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Baroness Noakes: My Lords, I said that if we were to have them, they had to be wider.

Lord Falconer of Thoroton: My Lords, we think that they have to be limited sensibly, which is what we have done.

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We dealt with the issue of future economic or other harm being threatened and leading to sex. The difficulty with that is that such a wide range is covered. Something that might frighten someone in a particular condition might not frighten someone else. I gave various examples on the last day in Committee.

The third point with which I should deal is conclusive presumptions. The noble Baroness says that they are always unfair. Again, we had that debate on the previous occasion. She will be aware that the conclusive presumptions are in relation to where the defendant relies on what is said by a third party as a justification for believing in consent, and to impersonation. That is already the current law, so they apply in pretty limited circumstances.

In the light of what I have said, I hope that noble Lords will withdraw or not move their amendments.

5.30 p.m.

Baroness Noakes: My Lords, I thank all noble Lords who have spoken and the Minister for his reply. As I am sure he is aware, I shall not test the opinion of the House on the subject today. However, I would not like to leave him in any doubt: we regard the issue as important and outstanding. He indicated to my noble friend Lord Campbell of Alloway that he had no desire to debate it further in the discussions that he promised on the objective test, but I sincerely hope that he will entertain it in those discussions. Indeed, I have every confidence that he will do so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ackner had given notice of his intention to move Amendment No. 10:

    Leave out Clause 1.

The noble and learned Lord said: My Lords, in view of the further discussions that will take place on Clause 1, I shall not move the amendment.

[Amendment No. 10 not moved.]

Clause 2 [Rape of a child under 13]:

[Amendments Nos. 11 and 12 not moved.]

Lord Falconer of Thoroton moved Amendment No. 13:

    Transpose Clause 2 to after Clause 7.

The noble and learned Lord said: My Lords, government Amendments Nos. 13, 24 and 33 rearrange Clauses 1 to 8 into two groups. The first comprises the non-consensual offences, and the second all the offences specifically intended to protect those aged under 13. Government Amendments Nos. 42, 45, 47, 53, 69, 74, 98, 99, 100, 111, 112, 117, 123, 124, 125, 129 and 131 merge the causing and inciting limbs of the child sex, abuse of trust, mental disorder, inducements and care worker offences. They also add an inciting limb to Clause 8 to provide a specific offence for cases in which a child under 13 is incited to engage in sexual activity. The purpose is to simplify the drafting of the Bill and reduce duplicated wording.

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The merging is made possible by the removal of Clause 76. In the introductory print of the Bill, Clause 76 had the effect of providing that a person could not be convicted of the offences to which it applied if the victim of such an offence was under 13. In those cases, one of the offences specifically designed to protect that age group was to be charged. However, Clause 76 applied only to the causing limbs of the groups of offences to which I referred, because it was intended that Clause 8 should be charged in cases involving the under-13s. However, Clause 76 did not apply to the inciting limbs of those offences, because there was no equivalent offence specifically for the under-13s. The reason for that is that the issue of consent is not relevant to incitement, as one cannot incite a person not to consent to sexual activity. "Causing" and "inciting" were therefore drafted as separate offences.

A government amendment in Committee removed Clause 76. We did so because it would have caused difficulties in cases where evidence that the child was under 13 emerged only during the trial. The removal of Clause 76 therefore made it possible to merge the causing and inciting limbs of the offences. However, as I have said, there was no specific offence in the Bill of inciting a child under 13, so Amendments Nos. 42 and 45 provide a specific offence to cover situations in which a child under 13 is incited to engage in sexual activity.

The amendments will mean that whenever the causing or inciting limbs of the offences on abuse of trust, mental disorder, care workers and so on are committed against a child under 13, a specific "under-13" offence will be available for the CPS to charge. That offence will provide a penalty of life imprisonment where penetration was caused or incited, or 14 years in other cases. However, unlike the position under the previous Clause 76, it will still be possible to secure a conviction under the abuse of the trust and mental disorder offences and so on where the evidence unexpectedly shows that the victim was under 13.

