Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, I remind the House that at one stage in my police career I was the lead for the Metropolitan Police on restorative justice, working with Professor Larry Sherman. The evidence from that experience and other academic studies shows that the benefits to victims, in terms of allaying fear and victim satisfaction, and to perpetrators, in terms of engagement with the criminal justice process, and by being confronted, as the noble Lord, Lord Laming, has just said, by their offending behaviour, and in terms of reducing recidivism, are unequivocal.

The only objection to the amendment would be political, because restorative justice is wrongly perceived by those who do not understand the process as going soft on offenders; it is the opposite. I agree with the noble Lord, Lord Laming, about short sentences. However, on the point made by the noble Lord, Lord Cormack, it does not necessarily have to be an alternative to prison in very serious cases. The important outcomes are victim satisfaction and the offender having to confront their offending behaviour.

The Minister may argue that people get a long time in prison in which to reflect on their wrongdoing. However, a colleague of mine did some research on street robbery and went to a young offenders’ institution to interview those who had been convicted and incarcerated for that offence. Many of those he spoke to did not understand why they were in the young offenders’ institution. The process was so detached from them—they just sat at the back of the court while other people spoke and dealt with the case, without their involvement at all. They genuinely did not understand why they were in prison. That is why restorative justice is important.

The question is: are the Government going to be led by the evidence and support this amendment, or are they going to object to it, based on misconceptions?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I, too, support the amendment. It is modest and worth while, and is another step down the road.

I remember that the noble Lord, Lord McNally, introduced the phrase restorative justice into the statute book. I cannot remember which piece of legislation it was but at that point he spoke perceptively when he said that it was going to be a long road to get restorative justice embedded within the criminal justice system, whether in terms of probation, YOTs or prison. He was right and the necessity for the amendment proves that because the noble Baroness, Lady Meacher, gave a number of examples, including where the funding or initiatives have stalled and the momentum with restorative justice has been lost. From memory, the initial introduction of restorative justice was through a separate funding stream for YOTs to use these programmes. So I very much support the amendment. It needs constant activity and oversight by a Minister to get the restorative justice programmes embedded in the system as a whole.

One reason why what I am saying is perhaps more relevant than what some noble Lords have said is that I have some scepticism on the issue. I am happy to have a cup of tea with the noble Baroness, Lady Meacher, to express my scepticism. While I support the amendment, it requires a long-term programme, and it is for the Government to make sure that that programme is implemented.

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[Lord Faulks (Non-Afl)]

Before we hear from the Minister and the noble Lord for the Opposition, I shall simply add that of course the aims identified in this amendment are probably shared by everybody in your Lordships’ House but, ultimately, is it not for the Government of the day to decide on these things? I think we can probably predict what most royal commissions would recommend following the terms of reference reflecting this amendment. Ultimately, a Government have to decide whether in certain circumstances, as was the case in the Bill, there need to be mandatory sentences or the prison estate needs more money spent on it. These are matters for government. I will be interested to hear what the noble Lord for the Opposition says about this; during the course of the Bill, I do not think the Labour Party has opposed the increased mandatory sentences in various areas. That is a position it is entitled to take. A royal commission can recommend; a Government have to decide.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support this amendment and every element of what the noble Lord, Lord Marks, said when he was introducing it. It is about criminal sentencing. My noble friend Lord Bach raised the question of a royal commission on the criminal justice system as a whole, and I will be interested to hear the Minister’s response on that.

The noble Lord, Lord Faulks, correctly identified that in this Bill the Opposition have supported some measures that have led to increased sentences. In a sense, the heart of the problem is that the constant inflation of sentences is leading to the overarching problem we have now with overcrowding and squalor in our prisons and a lack of effectiveness in our out-of-court sentences. I understood that to be the main purpose of the royal commission.

I want to give a very simple example of my role as a magistrate sentencing, as I was yesterday, in a magistrates’ court in London. As a magistrate, I have powers to sentence up to six months’ custody for a single offence. When, on occasion, I do that, I simply do not know how long that person will spend in custody. When I first became a magistrate about 14 years ago, I used to say to the offender, “You will spend half your time in custody and then, at the discretion of the prison governor, you will get out”. I do not say that any more because I do not know whether it is true. Sometimes the offender will get out after one-quarter of their sentence, if there are particular reasons and it is a non-violent offence, and sometimes, if they commit relatively less serious offences while they are in prison, they may serve their whole term, so I simply do not say that any more when I am sentencing.

