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Baroness Noakes moved Amendment No. 154:

On Question, amendment agreed to.

Clause 58 [Sections 53 to 57: interpretation]:

Lord Falconer of Thoroton moved Amendment No. 155:

    Page 28, line 38, leave out from beginning to "person" in line 39 and insert "For the purposes of sections 53 to 57, a"

On Question, amendment agreed to.

9 Jun 2003 : Column 64

Baroness Noakes moved Amendment No. 156:

    Page 28, line 42, leave out subsection (3).

On Question, amendment agreed to.

The Deputy Speaker (Baroness Lockwood): My Lords, I beg the pardon of the noble Lord, Lord Lucas. I have to point out that I cannot now call Amendment No. 157, under the rules.

[Amendment No. 157 not moved.]

Lord Falconer of Thoroton moved Amendment No. 158:

    Page 29, line 6, at beginning insert "In those sections"

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 159:

    After Clause 58, insert the following new clause—

(1) In sections 54 and 56, "gain" means—
(a) any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount; or
(b) the goodwill of any person which is or appears likely, in time, to bring financial advantage.
(2) In those sections "prostitute" and "prostitution" have the meaning given by section 58(4)."

On Question, amendment agreed to.

Clause 60 [Trafficking into the UK for sexual exploitation]:

Baroness Noakes moved Amendment No. 160:

    Page 29, line 17, leave out from "if" to "he" in line 18.

On Question, amendment agreed to.

Clause 61 [Trafficking within the UK for sexual exploitation]:

Baroness Noakes moved Amendment No. 161:

    Page 29, line 33, leave out from "if" to "he" in line 34.

On Question, amendment agreed to.

Clause 62 [Trafficking out of the UK for sexual exploitation]:

Baroness Noakes moved Amendment No. 162:

    Page 30, line 6, leave out from "if" to "he" in line 7.

On Question, amendment agreed to.

Clause 63 [Sections 60 to 62: interpretation and jurisdiction]:

Baroness Noakes moved Amendment No. 163:

    Page 30, leave out line 35.

On Question, amendment agreed to.

Baroness Noakes moved Amendment No. 164:

    Before Clause 69, insert the following new clause—

(1) A person commits an offence if—
(a) he is in a public lavatory,
(b) he intentionally engages in an activity within subsection (2),
(c) the activity is sexual.

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(2) An activity is within this subsection if it involves—
(a) a person, with a part of that person's body or anything else, penetrating that or another person's vagina or anus;
(b) a person, with his penis, penetrating the mouth of another person;
(c) a person touching that person's vagina, anus or penis, other than through that person's clothes; or
(d) a person touching another person's vagina, anus or penis other than through the other person's clothes.
(3) A lavatory is a public lavatory if the public or any section of the public has or is permitted to have access to it whether on payment or otherwise.
(4) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years."

The noble Baroness said: My Lords, Amendment No. 164 would create an offence of sexual activity in a public lavatory. I shall also speak briefly to Amendment No. 192, which would apply the same offence in Northern Ireland, as we believe that Northern Ireland citizens should have the same protection as those in England and Wales.

Noble Lords will recall that the introductory version of the Bill had Clause 74 creating an offence of sexual activity in public. There was much wrong with that clause, and the Government withdrew it in Committee. Our main concern was that it appeared to encourage sex in a public lavatory, provided that it was behind closed cubicle doors, because it emphasised that a part of the participants in the activity had to be seen. It was our contention that Clause 74 needed to be amended to ensure that sex in a public lavatory was always an offence, whether it was seen or heard. Now that Clause 74 is no longer part of the Bill, we have tabled an amendment to insert a new clause to make it plain that sexual activity in a public lavatory is an offence.

When the Government launched the White Paper entitled Protecting the Public last November, the Minister, repeating the Statement of the Home Secretary in another place, said:

    "Our proposals for reform . . . will better protect the public, particularly children and the vulnerable".—[Official Report, 19/11/02; col. 286.]

