I beg to move amendment No. 35, in

clause 1, page 1, line 6, after 'vagina', insert 'or'.

With this it will be convenient to discuss the following:

Amendment No. 34, in

clause 1, page 1, line 6, leave out 'or mouth'.

The clause is arguably the most important in the Bill and would, when taken together with clauses 76 and 77, rewrite the law on rape in various ways, including in respect of the tests that should be applied when deciding whether somebody is guilty of rape.

I begin by considering what is rape—indeed, we must start with that when considering subsection (1). I do not wish to enter into detailed discussion at this stage, but I need some reassurance from the Government on their approach to the provision. My amendments, which are linked, would remove the word ''mouth''. A feature of the proposed legislation is that the definition of rape is being widened to include penetration of the mouth by the penis. We must pause for a moment before simply rubber-stamping that measure and consider whether we are doing the right thing. Having said that to the Minister, however, I do not intend to force the amendment to a vote.

The definition of rape has changed considerably in recent years. In the past, rape was vaginal penetration—and that was that. Then Parliament decided to get rid of the offence of buggery and replace that expression with rape. We barristers were a little bit surprised when Parliament did that: my experience of cases of that kind is that juries and individuals differentiated clearly between those two offences, both in the terminology they used to describe what happened and—this is the key point—how they viewed the gravity of such offences. That is ancient history and I do not wish to re-open the matter. However, it has now been decided that it is right to extend the definition of rape further to include penetration of the mouth.

My concern is practical and relates to sentencing. I have read some of the guidelines on rape cases. It is quite apparent already that, despite the merging of rape and buggery into one offence, the approach of the courts is likely to be substantially different, depending on which offence they are dealing with. I suspect that that the same will happen after we extend the definition of rape to include penetration of the mouth. I am interested to hear the views of Committee members on the following question: are we being sensible about this, or ought there to be a separate offence? I have not tried to draft a separate offence during this Committee, although that would be easy. Perhaps we should think about doing that, rather

than just trying to roll everything into one generic description.

Is the hon. Gentleman not answering his own question? I strongly suggest that we do not revisit the old offences. Is not Parliament trying to give a message to the courts that whatever form of unlawful sexual activity takes place, it considers the gravity to be the same so there should be a similarity of sentencing? If a court wants to take a different view of the facts of any individual case, that is for the court to decide. We as a Parliament should send out the message that the courts should be under no illusion that we do not consider all these acts to have similar gravity.

The hon. Gentleman raises an interesting point. That may be Parliament's intention, but I have already seen some of the discussion papers that have been produced about sentencing and my impression—the Minister may be able to enlighten us further—is that, far from the judiciary treating the offences generically and as having similar gravity, guidelines will emerge suggesting that, on the contrary, certain types of penetration are more serious and should be viewed more seriously than others.

Clearly, one merit of the Bill as drafted is that adding a maximum sentence of imprisonment for life provides maximum flexibility. I do not necessarily suggest that a separate offence of penetration of the mouth should have a different sentence—although one could look at that. However, the Committee should understand that blanket statements are being made about offences of penetration being classified as equally vile and reprehensible, which of course they are, and about them having equivalent consequences. I do not believe that that is what will happen. It was because I wanted that to be highlighted that I moved this amendment. It is something that we should at least have been seen to consider before the Bill goes on to the statute book.

My hon. Friend is making an interesting and good argument. He will recall that in April this year the chairman of the Criminal Bar Association, Mr. Peter Rook, appeared before the Home Affairs Committee. He and the CBA thought that so far as the forced oral sex offence was concerned, although it was an extremely serious matter, it should not necessarily come within the definition of rape. He was worried that if it were included in that definition, some juries might be less inclined to convict someone of rape.

I am grateful to my hon. Friend because he takes me on to a key point. If Parliament states something in legislation as being something that members of the public do not view it as being, we will end up with a situation where there may be a reluctance to convict. Penetration of the mouth is a horrible thing and forced penetration of the mouth is revolting, but most people in my experience tend to view that as something quite different in nature and quality to rape, as we understand it on the statute book. I am anxious to ensure that the Committee is seen to have considered that important issue, and not

simply to have said, ''That is what we want, so let's get on with it.''

The Home Affairs Committee concluded that it had no difficulty with the proposal to extend the definition of rape to include forced oral sex, so it clearly was not convinced by whatever argument Mr. Rook put forward. What is the justification, for which the hon. Gentleman is groping, for a separate offence?

I think that the point was made by Mr. Rook, although I hasten to say that it was not at his prompting, nor with careful consideration of what he said to the Select Committee—although I have read that—that I tabled the amendment. My experience as a barrister is that forced oral sex is regarded as being different from rape. It is as simple as that. If that is the case, there may be a risk, and I think Mr. Rook highlighted it, that juries faced with a case of forced oral sex, especially a case where there are borderline issues about consent, for instance—the hon. and learned Lady and I know the difficulties of the issue from our previous correspondence—may be reluctant to convict for what is a very serious offence, because it would not be viewed as the offence charged: rape.

I may be worrying about nothing, and if the hon. and learned Lady wishes to persuade me of that, I welcome it. However, I did not want the matter simply to go through with everybody nodding approvingly and saying that it is a very good idea, when some interesting, possibly beneficial but possibly difficult consequences may flow from extending the definition of rape to something that certainly would not have been considered such in the past, even by the ordinary terminology of English grammar. We need to be careful about that.

I look forward to hearing from the Minister, who has this opportunity to explain why the Government came to their decision. I would like to hear a little about the policy background, about why it was felt desirable to put forced oral sex with the other two possible offences of rape, namely vaginal and anal penetration, and about the benefits that the Government think will flow from the change. If the Minister can persuade me on those points, we can move on to other things.

The hon. Gentleman makes some interesting points. However, his argument about English terminology and its grammar fails because the ordinary man or woman in the street probably thinks that Bill Clinton had sex with Monica Lewinsky, yet that was only oral sex, as far as we are aware. Presumably it is now accepted in the ordinary grammar of English terminology that oral sex is part of sex, and that oral penetration by force would therefore be rape.

The hon. Gentleman makes a good point. All sorts of people say all sorts of things nowadays. Children will say that something is ''wicked'' when they mean ''terrific''. I am alive to the fact that terminology may alter over time, and I dare say that in twenty years' time ''wicked'' will mean

wicked again, or will have altered its meaning. Of course I accept that. However, I am not persuaded—this is why I am interested in hearing the views of other Committee members—that people associate the word ''rape'' with forced oral sex. If I am right, there is potentially a problem.

As I say, if other Committee members and the Minister can reassure me on the point, and explain why the approach has been taken, so be it. However, I do not think that we should blithely assume that the matter is quite as simple as it appears on the Bill.

I am afraid that the Liberal Democrats will not support the amendments. The issue boils down to violation: the violation of a weak person, usually by a stronger one. In most cases, that means the violation of a woman by a man, but increasingly there are cases of gay rape, where forced oral penetration may be more of a feature.

We have to accept that culture changes, times change and public perceptions change. In the Home Affairs Committee report on the Sexual Offences Bill, Kathy Halloran, who spoke for the Rape Crisis Federation, said:

''The law adapts to cultural changes and we have a different perception now of rape in that rape can now be rape of a male and rape of a female, it can be vaginal and it can be anal. In my view, it [can] become . . . penile penetration of the mouth and it will be accepted just as anal penetration has been accepted as rape.''

I am thinking back to when the law was first introduced. It was some years after I was a teenager in the 70s that I realised that oral sex did not mean talking about sex.

In which we are all now engaged.

I may have been a naive teenager, but I suspect that most of my peers were not as sexually aware as teenagers are today. There is much greater awareness in society of the fact that forced oral sex happens, and most people probably find it hard to imagine a time when such things were not readily discussed in newspapers and alluded to in the media. That is the context in which we have to put the issue. There is greater awareness of the problem, and we have to regard violation in this way as being just as serious. By creating a lesser sort of offence, we would effectively be creating scapegoats. If rape by oral penetration is made a lesser offence, might it become more common? That is something else to consider.

Finally, I was most persuaded by the fact that all the experts involved with the Bill think that the measure would be a welcome move. I cannot really argue with bodies such as the Metropolitan police and the many rape crisis organisations that support the provision, so we will support not the amendment but the Bill as it stands.

I very much welcome the amendment and the motive behind it. As the hon. Member for Beaconsfield said, it allows us to debate the issue and to hear the views of colleagues on the Committee.

I think we are all aware that, under current legislation, forced oral sex is charged as indecent assault, with a maximum penalty of 10 years. As has been said, clauses 1 and 3 redefine the physical act of rape by including non-consensual penile penetration of the mouth within the scope of that offence. That change is also reflected in a number of other offences in the Bill that make a distinction in the maximum penalty available where the sexual activity involves penetrative sex. In those cases, the proposition is that oral penetration by the penis will be treated as being as serious as intercourse. The issue was debated extensively in the House of Lords, and following debate there, the amendments were withdrawn.

