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Lord Thomas of Gresford: Notwithstanding the fact that the noble Baroness, Lady Blatch, does not support my Amendments Nos. 401 and 403, there is a great deal of force in what she says in the broader context. There is a great danger in refining and defining the various offences before the Committee in that all one is doing is adding extra things to prove, as the noble Baroness said, and as she and I agreed in relation to an amendment at the Committee's previous sitting.

Lord Northbourne: I am most grateful to the noble Lord for giving way. Several noble Lords, being lawyers—the noble Lord in particular—think of this issue in terms only of what the courts will do. The burden of my introductory speech and my amendments is about the people out there who have to make a decision long before the matter goes to court and, I hope, in such a mode that it will never go to court.

Lord Thomas of Gresford: Again, there is a great deal of force in what the noble Lord, Lord Northbourne, says. He is right that those who are working with children

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require some rules by which they order their conduct. I can appreciate the point that he makes. I suppose that lawyers tend to look at what has to be proved when a case is actually brought to court. I come back to something that I have said so often that I expect your Lordships are fed up with hearing it—we should trust juries and magistrates to come to commonsense decisions on the particular facts and circumstances of a case.

Perhaps I may answer the criticism of the noble and learned Lord, Lord Cameron of Lochbroom. "Right-minded" was a decision of the Judicial Committee of this House. I remind him, since he sought to draw a distinction with what happens north of the Border, that party to that decision were Lord Keith of Avonholm and Lord Fraser of Tullybelton. I think that they were speaking for Scotland as sometimes my noble friend Lord Carlile and I speak for Wales. We were speaking for Wales in this particular case because it was a Welsh case and it was the sort of unusual circumstance in which this issue is raised.

Most cases of indecent assault never have a discussion about whether what has taken place is indecent—it is obvious. Touching a particular part of the anatomy is almost, by itself, indecent. In the case of Court, the debate was about a young man, a shop assistant, who had said to a young girl of 12 who had come into the shop "Do you like being smacked?" and had put her over his knee and smacked her. The issue was whether that was an assault or an indecent assault. When asked by the police why he did it, he said "It was a bottom fetish, I suppose". Consequently, he was convicted of an indecent assault because there were indications of what was in his mind; what was behind his act. It is very unusual for such an issue to arise, because it is obvious that what has happened is indecent or sexual.

We do not need to define things too closely; we need to leave it to the common sense of the judges of the facts. Subject to what the Minister has to say, there is no great reason for differing from the views of the Judicial Committee, which spent three days on this matter as opposed to the 40 minutes that we have spent so far.

Lord Hylton: I had not intended to take part in the debate. However, my noble friend Lord Northbourne explained that most of his amendments are intended to be in some sense exploratory. Therefore, he should not be accused of trying to over-define things.

Will the Minister give particular consideration to Amendment No. 403AA? That gives a negative definition,


    "not in the best interests of the child".

The best interests of the child are well known and understood in almost all children's legislation.

Lord Falconer of Thoroton: It has been acknowledged that the definition of the word "sexual" is fundamental to many of the offences created by this part of the Bill. We have thought hard and long about that definition, and I agree with what the noble and learned Lord, Lord Cameron of Lochbroom said. The

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definition does not apply to offences involving children alone; it applies to all—or very many—of the offences in Part 1.

As is clear from the debate, in coming up with the definition we have basically been guided by the case law on the definition of the word "indecent" in the context of an indecent assault. As the noble Lord, Lord Thomas, said, that comes from the case of Court. We are privileged in this House to have three of the participants in that case. Subject to one point, which is the use of the word "reasonable" rather than "right-minded", we follow the definition in that case. I make it absolutely clear that we regard there as being no significant difference between the words "reasonable" and "right-minded". I hope that I am able to defend the position.

We agree with the approach taken by the noble Lord, Lord Thomas, when he said that we should not over-define or create extra hurdles because that would make matters difficult, have unintended consequences and exclude matters that any reasonable person would want to include. Equally, we agree with him when he says that he is sympathetic to the comments of the noble Lord, Lord Northbourne, that entirely innocent touching should not become illegal. However, we believe that our approach achieves that. We follow the approach of the noble Lord, Lord Thomas, but we say that the right word for drafting is "reasonable", rather than any other.

I shall go through each amendment to show how our proposition works in practice. Amendment No. 400 would introduce a requirement for there to be an intention that the activity should result in the sexual arousal of either party. That would fall to the prosecution to prove. I am unsure from the way in which the amendment is drafted whether the noble Lord, Lord Northbourne, intends that the requirement should be met if either party has the intention of causing sexual arousal. In any event the term "either party" assumes that only two people are involved in the activity, which will not always be the case. Many offences cover situations in which a defendant perpetrates an act for the sexual gratification of someone else. For example, he forces the victim to engage in sexual activity with his friend. That approach both imposes a new hurdle and misses quite a lot of activity that we all agree should be covered.