He went on to say, at col. 288, that,

    "we will introduce a new offence to deal with specific sex acts in a public place. This will reinforce a sense of decency and respect for others".

We agreed with that and had high hopes of the Bill. Those hopes have not been fulfilled.

Before this Bill, there were three main ways in which sex in a public lavatory might have resulted in a criminal prosecution; namely, the common law offence of outraging public decency, Section 5 of the Public Order Act, and the male-only offence of gross indecency, under the Sexual Offences Act. This Bill repeals the gross indecency offence because it is not gender neutral—we have no quarrel with that. But in doing so it has taken away the offence which was used very considerably to deal with sex in lavatories—that

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offence specifically referred to lavatories. It has failed to replace it with anything else. The result is not the better protection promised by the Government, but worse protection. That is why we want a specific offence in this Bill to strengthen protection for the public.

In my opinion, the common law offence of outraging public decency is not sufficiently clear and robust on the issue of sex in public lavatories to be relied on. It requires the prosecution to prove that an act is of such a lewd, obscene or disgusting character as to outrage public decency. First, let us assume—no mean assumption—that this is always easy to prove in the case of sex in a public lavatory. Secondly, the prosecution must prove that the act was capable of being seen. That was the view of Mr Justice Ashworth who gave the judgment of the Appeal Court in the case of Mayling in 1996. He said:

    "It is, in the view of this Court, clear that more than one person must at least have been able to see the act complained of if the charge is to be made out".

As I understand it, there is no case law involving acts which have been experienced or heard but not seen. The Home Office review entitled Setting the Boundaries, which recommended a specific offence of sex in public, said in relation to the offence of outraging public decency that its

    "very width and flexibility make it an uncertain offence without the clarity required of modern law".

I turn now to the offences of harassment, alarm or distress under Sections 4A and 5 of the Public Order Act 1986. First, these offences are rarely used at present and so we cannot expect much protection from them in future. Secondly, the maximum penalty is a level 3 fine. The offence that I have drafted into Amendment No. 164 has a more realistic penalty of a maximum of two years' imprisonment on indictment or six months or the statutory maximum fine in summary proceedings. Incidentally, this penalty aligns with those for the new offences of exposure and voyeurism created by the Bill.

My case is that sexual activity in public lavatories should never, ever be permitted. I believe that the vast majority of people agree with that. Too often, public lavatories have become no-go areas. Parents are afraid to send their children unaccompanied into them, which is a particular problem for mothers with sons. Many public lavatories have had to be closed. The time has come to ensure that the public obtain the protection that they deserve and which the Government promised.

This Bill has weakened the law relating to sex in public lavatories. My modest amendment seeks to state clearly and unambiguously what is not permitted in public lavatories. I hope that the Government will not persist with their policy of less protection for the public and will support my amendment so that a clear signal is sent about what public lavatories are for and what they are not for. I beg to move.

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6 p.m.

Baroness Blatch: My Lords, I support my noble friend and I have added my name to her amendment. I speak also to Amendment No. 192 standing in my name, to which my noble friend has added her support. There is a serious lacuna in this Bill relating to dealing with sex in public toilets. There is, and has been for decades, a known problem of men using public toilets to meet other men for anonymous sexual encounters. That causes nuisance, annoyance and upset to very many people. Some complain about walking into public toilets and finding sexual activity already taking place. Others witness men in the street soliciting one another who then disappear into the toilets for sex. Some people live near public lavatories commonly used in this way and have the nuisance of men and cars coming and going at all hours of the day and night. There are also cases of children going into public toilets and being unwilling witnesses to sexual activity inside.

When Parliament legalised homosexual acts in private in 1967, it recognised this problem and created a specific statutory offence to deal with it. The legalisation of homosexual activity appears to have done little in 35 years to lessen the propensity of some homosexual men to use public toilets for sexual encounters. It is known as "cottaging". The fact that the activity even has a recognised slang name is indicative of the scale of the problem. Some homosexual charities even send so-called "outreach workers" to stand outside known cottaging grounds to hand out condoms to the homosexual men who come there for sex.