In response to what the hon. Gentleman said, I first point to the weight of persuasive evidence submitted during the extensive consultation period to the sexual offences review, particularly by victims and victim support groups. That is one of the primary reasons why we have decided to include forced oral sex in the definition of rape. The great weight of that evidence was that, from the perspective of victims, forced penile penetration of the mouth can be just as abhorrent, demeaning and traumatising as other forms of penile penetration and is as psychologically harmful as vaginal and anal rape, and in some instances even more so.

It is not unusual for women and children who have been violated in this way to have long-term difficulties with eating and drinking or visiting the dentist, and that often leads to poor health, as well as having a psychological impact.

The argument has also been put that the general public—and perhaps more important, juries—may not accept that forced oral penetration amounts to rape. As has been acknowledged, we previously extended the definition of rape to include anal penetration. Looking back on those debates, we see that many of the arguments we have heard today on whether forced oral sex should be included were also made in relation to the proposal to include anal penetration. It was argued that broadening the scope of the offence from vaginal rape to include anal penetration would result in juries being reluctant to convict or the giving of lesser sentences, but there is no evidence that that has happened.

I cannot give the statistics on convictions and sentencing that the hon. Member for Beaconsfield asked for because the figures are no longer broken down into vaginal and anal penetration. The evidence suggests that judges and juries examine the individual circumstances of each case, which is exactly what they are supposed to do. Whether a case involves vaginal or anal penetration, they base their decisions on conviction and sentencing on all the circumstances, which is what the law currently allows them to do.

Everyone clearly understands that rape is an offence of non-consensual penile penetration committed by men on women and men. Society at large has embraced the change to the definition, which occurred some time ago. Taking into account the testimony of victims and victim support groups on the impact of forced oral sex, we can see no reason why juries, judges and indeed the public will not also

embrace that change—there is no evidence that they have not already done so. My hon. Friend the Member for Rhondda (Mr. Bryant) made a very apposite point in that regard.

The evidence suggests that the public and juries are open to our doing what we are doing, which is updating the definition of rape in line with the direction of public opinion. We are not anticipating public opinion, but we are introducing a definition that makes sense and builds on the evidence that we have received from victims and victim support groups. It therefore makes good sense for all forms of consensual penile penetration to be grouped together within the offence of rape.

Even if Opposition Members pressed for the definition of a separate offence in a separate clause, we would certainly not want the penalty for forced oral sex to be anything other than the same as the proposed penalty for vaginal or anal penetration. The argument made by the hon. Member for Beaconsfield supports that point. Juries and judges need the maximum possible flexibility in deciding the appropriate disposal for a particular person convicted of rape, whether it is anal penetration, vaginal penetration or forced oral sex, in order to ensure that they can take all circumstances into account. Broadening the scope of the offence of rape will ensure that the legislation properly reflects the seriousness of forced oral penetration and its potential effect on individual victims.

For those reasons, I ask the hon. Gentleman to consider not pressing the amendment. If he were to do so, we would have to resist it.

I reassure the Minister that I have no intention of pressing the amendment to the vote. I am grateful for her explanation of the Government's reasoning and, on balance, her argument is correct. The public will accept the definition of rape as penile penetration, even if, as I have previously indicated, they do not currently think that that includes oral penetration.

Earlier, I acknowledged that times change, and I accept that oral penetration is a serious matter. It is perfectly proper that Parliament should emphasise that seriousness by imposing a maximum sentence of life imprisonment, and I was not suggesting that we should have anything else. If someone behaves in that way it is likely that they are capable of committing other offences within the definition of rape in any event. I hope that the new definition will stand the test of time and allow for flexibility in dealing with very unpleasant offences.

Only one of my questions was not answered by the Minister—perhaps she was not in a position to do so—but I mention it simply to place it on the record again. I think that it is likely that there will be guidelines that differentiate between the different types of penetration. If Committee members do not like that, they should be made aware of it before we reach the end of clause 1. I strongly suspect that that will be the case.

I do not anticipate that the judiciary will classify some types of penetration as being more serious than

others, but I suspect that a degree of hierarchy will develop in the consideration of the different types of penetration. If Parliament does not want that, perhaps we should express our views on the subject now so that the judiciary know about it. I say that it is inevitable and I am happy to leave it to the judges to decide on the guidelines and rules to be applied in individual cases. With those remarks, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 36, in

clause 1, page 1, line 9, leave out 'reasonably'.

With this it will be convenient to discuss the following:

Amendment No. 25, in

clause 1, page 1, line 11, after 'circumstances', insert

'of the case and circumstances and characteristics of A'.

Amendment No. 29, in

clause 1, page 1, line 11, after 'including', insert

'A's age, mental development, maturity, and'.

Amendment No. 26, in

clause 3, page 10, line 10, after 'circumstances' insert

'of the case and the circumstances and characteristics of A'.

Amendment No. 30, in

clause 3, page 2, line 10, after 'including', insert

'A's age, mental development, maturity, and'.

Amendment No. 27, in

clause 4, page 2, line 22, after 'circumstances' insert

'of the case and the circumstances and characteristics of A'.

Amendment No. 31, in

clause 4, page 2, line 22, after 'including', insert

'A's age, mental development, maturity, and'.

Amendment No. 28, in

clause 5, page 2, line 38, after 'circumstances' insert

'of the case and the circumstances and characteristics of A'.

Amendment No. 32, in

clause 5, page 2, line 38, after 'including', insert

'A's age, mental development, maturity, and'.

I suppose this is the cat-among-the-pigeons amendment. The next element of clause 1 deals with a change that will be brought about—when linked to clauses 76 and 77—concerning whether there is to be a subjective or objective test of reasonableness of consent in rape cases. I thought that asking to remove the word ''reasonably'' in clause 1(1)(c) would trigger a debate on that subject. If one wished to return to the old test, one would have to do more than that, but the amendment is a device to enable the Committee to consider that issue, and no more than that.

There are further amendments, which I shall leave for my hon. Friend the Member for Woking (Mr. Malins) to expand upon, that would provide an intermediate stage between a subjective and objective test. That would provide some mitigation to the change to an objective test.

This is a major issue. We have always taken the view in this country that a person is guilty only if he has a guilty mind—although there are some offences that do not fall into that category. If someone accused of an offence of rape reasonably believes that another person has consented, then—however unreasonable that belief might appear to someone else—he is not guilty if someone decides that he did reasonably hold that belief. That has given rise to enormous problems. Those of us who attended the presentation on Operation Sapphire last night witnessed an exposé from the Metropolitan police. There is a widespread belief that there are many instances in which defendants are being acquitted as a result of the jury's difficulties relating to the issue.

Oddly enough, I do not subscribe to that latter point. I am wholly unconvinced that the change from a subjective to an objective test that we are to bring about will make a huge difference. I have always taken the view that juries, in deciding whether someone had a reasonable belief of consent, almost invariably apply their own standards. As a result, it is their view of what is reasonable or not that is likely to apply, notwithstanding anything that the judge may say by way of a direction. That said, however, there are powerful and persuasive arguments for moving to an objective test.

Vera Baird rose—

At the outset, before various people start jumping up and down—I do not put the hon. and learned Lady in that category—I want to make it clear that I am not about to argue that the test should not be changed.

I shall try not to jump too much. The hon. Gentleman talks about juries finding out about reasonable belief as if that were the rule already. He is getting himself in a knot. The proposal is to move from an honest belief. That honest belief is not necessarily reasonable and that is the problem. Many unreasonable beliefs are currently used as defences, although the jury cannot decide—the question is whether it is sure that the belief is not honest, and we are considering a change from that.

The hon. Gentleman talks about moving from a subjective to an objective test. That is not the case—any more than self-defence is an objective test. One has to consider whether the person behaved reasonably. Surely that is a subjective test, but a test to which one applies the question of reasonableness. So we are already talking about a very fair hybrid.

I may have chosen my opening words badly and I apologise.

No, you did not.

My hon. Friend kindly says that I did not. I always make a distinction between a subjective and an objective test, because, as a barrister, that is the terminology with which I was brought up. The hon. and learned Lady makes a further distinction and I do not entirely disagree with that, but I still do not think that the words ''subjective'' and ''objective'' are unhelpful. We are moving to a situation in which it

would be possible for a person to be convicted of the offence of rape even if a jury were to conclude that he had an honest belief that the person with whom he had sexual intercourse consented. The Bill does that on the basis that, although the belief may have been honest, it was not reasonable of the person to hold such a belief. That is a profound change to the law. My principal concern is that we should not just rubber-stamp that change in a tide of enthusiasm, without working the issue out in our own minds, and as a Committee, and being satisfied that it is desirable.