The noble Lord, Lord Lucas, in Amendment No. 400A, introduces a requirement for there to be an intention that the activity should result in sexual gratification. Again, that would fall to the prosecution to prove. It is not clear which party is to be proved to have the intention and which is to be proved to have obtained or to have intended to obtain sexual gratification. That would have the effect that the activity could be considered sexual if any party involved in the activity intended that any other party involved in it should obtain sexual gratification, although the wording would need to be improved to make that clear. Again, that would exclude certain things that we would want to be included and impose another hurdle.

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Amendment No. 403C tabled by the noble Lord, Lord Northbourne, seeks to introduce a different definition of sexual touching, but this appears limited to an adult touching the sexual parts of a child's body or compelling a child to touch the sexual parts of his body, not to behaviour, including that towards other adults, which does not involve compulsion. Moreover, it would not cover some behaviour which I am sure most people would consider sexual; for example, an adult putting their tongue into a child's ear or mouth. Although I am sure that the noble Lord's intention is to produce a tighter definition of sexual than is in the Bill, it is again a good example of an amendment that does not include all of the behaviour that we would want to see covered. Maybe some of that could be dealt with by drafting, but again, for the reasons that I have indicated, I oppose that sort of amendment in principle.

Our definition requires the jury to use three criteria in its assessment of whether an activity was sexual—the nature of the act itself, the circumstances in which it took place and the purpose of the person in relation to the act. In some cases, the purpose of the defendant will be pivotal to the decision, as came out from the Court case, but in many other cases—for example, as the noble Lord, Lord Thomas has indicated, where one person masturbates the other—a reasonable person would be in no doubt, simply because of the nature of the act, or because of the nature of the act and the circumstances in which it took place, that the act was sexual.

The result of the amendments would be to require the prosecution to prove the purpose of the defendant or another party involved in the sexual activity in every single case. That would add significantly and unnecessarily to the evidential burden. More importantly, the result of Amendments Nos. 400 and 400A would be that they could omit some really serious sexual behaviour or at least give rise to endless arguments about it. For example, if someone penetrates a woman's vagina with a bottle without her consent the reasonable person would consider that to be a sexual act, taking into account the nature of the activity and the circumstances. The result of the amendments would be that the prosecution would have to prove that the act was carried out for the purposes of sexual arousal or sexual gratification. I am quite sure that that is not what the noble Lord, Lord Northbourne intends. It might be very difficult to prove that the defendant intended to get sexual arousal or sexual gratification from such an act. For example, he might have carried out the act only with the intention of injuring or humiliating the woman, in which case the offence would not be made out.

Both the amendments would also have the inherent danger that once the reasonable person knows that A has a sexual purpose, he might consider any activity to be sexual, even if, without knowing A's sexual purpose he might never have considered the activity to be sexual. In line with the current law, we only want to cover acts which the reasonable person, without reference to A's purpose, would consider potentially sexual and where the reasonable person concludes that

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those acts were, indeed, sexual. The amendments would bring within the criminal law those rare situations where someone derives sexual gratification from an obscure fetish—for example, removing a person's shoes—that no reasonable person would consider to be even remotely sexual by nature. As no one else involved in the activity would have any idea about the person's sexual purpose and would not be harmed or affected by it in any way, there is no reason for the criminal law to interfere in those circumstances.

Amendment No. 402 that has been tabled by the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor would replace the term "may (at least) be sexual" in subsection (a) with "may be sexual", and Amendment No. 403A would replace "may (at least) be sexual" with "was sexual". I will deal with the words "at least", which the noble Baroness, Lady Blatch, has raised and the amendments raise. The words "at least" have an important purpose in Clause 80 because of the way in which the definition has been drawn together. Clause 80(a) sets out the first limb of the definition of sexual activity. As well as covering acts that may or may not be sexual depending on the circumstances—for example digital penetration of a woman's vagina by a GP in his surgery could be absolutely fundamental to his diagnosis or treatment—they could also be wholly irrelevant. It would depend on the reason for the consultation. Clause 80(a) is designed to cover acts that may or may not be sexual, it is also intended to cover acts that are always sexual, for example sexual intercourse.

The effect of deleting the words "at least" and retaining the word "may" would be that it might be thought that Clause 80(a) only covered acts that may be sexual and not acts that are always sexual. On the other hand, replacing "may (at least)" with "was sexual" would suggest that Clause 80(a) applies only where an act was always sexual and not where it may have been sexual and is proved to have been sexual in fact, either because of the circumstances or the purpose of any person in relation to the act. We have used those words because we think that they cover both "acts that may or may not be" and "those that always are". Examples such as the doctor going beyond what is medically necessary during a medical examination solely for his own sexual gratification is the sort of offending behaviour that we believe should rightly fall within the scope of our offences.