Sex in public toilets is a blight on many communities. That has certainly been confirmed by the hundreds of letters we have received on this issue. When I spoke in Committee, I listed a selection of cases in which the police had been having to clamp down on homosexual activity in public toilets around the country. As my noble friend said, the law that the police rely on when clamping down on such activities is gross indecency. Gross indecency is a clear, statutory offence which outlaws sexual activity if it takes place in a public toilet. It simply requires proof that the activity took place. It is a law that works.

It is not being repealed in this Bill because it is ineffective; it is being repealed because the Government regard it as discriminatory as it applies only to homosexual acts. The solution is simple—extend gross indecency to all sexual acts. To borrow the phase used by the noble Lord, Lord Alli, on 19th May, at col. 583, this would be "sexuality neutral". Instead, gross indecency is being repealed and nothing is being put in its place.

Amendment No. 164, tabled by my noble friend and to which I have added my name, creates a straightforward criminal offence which addresses this problem. It cannot be said to attract any of the criticism that was directed at the Government's Clause 74 in the introductory print of the Bill because it covers only sexual activity in public toilets. It does not cover

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sexual activity in people's back gardens or on mountainsides or anywhere else. It deals with the problem of public lavatories only.

This issue of sex in public lavatories is a concern to Members on all Benches in your Lordships' House. Public lavatories should be clean and safe, especially for children and their families. They should be free from seedy and, frankly, disgusting practices. My concern is that the very way in which the police can take action against such practices is being repealed and, as I said, nothing is being put in its place.

Last time, the Minister said:

    "Our aim has always been to ensure that the law provides sufficient protection from such behaviour, which everyone in this House feels should take place in private",—[Official Report, 19/5/03; col. 585.]

That means, not in a public lavatory.

As the Bill stands, the Government will not achieve that aim. As everyone has agreed that the problem needs to be dealt with and since there is a much-used criminal offence on the statute book which is being removed by this Bill, why is the Minister not prepared to put something in its place to ensure that all the same ground is covered along with heterosexual and lesbian and gay activity?

If there is any shadow of doubt whether sexual activity in public toilets will be criminal after this Bill is passed, the Bill must be amended to remove that doubt. And there is doubt, because the Minister tells us that we should have to fall back on the existing common law offence of outraging public decency or on Section 5 of the Public Order Act 1986.

I ask the Minister: which one? Which of these offences will apply to the men caught engaging in sexual activity in a toilet cubicle? Is that outraging public decency or is it behaviour likely to cause harassment, alarm or distress? If the Minister cannot say with certainty, he is betraying that there is doubt about the scope of those offences, which of them the police would use and the view taken by the court.

The noble and learned Lord referred to the common law offence of outraging public decency as focusing on the broad nature of the behaviour and the impact that it causes—rather than on the technicalities. It is precisely the general nature of the offences that creates the risk that they will fail to catch the kind of behaviour about which we are all concerned.

Case law on outraging public decency suggests that the offence is only committed where two or more members of the public can witness the activity. The Minister previously referred to Smith and Hogan—the leading criminal law text book—saying that it suggested that CCTV could provide the necessary evidence for a public decency offence conviction. Is he seriously suggesting that every toilet cubicle in the country should be fitted with a CCTV camera, peering down into it? I hardly think that the public would stand for that. If they did, CCTV evidence of what was going on in the cubicle would not be enough to make out the offence. Observing the offence via a camera is not enough. The offence must occur in public and at least two people must see it with their own eyes.

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The 10th edition of Smith and Hogan, at page 490, simply states that a CCTV camera may provide evidence that the act took place where it could be seen by two or more people. If the camera simply shows that the act took place in a cubicle where it could not be seen by anyone but the participants, that would not be enough. In fact, CCTV coverage could be used by the defence. Sex in public toilets could continue without committing an offence under the only remaining legal remedy—common law on outraging public decency or Section 5 of the Public Order Act 1986.