My analysis of the situation is that, curiously enough, I am not sure that there will be a huge difference, which is one of the reasons why I have not lost sleep over the matter. At the same time, I acknowledge that the change may be helpful. Moreover, it is proper for society and Parliament to say that, in dealing with intimate relationships—we are dealing with issues of consent rather than a rape in a back alley—it is reasonable to demand of someone that their beliefs are reasonable. I am pretty well sold on the concept, but I do not wish it simply to go through Committee with everyone nodding approvingly and without the opportunity to hear the Government's reasoning and the opinion of other Members.

We do not accept the amendment. Quite simply, if the amendment were agreed the Bill would read:

''A does not believe that B consents.''

There is a certain amount of difficulty because A could be fixed in a view for any number of reasons. As we all know, there are a wide variety of people, some of whom we would regard as more reasonable than others. In reality, it may be that a jury would take account of circumstances and decide what was reasonable and what was not. It would do that almost automatically. However, it is not helpful to remove the premise of reasonableness, because we all live in a framework of acceptability.

The hon. Gentleman raised the point that different juries may come to different views, but unfortunately that happens anyway, however hard we try to make the legislation clear. I strongly believe that this measure should stay. The arguments were debated at interminable length in the Lords and I do not intend to repeat them here. There are other matters to move on to later that are much more important to debate. We do not support the amendment.

I wish to speak to amendments Nos. 25 and 29. Amendments Nos. 26, 30, 27, 31, 28 and 32 are, in a sense, consequential amendments that apply the principles set out in amendments Nos. 25 and 29 to subsequent clauses.

I am considering the issue of reasonable belief and the wording in clause 1 that says:

''Whether a belief is reasonable is to be determined having regard to all the circumstances''.

Amendment No. 25 seeks to widen that slightly to include all the circumstances

''of the case and circumstances and characteristics of A'',

who is the defendant. Amendment No. 29 would add

the defendant's ''age, mental development'' and ''maturity'' to those factors that come into play when examining reasonableness.

It is well known that the current law is falling into disrepute and is not really sensible. Under it, an honest belief that the other party consented, even if it is mistaken, is enough to get an acquittal. There was the quite appalling case of Morgan in 1975. That subjective test did not require the defendant's mistaken belief to be objectively reasonable. There were, and are, good arguments for changing that.

Is there not a disjunction between the hon. Gentleman and the hon. Member for Beaconsfield? Opening the debate, after the intervention of my hon. and learned Friend the Member for Redcar (Vera Baird), the hon. Member for Beaconsfield accepted the hybrid characterisation that my hon. and learned Friend suggested, which deals with this point. The characteristics do not need to be set out because the jury applies itself to the defendant in front of it.

I hear what the hon. Gentleman says, but the truth is that there is nothing between my hon. Friend the Member for Beaconsfield and myself on such matters. What we are trying to do, which is why we will welcome contributions from other Committee members, is to spend a little time this morning on an important clause. Had we not tabled probing amendments to get a debate going, this debate would not have got under way. We hope that it will be useful. The hon. Gentleman and I have served on Committees before together, and I can tell him that I will not press my amendments to a vote, but I want to float them and to put before the Committee one or two interesting parallels about subjective and objective tests in criminal law, just to see whether that advances us any further. If it does, that is to the good. If it does not, it will be a disappointment, but we shall see how we go.

Yes, the old law fell into disrepute, and I believe that the way in which this Bill developed in the House of Lords was sensible in coming to the definition of reasonableness now before us. But this is not an easy subject. To illustrate that, my hon. Friend was right to say that, as often as not, a jury, consisting of 12 straightforward citizens, will take an overall view about the case before it, and instinctively reach a verdict on what it has seen and heard, and may find complicated directions about subjective, objective, reasonable and unreasonable slightly difficult. I hope that our conversations will bring some realism to the matter and reflect throughout that we understand that a jury will make its own instinctive decision.

Would the hon. Gentleman not accept that a jury would make the decision based on the information presented to it? One problem with his amendments is that they make it possible to trail the victim's entire history and personal circumstances through the courts. Previous legislation has specifically sought to prevent that, as it is one of the big barriers to women pursuing prosecutions. However, the problem is clearly set out in the conditions included in his amendments.

The hon. Lady makes a good point. If my amendments were accepted there would be some difficulties. Mr. Peter Rook illustrated to the Home Affairs Committee the difficult territory in which we are operating when he was asked about the existing test, as far as the law is concerned, on belief. He said:

''I am not sure I can answer . . . There is a general feeling that it should not be an entirely subjective test. Criminal lawyers are divided on the issue. The Criminal Bar Association, however, is firmly in favour of changing from the rule in Morgan to not a wholly objective test, but what one might call a subjective objective test.''

We are moving into interesting territory, as juries, on listening to that sentence, might begin to scratch their heads. Mr. Rook continued:

''It seems to us that, if you have a wholly objective test, then there is a great risk if you have it judged by some standard external for the defendant, the reasonable man, that in a case, say, where the defendant has a learning difficulty or is simply very young, if they are judged by some objective reasonable man standard, then there may be a risk of injustice in that sort of case.''

I want to focus on the difference, in the simplest possible way, between a subjective and objective test. With a subjective test, one is examining what one defendant believes, and that takes us back to the Morgan law. With an objective test, one judges the defendant by the standards of a reasonable outsider.

There are some interesting parallels in criminal law. The offence of theft concerns dishonestly appropriating property belonging to another with the intention permanently of depriving them of it. From time to time, there are difficulties in court over ''dishonestly'', and judges are encouraged to tell the jury that it is an ordinary word with an ordinary meaning. In a theft or handling case, matters sometimes become more complicated and one has to consider the state of mind of the particular defendant, as opposed to what a reasonable person viewing the facts from the outside would judge to be the situation. In the law of theft, there is a balance between the subjective and objective tests of dishonesty.

I move to the real focus of my amendments by quoting the phrase:

''Whether a belief is reasonable is to be determined having regard to all the circumstances''.

The key words are,

''having regard to all the circumstances''.

What do they mean? Do they mean all the circumstances of the case? Do they include all the circumstances of the defendant? If that is a slightly clumsy phrase, would they include all the characteristics of the defendant? Might that phrase be broad enough to include the defendant's age? Might it be broad enough to include his mental development and his maturity? After all, a judge will have to direct a jury on the matter and someone, somewhere, will raise the issue in court. When the Judicial Studies Board issues a standard direction for judges to give to juries, someone will have to spend some time on the words ''all the circumstances''. I can picture the scene. A jury, having been directed, may send a note back to the judge asking if it could take into account any such factors when deciding whether the defendant reasonably believed that the complainant consented.

Is it not absolutely clear that because paragraph (c) refers to the individual defendant his nature would be entirely taken into account? He is the person at whom the jury is looking. Clause 1(1)(c) states:

''A does not reasonably believe that B consents.''

If that were a wholly objective test, it would say ''and a reasonable person would not have believed that B consented.'' It is clear that A is the person that we have to look at. Does the hon. Gentleman think that ''all the circumstances of the case'' ought to include all the circumstances of the complainant? She might have been drunk, or she might be mentally ill or have learning difficulties. Does he think that the definition should be wide enough to include that, and if so, why did he not mention it?

Let me take the first point of that intervention and say to the hon. and learned Lady that she has done the Committee a service. When Peter Rook appeared before the Home Affairs Select Committee, and in subsequent discussions, he said that he hoped that at the end of the day the circumstances or characteristics of the defendant such as I mentioned a moment ago would be part of the whole scene put before the jury. They should be properly taken into account.

I look to the Minister to say that ''all the circumstances of the case'' is a phrase that is wide rather than narrow. There is an interesting parallel with motoring law. If a defendant comes before the court asking for his licence not to be endorsed in relation to a specific offence, he can put forward special reasons, but those must relate to the offence and are not allowed to relate to the offender.

Will the hon. Gentleman comment on the fact that clause 76 sets out some of the circumstances? If the provisions referred to the characteristics of the complainant—the victim—that would make it possible to drag through the court her entire circumstances and characteristics, which might include how long her skirt was, where she was standing, the time of night and the belief—as in the Morgan case—concerning the sort of sex she liked. That was one of the main problems in that case. My understanding is that clause 76 sets out the circumstances, but would he accept that to include the characteristics of the woman would make it impossible for women to make complaints?

Yes. I am interested in the hon. Lady's intervention. In the intervention of the hon. and learned Member for Redcar, she tried to draw me to the proposition that we should be looking at the circumstances and characteristics of the complainant herself—if it is a lady complainant. That is difficult territory and I would be reluctant to be drawn down a road that involved examination of the complainant's characteristics. The hon. and learned Lady asked whether the length of a lady's skirt should be a factor taken into account. I regard that as an outrageous proposition, which has absolutely nothing to do with the matter, but I think that the hon. and learned Lady gave that example not because she thought that it was

a good idea but because it is illustrative of the sort of characteristic of a complainant that might in some circumstances be put forward. I do not think that that type of characteristic is at all relevant.