That is a very particular example; there are many examples within sentencing as a whole where any sentencer, including a magistrate, is asked to use fairly obscure phrases which are not simple to understand for the person being sentenced. There is a role for an overall look at this to try to have consistency in sentencing and the words used while sentencing. The noble Lord’s amendment goes further than that as it is looking at community sentences as well. There really is a strong need for an overarching view of criminal sentencing.

[Lord Wolfson of Tredegar (Con)]

My Lords, this amendment, tabled by the noble Lord, Lord Marks of Henley-on-Thames, would require the Secretary of State to establish a royal commission to review and report on criminal sentencing. The amendment was tabled in Committee and I am glad to have the opportunity to further clarify the Government’s position on this matter.

First, let me pick up the direct question put to me by the noble Lord, Lord Bach, which I think was echoed by my noble friend Lord Cormack and mentioned by the noble Lord, Lord Ponsonby of Shulbrede. The 2019 Conservative manifesto did commit, as noted in Committee, to set up a royal commission on the criminal justice system. Work to set up that royal commission was slowed at the onset of the pandemic to focus on the very practical matter of ensuring that the criminal justice system could continue to operate—as it did, thanks to a lot of hard work by staff up and down the country—in a Covid-safe environment. As work on the commission was paused, officials were redeployed to other work and other roles in government.

Significant new programmes of work have now been stood up to support recovery and build back a better criminal justice system. That means that many of the areas the royal commission was due to look at are now being progressed more quickly, for example on efficiency and effectiveness of the system. That includes ensuring that all component parts of the extremely complex system—which we call the criminal justice system but is an amalgam of all sorts of systems—work together to deliver swifter justice for victims. As I said on the last group, on 9 December we announced our consultation on a new victims’ Bill to improve the level of service victims can expect from the criminal justice system. We remain committed to delivering our manifesto commitments. However, we think it is right to continue to pause the work on the royal commission on the criminal justice system while we focus on delivering these priorities over the coming months. We will then revisit what further role there is for the royal commission.

At the same time, let me clarify a point of confusion, which may have been behind the noble Lord’s question— I do not know. To be very clear, the amendment, as drafted, calls for a royal commission on criminal sentencing, not a royal commission on the criminal justice system. For the record and to make it very clear, when my noble and learned friend Lord Stewart of Dirleton previously responded and assured the Committee that a royal commission of this nature was unnecessary, it was the royal commission on criminal sentencing in the amendment that he was referring to. I see the noble Lord nodding and I am grateful; I did not want there to be any confusion on the point.

The sentencing White Paper published last year set out the Government’s proposals for reform to the sentencing and release framework. Work is under way on the non-legislative commitments made there; the legislative measures are being delivered by the Bill. I can assure the noble and learned Lord, Lord Thomas of Cwmgiedd, that we want to adopt a strategic approach here. We believe that the White Paper delivers that, but I am sure that the conversations on these points will continue. I agree with the noble Lord, Lord Beith, that the taxpayer’s pound is an important factor here. We want value for money in this and other areas of government. The rationale of the White Paper is to deliver a smarter, more targeted approach to sentencing. The most serious violent and sexual offenders should serve sentences that reflect the severity of their offending behaviour.

I say to the House in general, responding in particular to the point made by the noble Baroness, Lady Fox of Buckley, that it is crucial that the Government listen when there are issues on which the public feels strongly, and there are some offences that society finds particularly concerning and, indeed, offensive. At the same time, for lower-level crimes, we are making community sentences more effective, so they can offer an appropriate level of punishment and address the underlying drivers of offending. As part of that—to pick up the point made by the noble Baroness, Lady Jones of Moulsecoomb—we do of course look at the particular issues facing women in prison. We have discussed that on a number of occasions, and I intend no discourtesy by not repeating now what I have said before. We have spoken, and we have focused as a Government, on the needs of women in prison and sentencing women to prison, particularly the primary carers issue, which we have discussed and debated.