A witness may see two men go into the cubicle and hear them engaging in sexual activity—but since he cannot see it, the offence of outraging public decency would not apply. My noble friend's amendment is the solution. It is clear. It is unambiguous. It does not require that the activity be seen any more than the offence of gross indecency. The Minister said that it is difficult to know from hearing noises which act is taking place, yet that is true of gross indecency—an offence that works perfectly well.

It may be perfectly clear to witnesses that one or more of the activities listed in the proposed subsection (2) is taking place without needing to see it. It is certainly easier to prove an offence under the amendment than that the act crosses the threshold of outraging public decency and could be witnessed by two or more members of the public.

The suggested offence would be easier to prove than the public order offence of causing harassment, alarm or distress—originally intended to deal with minor acts of hooliganism, not sexual offences. The definition of what causes harassment, alarm or distress is vague and variable—whereas the list of prohibited activities in Amendment No. 164 is clear and fixed, and my noble friend's amendment has the benefit of being non-discriminatory. It does not focus on homosexuality, which is a major concern of this Government. It does not criminalise any behaviour that your Lordships may seek to defend. It only criminalises behaviour that we all agree ought to be criminalised. Why cannot we have certainly and reassurance for the public, by having a clear offence in statute? Not to accept the amendment is to accept that sex in public lavatories will continue with much less protection for decent, law-abiding communities than at present.

Amendment No. 192 applies to Northern Ireland my noble friend's proposed offence of sexual activity in a public lavatory. Until two o'clock on 20th May, Northern Ireland did not have to worry about that matter. In the draft Bill, gross indecency remained on Northern Ireland's statute book. Until then, it was government policy to leave the law on sexual offences in Northern Ireland largely untouched.

On 19th May, the noble and learned Lord restated the Government's position that,

    "a fundamental reform of the law on sex offences in Northern Ireland does not form part of this Bill".—[Official Report, 19/5/03; col. 678.]

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The Government decided, without any consultation, to amend Northern Ireland's laws on sex offences in one of the most controversial ways possible, by amending Schedule 5 to repeal the offence of gross indecency—which provides real protection against a known public nuisance. Repealing that offence while putting nothing in its place is irresponsible and careless. To do so in Northern Ireland, where the consultation on sexual offences has not even been published, is downright arrogant.

Some people suspect that the Government may be taking advantage of the suspension of the Northern Ireland Assembly to sneak through this controversial reform. Certainly the God-fearing people of Northern Ireland are unlikely to be pleased with the change. Nor will the police—judging from a conversation with a serving officer in the Province. One officer advised me that the offence of outraging public decency is simply not used for such behaviour. He has consulted with others in the police service and their view is that Northern Ireland, as with England and Wales, would be moving into uncharted waters. No one knows what views the courts would take once the offence of gross indecency has been moved.

The officer repeatedly stated that it is an unknown quantity. He and his colleagues did not regard that as satisfactory. They are concerned that the common law offence will be regarded as too archaic properly to address the problem. In particular, they feel that it will be persuade a court that the activity has passed the test of causing outrage. The police want new legislation that they can be confident will enable them to take action. My noble friend's amendment would do just that, which is my reason for seeking to apply it to Northern Ireland also.

6.15 p.m.

Lord Glentoran: My Lords, I rise to speak briefly—wearing my hat as Opposition Front Bench spokesman on Northern Ireland affairs—in support of my noble friend's amendment. I am intervening purely and simply because of the number of letters that I have received on the subject from across the Province. There is no sign that those letters were organised. They have come from north, west, south and east of the Province. They have come handwritten on little pieces of paper, formally typed and informally typed. This issue has produced the largest postbag from people in Northern Ireland since I became Northern Ireland spokesman in your Lordships' House.

It is quite wrong to leave the law so exposed. The key points made by my correspondents concern safety for children and sneaking through this sort of legislative change in the Province while it does not have a Assembly in which the issue can be raised. I support Amendment No. 192.

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