I have been slightly long-winded, for which I apologise, but the issue of reasonable belief is important. I am trying to get from the Government an acknowledgment that the phrase ''all the circumstances'' will in due course be construed sufficiently widely to ensure that defendants who are, perhaps, younger or more immature than others do not find themselves judged by a standard that they would fall below were it applied to them. Those who are perhaps not the reasonable man on the Clapham omnibus should not necessarily be judged according to that standard if their maturity, development or other factors involved in the case do not bring them up to it.

The question is the width of that phrase, how it will be construed in the courts and what progress has been made on the drafting of a model direction for judges to give. It is useful to discuss such matters, and I look forward to other contributions. The Committee will know that my hon. Friend the Member for Beaconsfield and I seek this morning to raise these issues only to create a situation in which they can be discussed. I am pleased to the extent that I have done that, and I hope that the debate proceeds.

I was reflecting during the debate on what I think is one of the core issues in the Bill: the reasonableness test. As hon. Members will know, that runs through several clauses.

When I was a Back Bencher some years ago and a member of the Youth Justice and Criminal Evidence Bill Committee, I sought, as did a number of hon. Members, to persuade the then Home Office Minister that we ought to look more fundamentally at the prevailing requirement on honest belief. That was because it was such an impediment to bringing sexual offence cases to court in the first place and, having got cases to court, to securing convictions in anything like that number of cases. Unfortunately we did not persuade the Minister that that was the right time to change what he regarded as a fundamental and long-standing cornerstone of criminal law in this country. I am really happy now to be a Minister on a Bill where we are agreeing—I think that there is broad consensus—that the provision on honest belief needs changing if we are to be fair to victims of sexual offences and to defendants in a more reasonable way, if I may use that term, than at present.

Hon. Members will know that this matter was the subject of much debate in the other place and that there was much helpful amendment. We come to the clause now with, I have to acknowledge, a much improved and clearer formulation than that which was in the Bill to start with. I have some sympathy with Opposition Members because I absolutely understand that they wish to raise the issue and to have the debate here, but we are in a sense much further on now and people are broadly content.

There is no doubt that, if the Bill were being debated in the state in which it was first published, there would be a much more vigorous

exchange of views. I should put on the record that I am extremely grateful for what was done in the other place because it improved this part of clause 1 immeasurably.

It certainly made it much clearer, and the intention of the clause, and of the reasonableness test in particular, can now more straightforwardly be realised. Although there were good intentions behind the original formulation, the practicality of applying it became apparent to everybody during the debate—but there is no point in rehearsing those arguments.

I shall begin by saying why the introduction of the reasonableness test is incredibly important. Leaving aside stranger rape, where lack of consent is generally easier to establish, it is commonly accepted that guilt in rape cases is often difficult to prove, especially where the parties are acquainted or, indeed, well acquainted. As my hon. and learned Friend the Member for Redcar clarified at the beginning of the debate, under existing legislation, even where the accused's belief that the complainant consented seems completely unreasonable given all the circumstances of the case, he must be acquitted if the jury is convinced that his mistaken belief was honestly held. We believe that that position is no longer acceptable. It undermines the faith that victims are prepared to place in the criminal justice system and discourages many of them from bringing cases to court.

The current position needs changing and is wrong for the following reasons. It implicitly authorises the assumption of consent regardless of the victim's views. It encourages people to stick to myths about sexual behaviour: for instance, that no really means yes. The mistaken belief argument can be deployed effectively in court even in situations where it has been easy to seek the consent of the victim, and the cost to the victim of the forced sexual activity is very high. As we heard from some of the police officers last night, it is easy to raise the defence of mistaken belief and consent, but hard for the prosecution to disprove it. I do not think that any Committee member believes that there is any justice in a situation whereby a person who has been raped, or subjected to other forced sexual activity, sees an assailant go free because of a claimed belief that society as a whole would have found unreasonable. That is an untenable position for us to perpetuate.

The effect of the reasonableness test that we propose is that, where the prosecution can prove that the sexual act took place, the victim did not consent and the defendant did not reasonably believe that sexual activity was consensual, he will be convicted of an offence. The probing amendment would remove that test and return us to the current position.

The way that the reasonableness test would work in practice is that the prosecution would be required to prove that the defendant did not have a reasonable belief in consent. That is supported by explanation of the criteria to be used to determine whether the defendant's belief in consent was reasonable in relation to the alleged offence. The jury is required to have regard to all the circumstances, including any steps the

defendant took to establish that the complainant did consent to the sexual activity.

We recognise that not every single sexual act has to be preceded by specific actions on the part of the defendant, especially where the defendant and the complainant are in a well-established sexual relationship. None the less, we think that it is still imperative that the defendant must reasonably believe that his partner consented to the sexual activity at the time in question. Doubt is most likely to arise in cases in which the defendant and the complainant are not in a well-established relationship and where it would be reasonable to expect the defendant to have taken steps to ensure consent. There is nothing unfair in requiring that a defendant should have acted reasonably in all circumstances to establish consent. We are anxious—indeed, I am sure that all hon. Members are anxious—to ensure that under the law those who are guilty of rape may be brought to justice and those who are innocent may be acquitted. Our proposals reflect the common understanding of how things should be and they will help jurors to consider the elements that amount to rape, so that they can reach fair, just decisions.

The hon. Member for Beaconsfield felt pessimistic about the test and, although I think that he supports it overall, said that it would not make much difference. I remind him that yesterday evening—I think he was there—we heard from some of the police officers involved in Operation Sapphire, who said that the reasonableness test was important. It will allow the police to interview suspects more comprehensively and it will allow a more direct investigation of the suspect's behaviour—not just the victim's.

The police said, ''Yes, we can ask those questions now, but the point is that the answers would be so much more relevant with the reasonableness test than they could ever be with the honest belief in consent.'' That point of view, which was expressed by police officers on the front line, who are trying hard to deal with such cases, bring them to court and get convictions in those cases that warrant them, is a powerful piece of evidence, which we must take seriously.

I listened carefully to what the police said—indeed, if I may say so, I hope that they are right—but I was slightly surprised by the way they said it. What they said about the current inhibitions on questioning was somewhat odd. First, in my experience inhibitions on questioning have not arisen from the existence of honest belief. Secondly, having participated in rape trials, I have always felt that whatever directions judges give to juries, they tend almost inevitably to apply their own standards. That is one of the reasons why I question whether the measure would make a huge difference to the conviction rate. We shall have to wait and see whether that happens.

On the police officers' main point, I did not take it to mean that their questioning was currently inhibited, but that such lines of questioning

are largely irrelevant, because the defence of mistaken but honest belief makes the answers to questions about suspects' behaviour largely irrelevant.

On the hon. Gentleman's point about juries, we shall have to wait and see. I am not as pessimistic as he is. It is much more common-sensual for a jury to make a judgment based on reasonableness, rather than having to accept, as is often the case at the moment, that someone's belief was honest, although wholly unreasonable in a common-sensical kind of judgment.

I do not share the pessimism of the hon. Member for Beaconsfield. It seems to me that people may now be pressed. They may say, ''Well, I believed that she was consenting,'' but the police officer would be able to ask, ''Who would regard that as reasonable? Look here, mate, even I don't think that is reasonable. Do you think that the ordinary person in the street would think—when she is protesting—that that is reasonable?'' There would not necessarily be fewer acquittals—although I hope that there would be—but one especially hopes that there would be more guilty pleas, which would save the woman having to go to court.

I am grateful to my hon. and learned Friend for that. She is correct.

The other amendments would require the jury to consider the personal circumstances and characteristics of the defendant in every case that came before court. Although I know that the hon. Member for Beaconsfield tabled the amendments to stimulate debate, they would attach particular relevance in statute to age, mental development and maturity of the defendant, and at least two of those would be particularly difficult to define in law. I understand his motivation in tabling the amendments, and the concern that the law must not result in a defendant being convicted and sentenced to life imprisonment when he genuinely believed that the other party consented. It might have been reasonable for a defendant with a particularly young mental age, for example, to hold such a belief.

I assure the hon. Gentleman and other members of the Committee that the existing formulation of the reasonableness test in the Bill allows such cases to be determined fairly, so that the jury can take into account such characteristics of the defendant as are relevant when deciding on reasonableness.

In a rape case, under clause 1, the prosecution must prove that penetration took place, that the complainant did not consent, and that the defendant did ''not reasonably believe'' that the complainant consented. Certainly, we accept that in some circumstances it is fair for the jury to take relevant characteristics of the defendant into account when considering whether he reasonably believed that the complainant consented. That is why the reasonableness test does not rule out that possibility. In appropriate cases, if a defendant is very young or has a mental disorder, the jury will take that into account when considering whether his belief in consent was reasonable.