I turn to the various other amendments relating to the qualities that should be attributed to the "reasonable person" who is required to judge whether any alleged activity was "sexual". I shall deal first with the change from "a reasonable person" to a "right-minded person". "Right-minded" was the term used in the case to which noble Lords referred. I do not think there is any real difference between a right-minded person and a reasonable person, but the word "reasonable" is consistent with the rest of the Bill. I hope that the noble Lord will be reassured that we are following the approach he would like to follow. We are simply doing so in what we consider are more appropriate drafting terms.

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Amendments Nos. 400B, 400C and 401A would have the effect of retaining the concept of the "reasonable person" but would expand the definition so as to require the reasonable person also to be "objective and unprejudiced" and,


    "of the same gender, sexuality, age and ethnic, social and cultural background",

as the defendant. I find that requiring a person to be objective as well as requiring him to assume the personal attributes of the defendant is a contradiction and very difficult to apply in practice. In addition, I think that requiring him to assume this range of personal attributes of the defendant is going too far in that it requires the "reasonable person" to take account of almost every attribute of the defendant.

We had a similar discussion about the attributes of the reasonable man in relation to the non-consensual offences at the beginning of the Bill. Whereas I can see that the defendant's attributes may be relevant in determining whether he acted reasonably to ascertain consent, I cannot see that the defendant's attributes are really relevant in determining whether an activity is sexual. As far as I am aware, the defendant's attributes have not been raised as an issue in applying the "right-minded person" test in the current law. As I said, I do not think there is any difference between "right-minded" and "reasonable".

Amendment No. 403A amends the definition in paragraph (b) so that no account would be taken of the purpose that any person may have had in relation to the activity and thus restricts the definition so that an activity will only be considered sexual either because of its nature or because of its circumstances. That would rule out activity that may be sexual because of its nature and is established as sexual because of the purpose of one of the parties involved; for example, where a teacher unnecessarily asks a child to undress so that he can check for signs of infection but his true purpose is to obtain sexual gratification. It may be evident from the circumstances that what is going on is sexual, but if there is evidence of purpose—for example, the teacher has kept a diary of his activities—I see no reason why that critical evidence should be ruled out in determining whether the activity is sexual.

Amendment No. 403B would insert a new subsection into Clause 80, setting out the circumstances in which touching a child should be considered to be sexual and specifically requiring that any such touching must have caused harm, or to have been likely to have caused harm, to the child. That amendment is supported by the noble Lord, Lord Monson. It also requires that the assessment as to whether the touching was sexual or not should be made by an objective and reasonable person. I have already dealt with that point. As I said, I think that such provision would be much too limiting and would not allow the judge and jury to apply their good sense to the question.

I understand that Amendment No. 399A is a purely technical amendment to cross-reference what would be the new subsections (1) and (2). Amendment No. 403B would place an additional and unnecessary burden on the prosecution, because it is already quite

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clear from the range of child sex offences that we have introduced that any sexual activity with a child is, of its very nature, considered to be harmful.

Amendment No. 403AA—another amendment tabled by the noble Lord, Lord Northbourne, to which the noble Lord, Lord Hylton, asked me to have especial regard—would add another paragraph to the existing Clause 80. It would have the effect of excluding from the definition of "sexual" any touching of a child that is in "the best interests of that child". The noble Lord, Lord Hylton, says that there is no problem about that because that phrase is used commonly in the law and would be easy to define.

The amendment that relates only to sexual acts with children appears to me to sit rather oddly with the generic definition at Clause 80. I wonder whether the real intention was that it should form paragraph (c) of the noble Lord's proposed new subsection. Either way, I consider that the reference to "the best interests of the child" is too broad and could potentially enable someone to use this as an excuse to justify the sexual abuse and exploitation of children.

I sympathise with the concerns expressed on behalf of adults who care for children and who fear being falsely accused of child abuse as a result of innocent actions. These could be actions such as restraining a child for his own safety, cuddling a child in distress in order to provide comfort or reassurance or touching a child's body to administer first aid. However, we believe that the way in which the word "sexual" is drafted in the Bill already excludes such circumstances.

The noble Lord, Lord Northbourne, says his main point has not been dealt with—that is, it is not a question of whether it gets to court but of how people will read this Bill. It is how the courts react to this sort of provision that will determine what the prevailing mood is. We have done our best to try to reassure him but it has got to be done in such a way that the definition is effective.

In addition, government Amendments Nos. 66 and 98 create an exemption that is more carefully drawn—that is the one about the professional helping a child in specified circumstances. Those amendments strike the right balance by protecting those who genuinely act in a child's best interests when their purpose is protecting a child from sexually transmitted infection, protecting the physical safety of a child or preventing a child from becoming pregnant. A person who touches a child in such circumstances will not be liable to prosecution so long as he does not act to cause or encourage any sexual activity to take place.

In the light of what I have said, I hope noble Lords will feel reassured by the drafting of Clause 80 and will not press their amendments.


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