences created by the legislation.

It has not been suggested that the CPS does not exercise its discretion wisely in relation to the prosecution of children. On the basis of what we know I am satisfied that the CPS will continue to exercise that discretion in a fully competent manner following the Bill's introduction. I am also reassured by the fact that once the Sexual Offences Bill has been given Royal Assent, careful consideration will be given to the question of whether the guidance should be updated, not only in relation to the prosecution of children, but in relation to the prosecution of all offenders.

The right course is to rely on the CPS's discretion. There is not much difference between us in what we wish to achieve. We would not be justified in adding to the Attorney- General's workload by requiring his

19 May 2003 : Column 592

personal intervention in every case involving a defendant aged under 16 at the time of the alleged offence. The statutory obligation that the noble Baroness proposes, for understandable reasons, is not necessary. I hope that in the light of what I have said she will feel reassured.

Baroness Blatch: Before the noble Baroness, Lady Walmsley, returns to this issue, may I refer to a case that has arisen since we last met as a Committee? A 15 year-old lesbian girl has left home to live with a lesbian lover older than herself in some squalor—from what we can all gather and know about the case—and against her parents' wishes. Where does that leave the parents in terms of their rights as parents, given that the law would deem them to be responsible for their children? Social services have said that they have no intention of doing anything about the case; they do not intend to intervene. They are entirely happy and have condoned the relationship between the two people, yet the girl is only 15.

What is the position of that girl under the present law, and what would be her position under the Bill once enacted?


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