Hon. Members may know that case law on the so-called ''reasonable man'' has held that characteristics

such as a particularly low IQ in a defendant may be relevant in any case, and there is no reason to suppose that that will not hold true for the ''reasonable belief'' test in the Bill. In each case, that will be for the jury to decide.

I do not think it is right or necessary to provide in statute for a defendant's characteristics always to be taken into account. That could appear seriously to undermine the reasonableness test, if reasonableness is to be judged against the whole of a defendant's character, including, for example, potentially, sexual deviancies. I think that the provisions of the Bill are entirely preferable. I hope that, with those assurances, the hon. Member for Beaconsfield will agree that the issue is best left to the good sense of the judge, who is best placed to decide whether it is necessary to introduce consideration of a defendant's characteristics, and which characteristics are relevant.

I hope that that satisfies the hon. Gentleman that there is no circumscription in the formulation of the Bill. The judge or jury can take into account all or any characteristics and circumstances that they wish to, and it is best that we leave that decision to the judge and jury for each case.

I want the Minister to take up the point to which my hon. Friend the Member for Northampton, North (Ms Keeble) alluded. Subsection (2) says that one must look, where appropriate, at the

''steps A has taken to ascertain whether B consents.''

Does the Minister agree that that specification should focus the court's attention on what is happening at the time of the offence, and push to the margins of relevance anything that has been heard before about how the complainant might have reacted if the defendant tried to have sex with her—in other words, that it should make the previous sexual history of the complainant far less relevant?

Yes, I agree. My hon. and learned Friend will be aware that matter of the previous sexual history of the complainant in cases of sexual offences is circumscribed already by the Youth Justice and Criminal Evidence Act 1999, to which I have referred. I invite hon. Members to withdraw the amendments.

I am grateful to the Minister for facilitating the debate and particularly for the answers that she gave to the amendments tabled by my hon. Friend the Member for Woking. I found those answers, which were about leaving the discretion of bringing in any particular characteristics to the judge and the jury, most cogent and persuasive. On that I am wholly satisfied. I am also wholly satisfied that this part of the Bill cannot be improved further; that is a tribute to what went on in the other place.

Does the hon. Gentleman accept that it is important that excuses should not be found for bringing in the woman's previous history or circumstances, which I understand have been used to support a defence of honest belief? It is particularly important that the ability to make such excuses be circumscribed to ensure that the provisions that were included in the legislation to which the Minister referred are completely watertight.

One of the subtle but important changes that the new clause would bring in is the shift to a position where there is an obligation on someone about to have sexual relations with another person not to act negligently in terms of whether consent exists or not. How that impacts on juries is another matter; I do not want to repeat myself. That is the subtle shift that we are introducing. To that extent, I accept that the question of previous sexual history and its relevance may thereby be removed. However, there may be occasions where previous sexual history will be relevant and there may be circumstances in which it will properly be used as evidence; I understand that that will still be possible if the judge considers that the interests of justice require it.

I welcome the fact that we are removing ourselves from the situation where previous sexual history was simply the defence counsel's tool of cross-examination to blacken the reputation of the complainant. The point is quite clear: irrespective of the previous sexual history of the complainant, the defendant should not be absolved from the obligation to act reasonably or to have a reasonable belief. In those circumstances, I certainly welcome that shift.

As I said earlier, we have engaged in an analysis of legal niceties—of subtle changes of wording. I do not mean that pejoratively. There may be profound changes in the way that juries approach rape cases as a result of that. Outside the Committee, anxiety has been expressed over the low conviction rates for rape cases. Some people believe—I do not disassociate myself from such a belief—that the very low conviction rate must be a reflection of the fact that many guilty people are not being convicted, and there is an anxiety to raise conviction rates.

Although it will be interesting to see what happens, I have never been persuaded that the Bill will necessarily achieve a dramatic change to that situation. The problem with date rape—I do not care for the term but I think that the hon. Member for Northampton, North knows what I am talking about—is that juries have difficulty in deciding whether there was consent where there may not be independent evidence apart from the complainant's and the defendant's. I read the Bill when it first went to the Lords and when it came back from the Lords; I wait to be persuaded that, whatever form it takes, the Bill will lead to some dramatic change in the way in which juries can take their snapshot of what happened so that they will conclude more readily that defendants are guilty. The difficulty lies in their being unable to be sure whether there was consent.

There is no doubt that we are talking about a subtle shift. As I was trying to say earlier, it is a subtle shift from a situation in which, in my judgment, juries did not get particularly hooked on the niceties of honest belief if they did not consider that the belief was reasonable. There may be some cases in which that happened, but I am not completely persuaded that that is the nub of the problem.

The Committee wishes justice to be done. That entails the conviction of the guilty and the acquittal of the innocent. I am satisfied that the change does not raise the risk of more innocent people being wrongly

convicted and that is why I am wholly content to see it go through in this form. I am still not persuaded that there will be the dramatic change that some people have suggested, with more convictions.

With respect, is not the hon. Gentleman missing the point? I believe that the conviction rate will go up, but even if he were right about that, does he not take on board the point made by my hon. Friend the Member for Northampton, North, who said that the measure would stop the victim being raped again in court?

The change may have the desirable effect of further curtailing the ability to engage in what I would call irrelevant cross-examination about previous sexual conduct. That has already been curtailed, as was acknowledged earlier. This is an area of practice that I have not dealt with in recent years, so I must accept that I have not seen in practice in court how the measures have worked and whether they have been as effective as was hoped when they were introduced.

The change is an improvement—I need not say more—so I am happy to welcome it in a positive sense. I am not just saying that I go along with it. The definition is better than the previous one. I am completely comfortable with what we are doing. I wanted to stimulate the debate and I am grateful to the Minister for providing, especially towards the end, such a reasoned and cogent explanation of why the measure is good. All I am saying is that the measure is not a panacea for the problem that exists at the root of date rape complaints, which is that juries find it difficult to be satisfied, so that they are sure, that the offence was committed.

It is interesting to contemplate how things might work. Currently in rape cases, jury members know that they have to deal with consent so they have that in the forefront of their mind, but as soon as the man gives evidence that he believed that the woman was consenting—just by going into the witness box and saying that she was—he raises the other defence as well. I wonder whether juries bother to unwrap that or whether they think, ''We're not sure whether she was consenting or not, but, whatever we think, he thought she was, so that's how it goes.'' Now they will have to stop before they do that and say, ''We must unpack the two and ask ourselves the second question: was it reasonable for him to take that view?'' I think and hope that that will happen.

That is what juries will now have to do and that may make a difference to their approach. Taking the most absolute and pessimistic view, under the old system, on the basis of the defence of honest belief, no one in a date rape case would ever have been convicted. However, we know that people were convicted. Juries clearly had the ability to conclude that a belief was not honest. I do not want to go over the ground and lower the Committee's enthusiasm for what we have done. It will be interesting to see how the measure affects conviction rates and whether the

feedback from the courts is that it has had a dramatically different impact on the way in which juries are seen to approach the reasoning of concluding whether someone is or is not guilty. That is a small and perfectly reasonable change to make because the underlying principle is correct. I would not want the public to conclude—other Members may differ—that this is a dramatic change that will lead to enormous changes in conviction rates. I do not think that it will, but I may be proved wrong. If I am proved dramatically wrong, I may start to worry that we have gone too far. Before I do that, I will wait upon the results. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 37, in

clause 1, page 1, line 13, leave out subsection (3).

It would be sensible not to discuss the amendment now and leave it until clauses 76 and 77. That would remove the references to clauses 76 and 77 in clause 1, which would be to remove presumptions. I am not sure whether the Minister agrees with me about the best time to debate that—now or when we consider clauses 76 and 77—but I do not want to take up the Committee's time unnecessarily. As I reflected on this a few minutes ago, it occurred to me that it might be equally sensible not to develop arguments now, as I do not want to force the amendment to a vote, but leave the discussion until we consider clauses 76 and 77. If the Minister would prefer to take the opportunity to explain the rationale behind the presumptions, it might be helpful for the Committee to hear it now and to discuss it later.

I do not have any strong views on the matter except that it would be more helpful to the Committee briefly to discuss the reasons why we introduced presumptions in the first place—to set out the principles now, and to turn to the proposals later.

I am grateful to the Minister. On the basis that she intervened, I will develop my argument further.

Clearly, clauses 76 and 77 introduce presumptions that will have a very material impact on the way in which rape trials take place. They raise presumptions about the absence of belief in consent. I am grateful for the work done in the other place on those clauses, particularly clause 76. One of the consequences of that work was entirely to remove my anxieties about clause 76, and I am comfortable with the notion that there should be presumptions about the absence of belief in consent. The circumstances listed in clause 76(2) are largely correct.

