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Lord Lucas moved Amendment No. 174:

"( ) the defendant knew or had reason to believe that he or another person had committed an offence under section 64;"

The noble Lord said: My Lords, this amendment arises out of discussions we had in Committee and afterwards. An offence under Clause 64, entitled, Administering a substance with intent, appears to me to lack a link to Clause 77. It seems to me that if someone knew that the woman or man in question had been drugged to the extent that it was an offence under Clause 64, or who believed that that had happened, that should be grounds equivalent to the other grounds in the relevant clause why the defendant should then have to prove that he had reasonable grounds for believing that consent had been given. I cannot envisage a circumstance under which one would know that someone had been drugged and one could reasonably be offered the shelter of not coming within Clause 77. It is almost the same as knowing that someone is unconscious because you know that their brain is not connected with the world having been

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given rohypnol or some equivalent drug. I put the amendment forward as a suggestion but, having suffered grievously on previous amendments, I hold out no great hope of success. I beg to move.

Baroness Noakes: My Lords, I support my noble friend's amendment. No doubt we shall debate the presumption of belief at a later stage but if we are to have such a presumption it seems to me that this is an entirely sensible one to include and that it provides the logical link to which my noble friend referred.

Lord Falconer of Thoroton: My Lords, I agree that it is extremely hard to imagine how a defendant could successfully argue in the circumstances posited in the amendment that he believed in consent. The wording of the amendment as tabled is not in accordance with the way in which the rest of Clause 77 has been framed. However, that is largely a question of technicality. I am concerned that the amendment proposes that it would be sufficient for the prosecution to prove that the defendant had reason to believe. That does not set a high enough standard of proof. The law should depend on whether the defendant knew of the existence of the given circumstances. Those objections aside, there may be some merit in the amendment and I should like to take time to consider it further. I shall return to it at Third Reading.

Lord Lucas: My Lords, I am immensely cheered. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 175 and 176 not moved.]

Clause 78 [Conclusive presumptions about consent]:

Lord Falconer of Thoroton moved Amendment No. 177:

    Page 37, line 6, leave out paragraphs (a) and (b) and insert "that, in all the circumstances (including any steps the defendant took to ascertain whether the complainant consented), the defendant could reasonably be expected to have doubted whether the complainant consented.".

The noble and learned Lord said: My Lords, I beg to move.

Lord Campbell of Alloway: My Lords, I have a few words to say about the amendment. It is really a reflection of its sister amendment, which was Amendment No. 6 to Clause 1(3), and of a series of similar amendments to Clauses 3, 5 and 7. As an implementing provision, it is not appropriate.

Clause 78 would alter the burden of proof. As it stands, the burden of proof under the amendment would be very simple. The Crown would have to establish beyond all reasonable doubt that the accused did not take such steps as he could reasonably have been expected to take in all the circumstances of ascertaining whether the complainant consented. With a burden of proof shifted under Clauses 77 and 78, the result would be wholly unacceptable.

Lord Cooke of Thorndon: My Lords, I support the noble Lord, Lord Campbell of Alloway. The Minister

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tabled an amendment to Clause 1(3) to introduce a partly objective test in cases where the victim does not in truth consent, but the defence of honest belief in consent is raised. The element of objectiveness under the amended test would be whether,

    "in all the circumstances (including any steps A has taken to ascertain whether B consents), A could reasonably be expected to doubt whether B consents".

On 2nd June, the sense of the House appeared to be that some element of objectivity was desirable. I respectfully applaud the Government's amendment, which appears an elegant and comprehensive way of dealing with a distasteful subject. It may well be an improvement on the enacted laws of both New Zealand and Canada. However, at present it seems less clear—it has not been specifically debated—whether, assuming that the amendment is agreed to, the complicated provisions of Clauses 77 and 78 would add anything of much value to the legislation. In one view, they may be otiose and productive of more confusion to juries than clarification.

If now is not the occasion to debate the question, I hope that it will be carefully considered by the Minister and, if necessary, reviewed at Third Reading.

Lord Falconer of Thoroton: My Lords, I have made a mistake. On the first day of Report, we left the issue by saying that we would come back and discuss the precise formulation of the reasonableness test using shorthand. As part of that, I indicated that I would not move my amendments on reasonableness. I should not have moved Amendment No. 177, because it is part of that sequence of reasonableness amendments. It would add my definition in Clause 1 to Clause 78. I am grateful to the noble Lord, Lord Campbell of Alloway, for drawing attention to my mistake, in effect. That also indicates why we have not yet had the debate to which the noble and learned Lord, Lord Cooke, referred. I apologise and, so that I do not go back on what I said, I cravenly beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 178 and 179 not moved.]

Clause 79 [Sections 77 and 78: relevant acts]:

[Amendment No. 180 not moved.]

Clause 80 ["Sexual"]:

[Amendment No. 180A not moved.]

Lord Lucas moved Amendment No. 181:

    Page 38, line 5, after "sexual" insert "in intent"

The noble Lord said: My Lords, in moving Amendment No. 181, I shall speak also to Amendment No. 182. Sadly, the noble Lord, Lord Northbourne, is away this week, so is not in a position to speak to his amendments, but we both share continuing concern about the use of "sexual" in the context of the Bill, particularly on qualifications such as touching being sexual.