The amendments also have the effect of reducing duplicated wording in the Bill and the number of clauses. I apologise for the complicated explanation, but its purpose is to try to increase the simplicity of the Bill.

Amendment No. 116 was tabled by the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor of Hever. It proposes that, for the offence of inciting a person with a mental disorder or learning disability to engage in sexual activity, the maximum penalty should be life imprisonment where penetration is involved and 14 years in other cases. By deleting Clause 34 and amending Clause 33 to include incitement, government Amendments Nos. 111, 112 and 117 have the same effect as proposed in Amendment No. 116, so I invite those who tabled the amendment not to move it when the time comes.

I am afraid that I can offer no such comfort with respect to Amendments Nos. 43, 44, 51 and 52. Those have the effect of providing a maximum penalty of life imprisonment for the offences of causing a child under

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13 to engage in sexual activity and inciting a child under 16 to engage in sexual activity. The Bill provides for a maximum penalty of life for those offences where the activity is penetrative; in other cases it is 14 years.

Although we regard the offences as serious criminal behaviour, they involve activity ranging from penetration to sexual kissing. I think it right to retain a penalty structure that recognises the most serious abuse that can be inflicted. However, providing for a maximum 14-year penalty for non-penetrative activity none the less recognises the extent of the harm caused in other cases. Fourteen years is the maximum determinate penalty that can be imposed and is itself very severe. Therefore, if the time comes, I shall seek to argue against Amendments Nos. 43, 44, 51 and 52. I beg to move.

Baroness Noakes: My Lords, I thank the Minister for introducing his amendments, which we support. I tabled Amendments Nos. 43, 44, 51, 52 and 116 to the group as probing amendments to draw attention to the disparity of sentencing between the incitement offences involving under-13s in Clauses 8 and 11, and that for mentally disordered offenders in Clause 34. In effect, the Government's solution deals with the points. I have some remaining concerns on parity of sentencing, but I shall raise them under a later group of amendments.

Lord Thomas of Gresford: My Lords, I was delighted to hear the Minister use the word simplicity. How can I resist the amendments in that case?

On Question, amendment agreed to.

Lord Ackner moved Amendment No. 14:

    After Clause 2, insert the following new clause—

The defendant in rape etc. cases shall enjoy the same right to anonymity as is enjoyed by the complainant."

The noble and learned Lord said: My Lords, since the Committee stage a short time ago, I have been informed by an entirely impeccable source of the following facts. A local GP, carrying on a one-man practice, was suddenly charged by the police with having raped a girl under 16. I am not sure whether or not she was his patient. He was arrested in front of his family and was remanded in custody. He remained in custody for more than a week. He was then granted bail on terms that he left the county and lived with his father, only crossing the county boundaries for the purpose of obtaining legal advice. Very recently, and before he was due to go back to court, he was informed by the police that all charges had been withdrawn.

That incident focused my attention on why we have removed anonymity from the defendant. A defendant was granted anonymity by Section 6 of the Sexual Offences (Amendment) Act 1976 and enjoyed such anonymity for 12 years until Section 158 of the Criminal Justice Act 1988 withdrew it.

The Government's cri de coeur has been that we must adjust any imbalance that exists between complainant and defendant in criminal trials. Here is

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an imbalance that calls vociferously for an adjustment. I know of no reason for depriving the defendant of that immunity. If he does not want it he can in terms resile from it, but if he wants it, he should be entitled to retain it. If one considers the damage that must have been done to the reputation of that general practitioner locally—he has not yet been able to resume his practice—and what has happened in a number of cases when the press reveal that false allegations have been withdrawn at an early or a late stage, one wonders why this protection has been removed. From such inquiries that I have made, I can find no sensible justification for so doing. I beg to move.

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