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Moved by

[Lord Ponsonby of Shulbrede]

104B: After Clause 172, insert the following new Clause—
“Video recorded cross-examination or re-examination of complainants in respect of sexual offences and modern slavery offences
(1) Section 28 of the Youth Justice and Criminal Evidence Act 1999 comes into force in relation to proceedings to which subsection (2) applies on the day on which this Act is passed.(2) This subsection applies where a witness is eligible for assistance by virtue of section 17(4) of the Youth Justice and Criminal Evidence Act 1999 (complainants in respect of a sexual offence or modern slavery offence who are witnesses in proceedings relating to that offence, or that offence and any other offences).(3) This section has effect notwithstanding section 68(3) of the Youth Justice and Criminal Evidence Act 1999.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the proposed new clause in Amendment 104B would bring Section 28 of the Youth Justice and Criminal Evidence Act 1999, which provides for the cross-examination of vulnerable witnesses to be recorded rather than undertaken in court, fully into force for victims of sexual offences and modern slavery offences. When we debated this in Committee, the point was made that there have been a number of pilots of this approach in, I believe, three Crown Courts in England and Wales. A further point was made in the response by the noble and learned Lord, the Advocate-General for Scotland, that it would be judge-intensive to have judges present when recording the evidence. For those reasons, we were invited to reject the amendment.

In response to those points, I ask the Minister when the results of the pilot will come forward, so we can have an informed decision about whether to roll out this approach. I also question the assertion that this is a very judge-intensive process because judges have to be present when the recordings are made. I made this point to the Minister when we met in private a few days ago. I have done this procedure several times within youth court and, as far as I am aware, there was never a judge or magistrate present then. I have also done this process in Crown Court and for an appeal. On that instance, I was sitting as a winger and there was a Crown Court judge in the middle. We heard the evidence by videolink and, again, as far as I was aware, there was no judge present. So I question the assertion that it would be very judge-intensive to use this approach in the adult court for victims of sexual offences and modern slavery offences.

The proposed new clause in Amendment 104C would give the complainant a right of representation with legal aid, if they are financially eligible, to oppose any application to admit Section 41 material about them. It would also give complainants the right to appeal to the Court of Appeal if the application is allowed, in whole or in part. The proposed new clause also provides that the complainant is not compellable as a witness at the application. I am grateful to the noble Baroness, Lady Jones of Moulsecoomb, for putting her name to this amendment.

This issue was again explored at some length in Committee. My noble and learned friend Lord Falconer made the point that it is very sensitive. If there is the possibility of somebody’s sexual history becoming known in a wider context within court, it acts as a cooling method for people making allegations. This is a way around that problem to try to give people the confidence to come forward and make complaints of sexual assaults.

Amendment 107C is in the name of my noble friend Lord Coaker. It would require police forces to have a specialist rape and serious sexual offences, or RASSO, unit. As background, I have three facts to share with the House. First, two-fifths of police forces currently do not have one of these units, which specialise in the prosecution of rape and serious sexual offences and supporting victims of these offences. Secondly, the current prosecution rate for reported rapes is about 1.4%. No matter how many times we hear this statistic, it remains deeply shocking. Finally, Home Office figures show that the number of victims dropping out of prosecutions has increased to a record 41%. In each of these cases, we are failing to deliver justice for a victim and to tackle a dangerous predator.

MPs and noble Lords from across this House have worked, with limited success, to make tackling violence against women and girls a part of this Bill, including explicitly recognising violence against women and girls as serious violence under the serious violence reduction duty. We are in a situation where this Government may pass a flagship piece of criminal justice legislation without including any specific plans to improve the investigation and prosecution of rape and serious assaults. This issue needs to be taken forward in partnership with the police and finally recognised as a priority. I look forward to what I hope will be a positive response from the Minister and beg to move.

[Baroness Jones of Moulsecoomb (GP)]

I reassure noble Lords that I will not be speaking on every amendment today, but I regret that all those that we have discussed so far, including this one, will not go to a vote. That is a real shame, because they are so sensible.

I congratulate the noble Lord, Lord Ponsonby, on tabling the amendment to which I have put my name. I support all the amendments in this group, not just Amendment 104C. The criminal justice system is hugely distrusted by survivors of sexual violence, based on the way they are treated when they come forward to make a complaint. There have been some important steps forward over the years, but trust is still far lower than it needs to be for survivors to come forward, go through the whole criminal justice system and have their lives pored over. Granting the right to complainants to be represented by a lawyer in an appeal to adduce evidence on questions of sexual conduct would be an important leap forward. The complainant is seen as a neutral third party with no particular legal rights, rather than someone deserving legal protection and representation, and this really has to change.