The alternative approach would be to say that there is no need for the presence of such presumptions, so I should like the Minister to explain the public policy reasons for inserting those presumptions. They are rebuttable, of course, and they still leave the onus on the prosecution to prove their case if a defence is raised. However, the presumptions oblige the defendant to enter the witness box to provide an explanation at least for what he says happened. All those things are desirable.

I say that mindful of the fact that the basic presumption in our law is that it is for the prosecution to prove their case. Although I am unsure whether this is the best analogy to make with rape trials, in my health and safety work I am aware that there are several areas of law where shifts in the burden of proof have been introduced. The shift contemplated in clause 76 is sensible.

I have a query, which I shall return to later, about the possible curious consequences of clause 77(2)(b), but I do not want to amplify my comments at this stage. Again, I accept that there may be circumstances in which there should be conclusive presumptions, and one such presumption should certainly be where the defendant intentionally deceives the complainant as to the nature or purpose of the relevant act.

I look forward to hearing the Minister's brief explanation. Perhaps we can return to one or two of the detailed points when we examine those two clauses.

As the hon. Gentleman says, clauses 76 and 77 were the subject of much debate and amendment in another place, and we are therefore working with improved proposals.

The amendment seeks to disapply the presumptions from the offence of rape. Although it is a probing amendment, I shall make it clear that the presumptions apply to all generic, non-consensual offences in the Bill. It will be helpful if I outline the policy justifications for the presumptions and how they will work in practice.

The presumptions in relation to the absence of consent are designed to make clear in statute the circumstances in which consent is unlikely to be present and in which the jury is entitled to presume, either rebuttably in the case of clause 76 or conclusively in the case of clause 77, that the sexual activity complained of was non-consensual and that the defendant had no reasonable belief in consent.

The effect of the circumstances set out in clause 76 is that where the prosecution can prove that the defendant did a relevant act as defined in clause 78, that the circumstances described in clause 76(2) existed and that the defendant knew that those circumstances existed, the complainant will be presumed not to have consented to the relevant act and the defendant will be presumed not to have reasonably believed that the complainant consented.

In order for those presumptions not to apply, the defendant must satisfy the judge from the evidence that there is a real issue about consent and/or his reasonable belief that is worth putting to the jury. The evidence relied on will probably be given by the defendant himself in the witness box, on behalf of the defendant by a defence witness or by the complainant during cross-examination.

I am strongly in favour of clause 76, but it might cause difficulty in a case involving a couple who enjoy sado-masochistic sex, which would be covered by clause 76 if violence against a person were involved. Sado-masochistic sex is not generally a problem because it is consensual, but where such a relationship breaks down there may be a vexatious

complaint. In that case, would there not be considerable difficulties when the defendant legitimately produced a credible defence?

Order. We are in a difficult position because the amendment seeks to disapply the two clauses. We must avoid getting on to the substance of the two clauses, unless an argument has been made as to why the amendment should be supported or rejected. I ask Members to bear that in mind when they intervene.

I am certain that the hon. Member for Romsey (Sandra Gidley) can return to that point when we debate the detail of the presumptions. It is unlikely that there would be a complaint in such circumstances, so clause 76 would not apply. Furthermore, it would probably be more straightforward for a defendant to rebut such a case.

I wish to return to the way in which the presumptions will work. If the judge were satisfied that there was sufficient evidence to justify putting the issue of consent to the jury, the matter would have to be proved by the prosecution in the usual way. If the judge did not believe that the evidence relied on by the defendant met the threshold, the judge would direct the jury to find the defendant guilty—assuming that the jury was sure that the defendant did the relevant act, that the circumstances under subsection (2) applied and that the defendant knew that.

The effect of the two conclusive presumptions under clause 77, such as where the defendant deceived the complainant about the nature or purpose of the sexual act or where he deceived the complainant about his identity by impersonating someone known personally to the complainant, is that it shall be conclusively presumed that consent was not present and that the defendant did not believe that the complainant consented.

It is useful to outline the way in which the presumptions will work. The policy intentions behind them are twofold. First, the conclusive presumptions are based on existing statute and case law. In other words, one of the principles behind the proposal is that we should take steps to clarify existing case law and incorporate it into statute. It is right that the new legislation should reflect that position. Secondly, we believe that there is real value in making a statement in the legislation about the circumstances in which sexual activity is not acceptable. It will provide juries with a clear framework within which to make fair and just decisions, and serve as a clear statement to the public more generally about what we as a society regard in a sense as a bottom line in terms of sexual activity. The presumptions reflect a widespread consensus, as the review ''Setting the Boundaries'' demonstrated.

We believe that the presumptions in relation to consent and belief in consent will help to redress the balance in favour of victims. We hope also that that will encourage them to put their faith in the criminal justice system and bring more cases to trial. I have outlined to the hon. Member for Beaconsfield our intentions behind the principle of including some presumptions, rebuttable and conclusive. Indeed, it is

in the interests of fairness to the defendant that, when deciding on the formulation of those presumptions, we frame the legislation in terms mainly of rebuttable, instead of wholly conclusive, presumptions. That will strike the right balance between the interests of the victim and the defendant.

I am grateful to the Minister for providing a helpful introduction to our further discussion when we debate clauses 76 and 77. I do not wish to address the Committee further. The amendment was a probing amendment. I am satisfied with the principle that there should be rebuttable and some conclusive presumptions. I am happy that they should apply across the board, especially in rape cases.

However, oddly enough I have a convoluted lawyer's concern about the conclusive presumption of impersonation under clause 77, to which I shall return. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 1, in

clause 1, page 1, line 14, after 'liable,', insert

'if aged 18 or over at the time of the offence.'.

With this it will be convenient to discuss the following:

Amendment No. 2, in

clause 1, page 1, line 15, at end insert—

'(5) Unless subsection (4) applies, a person guilty of an offence under this section—

(a) is liaible on conviction on indictment, to imprisonment for a term not exceeding 15 years;

(b) prior to sentencing, shall be subject to a comprehensive assessment by a Youth Offending Team;

(c) shall only be subject to notification requirements under Part 2 of this Act following an assessment of the risk that he poses to the public.'.

Amendment No. 3, in

clause 3, page 2, line 13, after 'liable,', insert

'if aged 18 or over at the time of the offence.'.

Amendment No. 4, in

clause 3, page 2, line 14, at end insert—

'(5) Unless subsection (4) applies, a person guilty of an offence under this section—

(a) is liaible on conviction on indictment, to imprisonment for a term not exceeding 15 years;

(b) prior to sentencing, shall be subject to a comprehensive assessment by a Youth Offending Team;

(c) shall only be subject to notification requirements under Part 2 of this Act following an assessment of the risk that he poses to the public.'.

Amendment No. 5, in

clause 4, page 2, line 25, after 'liable,', insert

'if aged 18 or over at the time of the offence.'.

Amendment No. 6, in

clause 4, page 2, line 29, at end insert—

'(5) Unless subsection (4) applies, a person guilty of an offence under this section—

(a) on summary conviction, to imprisonment for a term not exceeding 3 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years;

(c) prior to sentencing, shall be subject to a comprehensive assessment by a Youth Offending Team;

(d) shall only be subject to notification requirements under Part 2 of this Act following an assessment of the risk that he poses to the public.'.

Amendment No. 8, in

clause 5, page 3, line 10, leave out subsection (5) and insert—

'( ) Unless subsection (4) applies,

(a) a person guilty of an offence under this section, if aged 18 years or above at the time of the offence, is liable—

(i) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;

(ii) on conviction on indictment, to imprisonment for a term not exceeding 10 years.

(b) a person guilty of an offence under this section, if aged 18 years at the time of the offence, is liable—

(i) on summary conviction, to imprisonment for a term not exceeding 3 months or to a fine not exceeding the statutory maximum or both;

(ii) on conviction on indictment, to imprisonment for a term not exceeding 5 years.

( ) A person aged below 18 years at the time of the offence—

(a) prior to sentencing, shall be subject to a comprehensive assessment by a Youth Offending Team;

(b) shall only be subject to notification requirements under Part 2 of this Act following an assessment of the risk that he poses to the public.'.

The amendments were tabled because of a worry that the Bill was a catch-all Bill and because there are cases in which young people under 18 are accused of rape. We do not want a young person who has committed an offence before his 18th birthday to receive a life sentence. We also felt as a party that children in that position need help and support, and would need to be subject to an assessment that would be conducted by a multidisciplinary authority as well as a youth offending team.

Clauses 1, 3, 4 and 5 lay out the offences in relation to non-consensual sexual activity, rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent. The clauses do not make a distinction between over-18s and under-18s. That would leave under-18s liable to life imprisonment for rape and assault with penetration, a sentence of 10 years for sexual assault, life for causing a person to engage in sexual activity without consent where the offence involves penetration, or 10 years in cases where penetration does not occur.