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We are both clear in our opinion that the word is too broad and ill-defined, and will lead to many circumstances in which men in particular—given some court cases that I remember, I am sure that the same will apply to women—when in the ordinary operations of day-to-day life as a teacher, a nurse or anyone else charged with the care of children, are unsure whether "sexual" applies to them. In our litigious society—one that takes extremely seriously sexual crimes towards children, as it should—they might tend to err on the side of caution and of not giving a child the comfort or help that it perhaps deserves or needs in the circumstances, for fear of being accused of a crime under the Bill because of the use of "sexual".

In common parlance, to say that touching is sexual could easily, in the minds of a jury or the public, be broadened to include acts that are not sexual in intent. If a teacher touches a boy on the bottom, or if a male teacher touches a girl on the bottom, one immediately connects that act with "sexual". It is sexual because that is a sexual gesture. It is commonly part of the sexual lexicon of relationships between the two sexes.

The use of the word "sexual" in such contexts in ordinary conversation and in ordinary parlance makes it such a dangerous word to use in this Bill. I at least am concerned that we should not put up further barriers to a proper relationship between a child and a caring adult such as a teacher where we should allow a human interaction—where the interaction between the two should not be bound by a rule book the size of a Dispatch Box. One should be allowed to act naturally and to feel confident in that where there is no element of sexual intent. The effect of my amendments is to make it clear that the "sexual intent" is to be considered, not just "sexual".

Unless the Minister disagrees with me, I would like to know what kind of acts that are not sexual in intent he intends should be caught by the various clauses in the Bill that use the word "sexual". I do not intend to press the matter to a Division today, but I shall consult with the noble Lord, Lord Northbourne, and others to decide what we should do by the end of the Bill. It strikes me as being the one remaining aspect of the Bill where the level of potential damage, albeit unintended, to the way in which teachers and others relate to their charges is not worth any benefit which may arise from making it slightly easier to prosecute people under its various provisions. I beg to move.

The Deputy Speaker (Lord Elton): My Lords, I should draw your Lordships' attention to a misprint in the groupings list. The last amendment in the group should be Amendment No. 182ZA and not Amendment No. 182A as printed.

7.30 p.m.

Lord Falconer of Thoroton: My Lords, dealing with Amendments Nos. 181 and 182, Clause 83, which, as the noble Lord, Lord Lucas, pointed out, is fundamental to many of the offences in Part 1, has been drafted so that it captures only activity that would generally be thought of as sexual. Our definition requires the jury to use three criteria in its assessment

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of whether an activity was sexual: the nature of the act itself; the circumstances in which it took place; and the purpose of any person in relation to the act. But the first part of the test rules out any activity that a reasonable person would never consider sexual by reason of its very nature; for example, removing a person's shoes. We do not want to capture activity that no reasonable person would consider to be sexual just because the defendant happened to have a secret fetish not known to the victim.

Only where the jury believes that the activity was possibly sexual—for example, touching a person's leg—will the jury need to go on to look at the defendant's state of mind to see whether that touching was in fact sexual or whether its purpose or other circumstances mean that it was innocent. In some cases, the purpose of the defendant will be pivotal to the decision. But in many other cases—for example, where one person masturbates the other—a reasonable person would be in no doubt simply because of the nature of the act itself that the act was sexual.

In other cases, it will be clear that the activity was sexual from the nature of the act together with the circumstances in which it took place. In those circumstances, it will not be necessary to examine sexual intent to reach that conclusion. However, if we were to introduce Amendment No. 181, that would require the prosecution in every case to prove that either the defendant or someone else involved in the sexual activity had a sexual purpose in relation to the act. As I explained in reply to a similar amendment tabled in Committee, this would add significantly—and we believe unnecessarily—to the evidential burden.

Amending paragraph (a) of Clause 80 to require that a reasonable person would, from the nature of the activity or touching, consider that it may at least be sexual in intent would not be acceptable. What we are looking at here is whether an activity was sexual, not whether it was of sexual intent.

Paragraph (a) is intended to cover not only acts that may or may not be sexual depending on any person's intent, but is also intended to cover acts that are always sexual—in which case one does not need to add the additional element of intent. In such cases, it is not necessary to examine sexual intent.

I believe that the amendment misses the point of the first part of the test, which is to rule out any acts that no reasonable person would from their nature consider may be sexual. Therefore, under the noble Lord's amendment one catches things that one does not want to catch and one imposes an additional hurdle in relation to things to which one does not need to add the intent aspect in order to catch.

Clause 80(b) already includes as one of its criteria the purpose of any person in relation to the act. It follows that this paragraph already covers the question of sexual intent and covers it in such a way as to make clear that sexual intent, along with the nature and circumstances of the activity, can make that activity sexual. I cannot therefore see any need for

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Amendment No. 182. For the reasons given, I invite the noble Lord to withdraw his amendment and not move the later one.

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