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I hope that I have responded on each of the amendments. Although I appreciate that a few points of difference between us will remain, I hope that the noble Lord will none the less be able to withdraw the amendment.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Lord for his assurances, and I beg leave to withdraw my amendment.

Amendment 104B withdrawn.

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Moved by

[Lord Ponsonby of Shulbrede]

104E: After Clause 172, insert the following new Clause—
“Offence of requiring or accepting sexual relations as a condition of accommodation
(1) It is an offence for a person (A) to require or accept from a person (B) sexual relations as a condition of access to or retention of accommodation or related services or transactions.(2) For the purposes of this section, A is—(a) a provider of accommodation,(b) an employee of a provider of accommodation,(c) an agent of a provider of accommodation, or(d) a contractor of a provider of accommodation.(3) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a maximum of 7 years.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group of amendments seeks to introduce new offences to make it illegal to have sex-for-rental accommodation. Currently, sex for rent was affirmed as a sexual offence in 2017 by the Ministry of Justice. Under the current legislation, an individual can be prosecuted for such a crime only under Section 52 of the Sexual Offences Act 2003—causing or inciting prostitution for gain. Only one person has been charged in a sex-for-rent case, and only as recently as a year ago.

The law itself has made it extremely difficult for sex-for-rent victims to seek justice. According to the law, victims must be legally defined as prostitutes, which is a huge deterrent in their access to justice. Another reason why this scandal continues virtually unchecked is that landlords are able to advertise sex for rent in their properties very easily. Landlords still post on sites such as Craigslist, where they talk about free house shares, room shares or even bed shares, and even some of the postings are extremely explicit about the requirement of sex for rent.

Amendment 104E would create a new offence of requiring or accepting sexual relations as a condition of rental accommodation, with a maximum sentence if convicted of seven years. Amendment 104F would create a new offence of arranging or facilitating the requirement or acceptance of sexual relations as a condition of rental accommodation, with a maximum fine of £50,000. That would of course be for those who allow the advertisements on their websites or allow any other form of this type of advertising.

Amendment 114A would put a requirement on the Secretary of State to establish a review into the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under Section 61 of the Sexual Offences Act 2003. This is a separate point, and it is something that has had a lot of publicity recently. What is not known is how much of that has been drummed up by the press, if I can put it like that, and how much is real. Nevertheless, the concern that has been raised is certainly real, and this amendment would put an obligation on the Government to get to the bottom of the matter and see whether it is a real problem that nightclubs and other people need to take action to stamp out.

Amendment 114B would put a requirement on the Secretary of State to establish a review of the offence of exposure under Section 66 of the Sexual Offences Act. Again, this is a separate and wider issue, which has ramifications regarding violence against women and girls and the question of whether it is a step along that road. It is right that it should be viewed in its wider context. As a sitting magistrate I see these cases fairly often; they are highly variable and the perpetrators range completely across the social spectrum. Nevertheless, the impact on the women and girls who are subject to these exposures is real, and I am sure there is sufficient data to see whether people who expose themselves progress to much more serious offences.

However, it is fair to say that the main purpose of this group of amendments is to put in new offences of illegalising sex for rent. I beg to move.

[Earl Attlee (Con)]

My Lords, I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for tabling Amendments 104E and 104F, because this gives me an opportunity to speak to them as I was not available at an earlier stage.

My first point is that sex for rent is invariably immoral and abhorrent and frequently evil, so I agree with the sentiments expressed by the noble Lord today and by noble Lords the last time we debated it. Unfortunately, I share the concerns expressed by the noble Lord, Lord Marks, in Committee on 22 November last year. Like the noble Lord, I am worried about the unintended consequences. He asked:

“What about the landlady of the bed and breakfast who seduces the potential paying guest and offers him or her a free room in return?”—[Official Report, 22/11/21; col. 684.]


The problem is not so much in the drafting but in the way that the amendment works. For instance, I worry about the use of the word “provider”. Does the proposed offence catch a young, affluent male student who has a spare bed or room to offer a female student, partially or wholly in exchange for sex or an intimate relationship?

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who have taken part in this debate. It has been quite quick but focused on the issues raised in this group of amendments.

