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The noble Lord, Lord Rix, raised a number of issues about mental impairment cases. He and others raised particular concerns about Clause 33(1), for example, suggesting that a provision that says you have to know that the victim was suffering from mental impairment to be guilty risks giving people a way of getting out of the offence. Again, a balance has to be struck. In some cases, the position will be utterly apparent. In other cases, particularly if the condition is such that behaviour may change from time to time, the true position might not be apparent. Some of the offences involve a maximum of life imprisonment, so some balance must be struck to ensure that an injustice is not done. We think we have the right balance there.
I saw the noble Lord, Lord Rix, together with representatives of a number of voluntary sector organisations connected with helping people with mental impairments. He forcefully and effectively made the pointwhich he repeated in the House this morningthat the care worker provision should not be regarded as a residual provision when inducement, threats or rape cannot be proved. That is just the sort
The noble Lord, Lord Alli, asked about a power to confiscate passports. I have spoken to the police about that. They do not seek such a power. The power to seek an order to prevent somebody going abroad, upon notification being given, is thought to be adequate in that respect. Yes, the British police will tell foreign police when someone is going abroad. That is done as a matter of courseor depending on the risk. Some noble Lords asked whether the eight-day notification of a person going on holiday should be reduced. We have said that it will be; the Bill gives a power to make regulations in that regard, and we will shortly give our decision on the period. First, we need to take advice on what is proportionate.
The noble Lord, Lord Skelmersdale, raised various points. First, sex with a corpse is a genuinely new offence, whereas sex with animals was already an offence. He said that it was odd that when a rape was committed under the influence of illegally administered drugs, it would only get 10 years, whereas the rape by itself could get a maximum penalty of life. In fact, the offence that carries the maximum 10 years is the administration of the drug. That is where the 10 years comes in.
The noble Lord asked us to distinguish between those cases involving people with a mental impairment when they are overborne and those who do not have the capacity to consent. We have done that in the Bill, drawing a distinction between those unable to refuse and those who are overborne in various ways. The definition comes in a large number of places, but I suggest that the noble Lord looks at the bottom of page 15 and the top of page 16 of the Bill . He asked about the test that we are using; we have not gone for the Law Commission's test, but for something similar.
I shall write to the noble Lord, Lord Carlile, on the meaning of "at least". I take issue with him for his views on reasonableness, for reasons that I have already given. However, I agree that when standard directions are prepared when the Bill becomes law, it will be important to ensure that the JSB is involved in helping us to prepare those drafts.
The noble Baroness, Lady Thornton, asked about an ability to stop a meeting that occurs outside England and Wales, in relation to the grooming offence. In some cases it will be an offence outside England and Wales, but it would obviously be difficult to enforce, as it would be a matter for the local enforcment authorites rather than ours.
The noble Baroness also referred to the difference between commercial and non-commercial exploitation in relation to child pornography, because the words "for gain" are used. Again, that is there to strike the balance between something that one would not want to criminalise, because it had been done in a non-criminal way, and something that one would want to criminalise because it was done in a criminal way.
The noble Baroness, Lady Gibson, referred to Clause 14 and asked whether there should be a reference to treatment. As we are setting out a series of criminal offences, we do not think that such a reference is appropriate in the Bill, although it is plainly a matter that should be considered.
The noble Lord, Lord Hylton, also referred to the eight-day period, which I have already spoken on. In relation to trafficking, he asked why we could not have a separate definition of children. Everybody is covered as regards criminal offences in relation to trafficking. The only reason for putting in a separate definition of children would be to have a higher maximum penalty in relation to trafficking children. The penalty in the Bill is 14 years maximum, which is the highest determinate sentence that one can get. I am not sure that it is necessary to go as far as the noble Lord suggests. I shall write to him on the other specific points on which he was kind enough to write to me.
The noble Lord, Lord Campbell-Savours, took a fundamental point of principle and said that one should be incredibly careful to ensure that there were not wrongful convictions in relation to rape and other sexual crimes. That is absolutely right. One has to trust the jury to some extent, and these are difficult cases involving difficult issues for juries to resolve. We do not believe that anything that we are doing will make the risk of wrongful conviction any higher than it is. We do not think that putting in reasonableness or the rebuttal of presumption in any way increases the risk of a wrong conviction. One should bear in mind that the reasonableness requirement that we are putting in does not detract from the basic proposition that one is guilty of the offence of rape only if, in fact, the victim did not consent. If he or she did consent, the question of reasonableness does not come into it: there is no offence of rape.
The noble and learned Lord, Lord Ackner, said that the administration of justice was being politicised. He regarded it as offensive to describe the law as archaic, incoherent and discriminatory. I described the law as archaic because, as was said in the course of the debate, one has to prove that one is a mental defective to get protection under the current law. I described it as incoherent because it has grown up over a period of time in different statutes with the result that different age groups attract different protections not on the basis of coherence but on the basis of the history of the law. I described it as discriminatory because it treats male homosexuals in a different way from everyone else. That is why I used those three adjectives. I did not intend to be offensive; I considered that those adjectives were accurate.
The noble and learned Lord, Lord Ackner, kept using the word "suppressed" in relation to the report of Mrs Justice Heilbron in the late 1970s and the report of the Criminal Law Revision Committee. As the noble and learned Lord rightly said, we published a detailed review of sexual offences, Setting the
The noble Lord, Lord Monson, raised a number of points and focused primarily on the interrelationship between Clauses 71 and 70, but also referred to a number of clauses which he commended. It is not worthwhile commenting further on Clause 74 as I have indicated the Government's position on that.
The noble Earl, Lord Listowel, raised the point that a large number of noble Lords mentioned; namely, that we should be careful not to criminalise children in particular when the criminal law is not appropriate. I fully accept the principle underlying his remarks and indicated where the balance must be struck.
The noble and learned Lord, Lord Lloyd of Berwick, said that we should not rely on the concept of reasonableness. For the reasons that I have mentioned I say with the greatest respect to the noble and learned Lord that he is wrong on that matter. We have set out in detail why we intend to change the law in that respect.
I believe that I have dealt with the points raised by my noble friend Lady Jay of Paddington. My noble friend Lord Adebowale mentioned care workers and Clause 33. He asked about the defence that someone could claim not to know that the victim suffered from a mental impairment. I believe that I have dealt with that point.
The noble Baroness, Lady Walmsley, asked me a large number of questions to which I shall respond in writing. However, I should mention two that have not been touched upon. First, as regards anonymity for the defendant in sex crime cases, our current view is that we do not think that the defendant should have anonymity as that would signal that we regarded that crime as being in a different category from other crimes. Where one is wrongly charged with murder, one's reputation is obviously severely or potentially damaged by that, but one is not given the right to anonymity. As my right honourable friend the Home Secretary said, he is prepared to listen to argument on that matter. Our current view is that there should not be anonymity for defendants in sex crime cases but that matter can be debated.
I turn to the important issue of Northern Ireland. Northern Ireland will conduct its own review of sexual offences. To the extent that any of the changes that we propose are not inconsistent with the current underlying law in Northern Ireland they will apply to Northern Ireland, but otherwise they will not until that review has been conducted.
A significant number of issues are involved in this matter. However, as I said at the beginning of my remarks, this is an area where we are all seeking to achieve the same outcomes. I very much look forward to the debates in the weeks and months to come.
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