I accept that the clauses deal with the most serious sexual offences, and their seriousness must be reflected by the maximum sentencing available to the courts. We believe that making children liable to such excessively long sentences is probably inappropriate. The 1989 convention on the rights of the child, to which the UK is party, provides that children should be treated in a manner that takes into account their age and the desirability of promoting their reintegration and the child's assuming a constructive role in society. The state is obligated to promote the establishment of laws and procedures that are

specifically applicable to children. The convention further provides that detention shall be imposed only as a last resort and for the shortest appropriate period, and that life imprisonment shall not be imposed without the possibility of release where an offence was committed by someone under the age of 18.

Although the Bill sets out maximum rather than mandatory sentences—therefore, it is likely that juveniles would receive a reduced sentence—the UN Committee on the Rights of the Child stated that legislation that sets such high sentences for juveniles actually violates article 37 of the convention. I would be grateful if the Solicitor-General commented on that. Under-18s should be treated differently from adults. Consequently, the amendments tabled to clauses 1, 3, 4 and 5 would introduce a subsection providing for a low and maximum sentence for persons aged under 18 at the time of the offence. That sentence is still fairly stringent, in my opinion, so it is not the case that we are treating the crime lightly in any way.

I am in sympathy with much that the hon. Lady says, but does she really think it appropriate to continue to keep such an issue so firmly within the criminal justice system? If we are looking at cases of children who could be only 10 years old, should we not place them more firmly within the multidisciplinary assessment and the child protection framework?

I thank the hon. Gentleman for that intervention. I was hoping for support from him because I know that he is a great supporter of children's rights. In an ideal world, the crucial thing would be to involve younger rapists—we have to admit that such cases do happen—in a child support system. We have to provide such support; it is the right thing to do. We are faced with a Bill that does not do that, and the amendment is really a way of raising the issue.

We are concerned that the Bill does not include any formal or explicit obligation for pre-sentence reports to be carried out before sentencing under-18s. Although existing legislation and the Criminal Justice Bill include provisions for pre-sentence reports for offenders, including those under 18, to rely solely on those provisions would mean ignoring the specialised treatments that young sex offenders require. Furthermore, under the Criminal Justice Bill the courts will have an obligation to order a pre-sentence review only if the case is triable either way, rather than on indictment. Therefore, a pre-sentence report will not be obligatory for the most serious offences under the Bill—those set out under clauses 1, 3, 6, 7 and 9.

Although pre-sentence reports under the Criminal Justice Bill are designed to assist the court in determining the most appropriate method of dealing with an offender, it is of some concern that such reports for young sex offenders will focus far too heavily on the risk posed to the public rather than give due weight to the most beneficial way of rehabilitating the juvenile. That links into the intervention made by the hon. Member for Lancaster and Wyre (Mr. Dawson).

The amendments include a new subsection to the clause relating to under-18s, which would provide for a pre-sentence report to be carried out by the youth offending team so that recommendations regarding disposal take full account of the child's needs.

Would that not already happen without its having to be spelled out in the legislation?

I think I mentioned that it would not necessarily happen. There is provision for it to happen, but it would not be automatic.

The youth offending team could of course be substituted for an appropriate officer in accordance with the provision in the Criminal Justice Bill. I accept that the Bill team might consider that provisions for pre-sentence reports do not fall within the scope of the Bill and could be provided for in the accompanying guidance. However, the strength of feeling about the issue is such that we have decided to highlight the concern by including it in the amendments.

I shall turn to notification requirements. Under-18s will automatically be subject to the notification requirements of conviction for both non-consensual activity under clauses 1 and 3 to 9, and consensual activity under later clauses. Under-18s will be subject to notification requirements for half the period of time of adults, except where they have been sentenced for a detention period of 30 months or more when they will be subject to notification requirements for an indefinite period.

A child who is subject to notification requirements will be required to notify the police of his date of birth and home address. He will also be required to inform the police within three days of changes to his name or address and of when he stays for any time at another address. That information will be held on the sex offenders register. I question whether such stringent measures are an appropriate burden for children and young people. I believe that they are inappropriate. Such young people often still live with their parents or carers, are less likely to move around than adults and are often receiving multidisciplinary agency assistance and therefore stay within that network. Furthermore, only a small number of children pose a high risk to other children.

The proposed amendments address that concern by excluding under-18s from being automatically subject to notification requirements. The amendments also introduce an obligation that an assessment of the risk that the convicted juvenile poses to the public should be carried out to determine whether he should be subject to notification requirements. We are not saying, ''No, in any circumstances'', but stressing that each young person should be treated as an individual and that notification requirements should be adjusted accordingly.

I have probably covered all the points that I wanted to raise. The amendments have been tabled to discuss the broader issues around younger people. I accept that there is the grey area of someone of 17 and a half who is clearly adult in behaviour, although he is not legally an adult, and he could easily be regarded as posing a risk. The bulk of our thought was about the younger, more vulnerable children who need help and

rehabilitation. If they are acting in this way, it is often because they have been abused in some way themselves.

I listened with great interest to the hon. Lady. I shall also listen with great interest to the Solicitor-General's response. I am sympathetic to the ideas behind the points that she has developed. It is clear that juveniles must be treated differently from adults in terms of their offending. I suspect that every member of the Committee will subscribe to that view.

I was slightly more puzzled about whether it is necessary to introduce the amendments to spell out that fact. I shall listen carefully to the Solicitor-General, and I was interested to hear the response of the hon. Member for Romsey to my brief intervention, but I would have thought it astonishing if any disposal and sentencing of a juvenile occurred without the steps that she wants included in the Bill. There may be circumstances in which that can be done—and we should consider closing that loophole—but it is alien to my understanding of how the court system works. Therefore, we may be worrying about something that is more theoretical than practical in its impact.

The second question is whether it is right that there should be a life imprisonment sanction at worst for juveniles who commit the most serious sexual offences. That is also the nub of the first part of the hon. Lady's argument. I reluctantly take the view that there must be. She answered her own question in raising the issue of the 17-and-a-half-year-old serial rapist. In those circumstances we must have the option of an indeterminate sentence. However, one would also assume that, because of the different regime that would apply to juveniles, the meaning of the phrase ''life imprisonment'' would operate differently. I will wait to hear from the Solicitor-General whether I am right on those matters but, on the basic question of whether society needs protection from a 17-and-a-half-year-old serial rapist by using an indeterminate sentence, I reluctantly and unfortunately think that it does. On that basis, the amendments would be counter-productive to the interests of justice.

I do not demur at all from what the hon. Member for Beaconsfield said, but there is a great deal of sense and purpose in the amendments. I welcome the attempt to draw a distinction, not just between juveniles and adults, but between under-18s and over-18s. That is in line with the UN convention on the rights of the child and the Children Act 1989. It is vital to introduce that distinction to the sphere of criminal justice and any legislation relating to young people in trouble with the law.

This is possibly not the place for such a debate, but I firmly believe that the amendments point to the need for new legislation and definitions for youth justice and the way of sentencing young people in this country. I accept that young people who have been found guilty of extremely serious offences will be dealt with differently by courts. However, the fact remains that, in this Bill and other legislation, that intention is

not made plain and many of the arrangements that we have for young people are highly unsatisfactory.

Everyone would accept that any child—that is what we are talking about—who involves themselves in extremely serious offences clearly has problems in their own life that need to be addressed and resolved in a more constructive way than by simply sentencing them to long terms of imprisonment. We need to envisage the proper use of the care system and, in many cases, the secure care system. We may need to assess and plan to provide for young people for very long periods of their lives, well into adulthood. On the face of it, these amendments are important and point to very serious issues. I look forward to hearing the Solicitor-General's response.

I should like very much to associate myself with the comments of the hon. Member for Lancaster and Wyre. There is a big issue over which particular offences, at which age, should be dealt with through the criminal justice system. There is almost a case for questioning whether prosecution is the right route for very young children. I shall not start to talk about particular ages because there are differences, but we should ask that question for, say, a 10-year-old. Clearly, that question cannot be addressed in this Bill, but it is important to discuss the issues surrounding the treatment of children.

I endorse the comments of my hon. Friend the Member for Romsey that there is not a firm belief that the appropriate treatment is always available. That is substantiated by the fact that requests for the pre-sentencing report and its wider remit have come from a coalition of children's charities including the Children's Society, Barnardo's, the National Society for the Prevention of Cruelty to Children, the National Children's Bureau and others. The very fact that there is that wide coalition reflects the genuine concerns, and I hope that we can bear that in mind. Although it might not always be the norm to include such features in a Bill, there is such concern out there that, given that we are dealing with this difficult issue through the criminal justice system rather than through other organisations, to include more in the Bill than we would normally might be a way forward.