The noble Earl, Lord Attlee, raised some reservations and talked about the nature of the victims. I advise the noble Earl to read very carefully what my noble friend Lady Kennedy said when she itemised the victims of this offence. It is overwhelmingly women who are victims of this offence. The numbers are very large and it has been going on for years. My noble friend is an expert on this matter and I think his remarks were misplaced, if I can put it like that.

[Earl Attlee (Con)]

My Lords, I have no issue with what the noble Lord said, nor with what the noble Baroness said. This problem has been going on for a very long time and large numbers are involved; I do not disagree with that.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I move on to the comments of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope. I am grateful for their support. They raised drafting issues, if I can put it like that, around the word “arranging” in Amendment 104F, and the noble and learned Lord, Lord Hope, questioned the use of the word “publisher”—although my noble friend Lady Kennedy said that she regards “publisher” as including online platforms. Nevertheless, I am not stuck with the specific wording in front of us. I think the purpose of the amendments is perfectly clear, and I am glad that both the noble Lord and the noble and learned Lord are nodding their heads.

I was disappointed with the answer given by the Minister. She made it clear that the Government take these issues seriously and said that they are constantly reviewing the law on these matters, but here is an opportunity to change it right now. There has been a very effective campaign on this issue, and it would have been an opportunity for the Government to change their approach. So I think that we on this side of the House should force the issue and test the opinion of the House, just to see the strength of opinion on this long-standing problem.

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Moved by

[Lord Ponsonby of Shulbrede]

104F: After Clause 172, insert the following new Clause—
“Offence of arranging or facilitating the requirement or acceptance of sexual relations as a condition of accommodation
(1) It is an offence for a person, who may in particular be a publisher, to arrange or facilitate an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation).(2) A person commits an offence if they intend to arrange or know that their actions would facilitate an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation).(3) A publisher commits an offence if they—(a) know they are arranging or facilitating an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation),(b) reasonably should know their actions would enable the arrangement of or facilitate an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation), or(c) were informed that their actions had enabled the arrangement of or facilitated an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation) and failed to take remedial action within a reasonable time.(4) A person found guilty of an offence under this section is liable on conviction on indictment to a fine of £50,000.”

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[Baroness Kennedy of Cradley (Non-Afl)]

My Lords, men who seduced girls between the ages of 13 and 16 before 1 May 2004 are effectively immune from prosecution because of a procedural time limit. The law therefore stops historic child abusers from being held accountable for their actions; the law denies justice to women in England and Wales who were groomed for sex as teenage girls before 1 May 2004 as they cannot bring charges against the people who took advantage of them. Let me take a minute to explain why.

Abusers are immune from prosecution because sexual offences committed before 1 May 2004 must be prosecuted under the Sexual Offences Act 1956. Under that Act, the applicable offence is unlawful sexual intercourse, as outlined in Section 6. In the 1956 Act, and there is a time limit of one year from the alleged commission of the offence under Section 6. Proceedings must therefore be instituted within a year from then. This time limit is clear and unambiguous and can be found in paragraph 10 of Schedule 2 to the Act.

Amendment 104FC would remove the time limit and therefore remove the legal barrier which protects abusers of underage girls from prosecution. Some may read this speech and question why I am using the phraseology “girl” and not “child”. This is because, remarkably, the time limit applies only to girls; if the victim were a boy, it would be different, as historical cases of sexual intercourse between men and boys under 16 can still be prosecuted. How can the law deny justice and discriminate in this way, and this House not seek to put it right?

The time limit has to be removed, especially as no such time limit applies to offences of this nature committed after 1 May 2004. If a man had sexual intercourse with a girl aged between 13 and 16 after 1 May 2004, he can be prosecuted for the new offence of sexual activity with a child. That was created by the Sexual Offences Act 2003, where no equivalent time limit is applied. This time limit is therefore a procedural anomaly that clearly stands in the way of justice.

This problem had been going on for some time, since before May 2004, but prosecutors were for a long time able to evade the time limit. Instead of charging for underage sexual intercourse, which could not be done if the offence was discovered or prosecuted too late, they would charge for indecent assault in relation to the same underage sexual intercourse. But in 2004, when this House also acted in its judicial capacity, it considered an appeal by a Mr J, who argued that his charge of indecent assault was a device to circumvent the time limit and was an abuse of the court—and the House accepted his argument. Since that time, therefore, men who procured sexual intercourse from vulnerable and impressionable girls before 1 May 2004 have been immune from prosecution.

Some may say that this may be an unnecessary change and ask how many people it would actually affect—but, as the CPS does not keep a record of how many cases are discounted at an early stage because of issues like time limits, there is no data for us to know whether this is affecting one woman, 1,000 women or more. What we do know is that, sadly, historic sexual abuse comes to light all too frequently. We know that girls can be threatened into silence for long periods of time. It is well known that very many girls, victimised in these ways, only recognise themselves as victims, or only have the confidence to go to the police much later than one year afterwards, or something else comes to light that encourages them to bravely break their silence. There must be hundreds of thousands of cases where men seduced a girl aged between 13 and 16 before 1 May 2004, but those victims for various reasons never told the police during the year.

I do not believe that we should need much evidence of the extent of the problem to justify the removal of this arbitrary time limit and allow justice to be done. Some may argue that you cannot retrospectively make law in this way, but applying that argument to this amendment I believe is incorrect. It is true that you cannot retrospectively create new offences and punish people for them—but here, the relevant offence always existed. This amendment would just change the rules relating to trial for those offences. It has always been understood that rules of evidence and procedure can be amended and have immediate effect in subsequent trials, regardless of when the acts complained of actually happened. Article 7 of the European Convention on Human Rights, as I understand it, applies to the definition of offences and defences; it does not apply to matters of procedure, including time limits.

Finally, some may argue that this amendment risks exposing those who were prosecuted and successfully used the time limit to avoid prosecution to further conviction. That is not my intention with this amendment, which is why subsection (2) of my proposed new clause states:

“Nothing in this section permits the trial of a person who has already been convicted of an offence relating to the sexual intercourse in question.”


I am aware that that this is a complex matter, and I thank Dr Jonathan Rogers, assistant professor in criminal justice at Cambridge University, who has been arguing for a change in the law to address this issue for many years. I thank him for all his advice and support on this issue. I also thank the noble Lord, Lord Wolfson of Tredegar, for meeting Dr Rogers and me last week to discuss this matter. We are conscious that our meeting lasted twice as long as expected, so I thank him for the time that he gave and for the further discussions that were facilitated between Dr Rogers and the Civil Service team. However, my view remains that this issue needs resolving; there are still women who are denied justice for what happened to them in their early teenage years and men who can be fairly tried. This time limit is wrong —the amendment would remove it and, in doing so, close a loophole which protects sex offenders. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I support my noble friend, who is quite right in everything she has said. Sexual abuse and rape can quite often take decades to come to light. The anomaly, which she has outlined very clearly, is within the power of the Government to put right, and I urge the Minister to do so.

[Lord Wolfson of Tredegar (Con)]

My Lords, before I turn to this amendment, I begin with an apology. I made an incorrect statement in an earlier group. On Amendment 104B, I said that in September 2019, we rolled Section 28 out to a further four courts” and then I identified them. I should have said “September 2021”, not “September 2019”. I have already sent a written note to the noble Lord, Lord Ponsonby of Shulbrede, correcting the point, but I take this opportunity to correct the record and apologise to the House for that error.

I thank the noble Baroness, Lady Kennedy of Cradley, for tabling the amendment, which is aimed at a narrow but important category of cases that remain subject to a highly unusual time limit—we do not usually have time limits in our criminal law—and I thank her for the very useful discussions that we have been able to have on this topic. The amendment affects offences under Section 6 of the Sexual Offences Act 1956 of unlawful but consensual sexual intercourse with a girl aged 13 to 15 that were committed before 1 May 2004, when the Sexual Offences Act 2003 came into force and replaced the 1956 Act. It was a requirement under the earlier statute that a prosecution for this under Section 6 had to be commenced within 12 months of the offence. There is no time limit for the offences under the 2003 Act that have been chargeable since 1 May 2004, but when the offence was committed before that date, the 12-month limit for commencing a prosecution continued to apply. That, of course, has long since expired.

As my noble and learned friend Lord Stewart of Dirleton explained in Committee, Parliament usually acts on the principle of non-retroactivity. Although removing the time limit in circumstances where a prosecution was already time-barred would not have amounted to substantive retroactivity in the sense of criminalising conduct that was not previously unlawful, it still would have exposed a person to criminal liability where there had not been any before.

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[Lord Pannick (CB)]

My Lords, the noble Lords, Lord Beith and Lord Paddick, make a very strong case. Clause 46 addresses a serious mischief: abuse of trust to gain sexual advantage. Like them, I cannot understand why this is to be addressed only in the context of sport and religion and not in the context of dance, drama and music.

I have one other question for the Minister. I also cannot understand why sport is only to be covered in relation to games in which physical skill is the predominant factor. What if there is an abuse of trust by someone who is training young people in chess or bridge? Why is it not equally objectionable if they take sexual advantage of those young people? Why should that not be included within the scope of the offence?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Lord, Lord Paddick, for giving those very good and relevant examples of abuses of trust in dance, music and drama. I remember the points that the Minister made when we had this debate in Committee: he did indeed ask for examples, and I thank the noble Lord for providing them.

Surely, the similarity in everything that we are talking about is the nature of the relationship. It is a trusting relationship where a lot of time may well be spent alone with the young person, and it is open to abuse. The Minister had other arguments about why dance, music and drama should not be included, and I would be interested to hear how he rehearses them, given that there is unanimity in the views expressed in today’s debate. I do not know whether the noble Lord will press his amendment to a vote—I think probably not—nevertheless, I will listen to the Minister’s answer.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful to the noble Lord, Lord Beith, for again raising this matter for debate. I am also grateful to the noble Baroness, Lady Jones of Moulsecoomb, who is not in her place but who gave up a lot of time last week to discuss this with me and the noble Lord.

I start by clarifying what we mean by a “position of trust” in this context—there may have been some confusion in Committee. The position of trust offences that we are discussing are set out in Sections 16 to 19 of the Sexual Offences Act 2003. They are necessarily narrow in scope and were never intended to apply in all scenarios in which a person might have contact with, authority over or a supervisory role over another person, even those aged under 18. Rather, these offences were created to tackle potentially abusive relationships between those under 18 and adults who were in specific positions of trust.

The existing positions of trust, as set out in Section 21 of the 2003 Act, were so drafted in an attempt to capture situations where the young person had a high level of dependency on the adult involved, often combined with some vulnerability. These included those caring for a young person in a residential care home, hospital, school or educational institution. In these contexts, the power dynamic is such that Parliament considered that any sexual activity should be criminalised.

The law was created, therefore, in recognition of the risk inherent in these types of position and the power the individual could have over the young person, which could impact on and affect the young person’s ability to consent. As such, the offences are committed as soon as the adult in one of these specified positions engages in sexual activity with the young person they are caring for; there is no need to prove any abuse or actual manipulation.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we add our thanks to the Minister to those of the noble Lord, Lord Russell of Liverpool, for his approach to changing the time limit for common assault prosecutions in the context of domestic abuse, and for engaging with us on this and other issues over the last few weeks.

It is clearly a sensible compromise for the six-month time limit to start from the first formal step in criminal proceedings of taking a witness statement or a formal recorded interview. We understand the reason for retaining the overall time limit of two years. It is a compromise in these cases between the need for finality and recognition that it frequently takes some time for victims—generally women in these cases—to report assaults formally, even though, as the noble Lord said, they may have some sort of informal interaction with the police at an earlier stage. We warmly support this amendment and thank the Government for coming to this view.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I was sitting in the City of Westminster magistrates’ court yesterday with our Bench chairman, Jane Smith, who was aware of this government concession. We had a very constructive discussion about how welcome it was. In Westminster magistrates’ court we have a specialist DA court, which is not that common among magistrates’ courts. While the noble Lord, Lord Russell, described the problem cleverly—in the best sense; I mean that as I say it—as being hidden in plain sight, it is a problem that we see regularly in that court. It shows that when the Government listen and move quickly, that does get wider recognition. This was certainly recognised and appreciated by my Bench chairman.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful for the support that the amendment has received across the House. This ought to be a cross-party issue and I am very pleased that it has been. I repeat my thanks to all those who worked with me and my ministerial colleagues to get this amendment before the House this evening. As it is a cross-party matter, it is quite right for me also to thank Yvette Cooper in the other place, who did a lot of work on this issue. Sometimes parties do not matter; it is about the work that we do. I thank her for getting the ball rolling on this very important issue.

We will keep the matter under review, as we do with all legislation, and certainly for something such as this. Again, I do not want to take the House’s time, although this is an important topic. I instead invite the House to join me in supporting the amendment.