I have a particular case in which the parents live in my constituency, although I do not want to go into great detail about it because I have mentioned it before; the case is so distressing. Their teenager committed a minor offence with just a fine as the outcome. There was not a proper report and the ultimate outcome was that a horrendous offence was committed at the age of 19. Two families have been absolutely devastated. That highlights to me why—as I shall stress throughout our consideration of the Bill—providing treatment early enough is so important for a much wider society than the immediate victims and perpetrators. Perhaps we will come to that later. Given that often, although not always, a perpetrator has been a victim in the past, we need to address treatment for victims as well; such problems can be self-perpetuating. I hope that the Solicitor-General can point us down a route where we might look at such issues.

Finally, I shall refer to the report of the Joint Committee on Human Rights, which examined the mandatory period of notification of young sex offenders to the police. It is rather interesting because a debate goes on, and switches around, within its pages. That underlines the fact that there are concerns. The Government might take comfort, for example, from this paragraph:

''On the whole, we accept the Government's view that the package of procedures for deciding how to deal with children who commit sexual offences, taken as a whole, is capable of ensuring that children's ages and circumstances and the circumstances of their offences will be taken into account when deciding the period for which they are subject to a notification requirement.''

That might seem to answer our argument.

However, the very next paragraph goes on:

''We are not entirely satisfied that the system can be relied on to avoid disproportionate burdens on child offenders'',

and gives an example. The final conclusion suggests that there are sufficient safeguards, but I think that reading the whole analysis shows doubts. It is important to address the issue of young sex offenders to give society a firm basis for dealing with some of the terrible crimes that we witness later on. I shall be very interested in the Solicitor-General's response.

The amendments make an important point. I do not know whether it is necessary to have their provisions in the Bill, but it is important to recognise that children must be treated differently from adults. We must recognise and treat young abusers at an early age. Research shows that the small number of young abusers become the adult abusers who cause such distress in our society. It is tremendously important to recognise that at an early age, and the way to respond to that may not be by using a custodial sentence but through intensive treatment. That is not easily available at the moment, and it is currently a bit of a postcode lottery whether someone can receive that treatment. We need to recognise young sexual abusers and treat them in a specialised way that will prevent them from becoming abusers when they are adults.

The amendments are important for two reasons. First, they have shone a light on the question of children and young people and the sentencing of them that is dealt with in the Bill. Secondly, they have given us an opportunity to focus on not only framework of the law, but the difficult background of how the system can deal with people who are 17 years old one day and 18 the next.

The amendments also give us the opportunity to ask whether the framework of the law in the Bill is right in its treatment of children and young people. As my hon. Friends have said, they also give us the opportunity to remind ourselves that we are discussing not just the framework of the law, which we hope and believe that we have got right, but the continuous struggle to get the practice right and deal with the offender in each case in the best possible way.

I want to recap on the structure of amendments Nos. 1 to 6 and 8. They would introduce a reduced maximum penalty for those aged under 18 at the time of the offence on conviction for the offences of rape,

assault by penetration, sexual assault and causing a person to engage in sexual activity without consent. Those are the serious non-consensual sexual offences in this Bill. The amendments would also introduce a statutory requirement for a comprehensive assessment by a youth offending team and require the offender to be subject to the notification requirements under part 2 of the Bill only following an assessment of the risk posed to the public.

I will deal first with the principle of the amendments. As the hon. Member for Beaconsfield said, the courts already take into account the age of the defendant at the time of the offence. We must also bear in mind that they might be sentencing offenders at a different age from when they committed the offence. We are talking not only about sentencing a 17-year-old; we might be talking about sentencing a 30-year-old. The courts must consider the age of the defendant when the offence was committed when determining the appropriate sentence.

The maximum sentence set for any offence must be capable of being commensurate with the severity, including the extent of the harm caused, of the worst possible case. As the hon. Gentleman said, regrettably one must contemplate the maximum. We are not talking about a mandatory sentence, only the maximum that might have to be available in a particular case, and shorter periods are available to the courts depending on the circumstances of the case.

The offences in clauses 1, 3, 4 and 5, to which the amendments relate, are very serious offences, including forced penile penetration of the vagina, anus or mouth. Regrettably, under-18s commit such offences and some do so on more than one occasion, as was said. We must have commensurate penalties available in such cases, so we cannot accept the amendments to that aspect. The maximum sentence of life is already available for under-18s and I have asked for information on whether that sentence has been used on any occasions. In 2001, the year for which we have information—I apologise that it is only one year—no life sentences were passed. If I find out more information about the practice under the law as it stands—it allows a life sentence—I will let the Committee know.

Separate sentencing provisions for young offenders already exist and a number of specific disposals that take into account the differing needs of children are already available to the courts. However, that will be built on by the debate and action that will follow the ''Children at Risk'' Green Paper, which was brought before the House yesterday and which will consider the point made by my hon. Friend the Member for Lancaster and Wyre about the need to bring together in a coherent framework the different laws covering juvenile sentencing. We must get it right, as far as we can, in the Bill, but it might not be the end of the story and there will be debate arising out of the Green Paper.

On a technical point, the amendments propose a 15-year maximum sentence for offences of rape and assault by penetration. That does not quite fit with the fact that the maximum determinate sentence that can be passed in this country is 14 years. That is slightly anomalous, but we take the point.

The amendments also introduce a statutory requirement that offenders under 18 convicted of such offences should be subject to a pre-sentence comprehensive assessment by a youth offending team. As the hon. Member for Beaconsfield said, arrangements are already in place for pre-sentence reports to be prepared by youth offending teams. It is not clear from the amendment what additional elements might be included in the term ''comprehensive''. I am not sure that we know what that means in legislative terms. We all know what the hon. Member for Romsey is talking about and we would all agree with her, but I am not sure that we know the nature of the ''comprehensive'' legislative beast. We should not introduce a statutory requirement of comprehensiveness when it is not absolutely clear what would need to be done to meet that.

However, work is taking place to develop a strategy for children and young people who engage in sexually abusive behaviour. Last summer, an interdepartmental working group, which comprises officials from the Home Office, the Youth Justice Board, the Department of Health and the Department for Education and Skills, was set up to consider a national strategy. The interdepartmental group has identified a number of important areas that need to be developed.

There is also a lack of good, robust independent evidence about what actually works with this difficult and diverse group of young people and it is likely that we would have to pilot and assess various assessments and treatment interventions. We hope to make some progress and, albeit that we agree with the spirit of the proposal, we do not want to solidify things at a time when they are likely to be moving forward on the practical front. In advance of the work that I mentioned, it is difficult to specify what we might come to believe constitutes effective assessment and intervention in relation to this group or what introducing a statutory requirement for a comprehensive assessment would add.

The amendments also propose that young offenders convicted of such offences should be subject to the notification requirements under part 2 only following a risk assessment. Under the Bill, the young offender will automatically be subject to such requirements in the case of rape, assault by penetration or causing a person to engage in sexual activity without consent, regardless of what penalty is imposed. That is right given the serious nature of those non-consensual offences. In the case of sexual assault, the young offender would be liable for the notification requirement only if he received a sentence of 12 months or more detention. That would trigger notification. If there were a conviction

for a sexual offence and the judge passed a sentence of less than 12 months, the notification requirement would not be engaged. Under-18s will be required to register only when the offence is of such seriousness that the court imposes a 12-month sentence or more. When the court passes sentence, it will take the age of the child into account. In relation to notification, we kick back to the age of the child. As the hon. Member for Romsey has mentioned, in all but the most serious cases, under-18s will only be subject to the registration requirement for half the period applicable to an adult. That is in clause 83(2).

There are some dangerous under-18s. It is just as important for the police to know their whereabouts as it is for them to know the whereabouts of a dangerous adult. The detail of the amendment does not make it clear how the risk assessment and notification requirement relate to each other. For example, it does not make the notification requirement dependent on the outcome of the risk assessment. It merely requires that the risk assessment should have happened, and that raises some questions. Although we agree with the spirit in which the hon. Lady brought the issues to the Committee for debate, for the reasons I have given we would resist the amendments.

I thank the Minister for that very comprehensive reply, and I am pleased to hear that there is a great deal of work happening on those matters. I fully accept that the amendments are not quite right, and it is reassuring to hear that no life sentences were passed for under-18s in 2001—I was persuaded by that fact. In Committee we always tend towards the theoretical and what might be ultimately possible, but we have to take account of what happens in practice. We will review the amendments in the light of the Minister's comments and may try again on Third Reading. At present, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 22, in

clause 1, page 1, line 14, leave out from 'conviction'

to end of line 15 and insert—

'(a) if the offence occurs during or after an acknowledged sexual relationship between the parties to a term of 5 years imprisonment.

(b) otherwise, to imprisonment for life.'.

We do not propose that the Committee votes on the amendment. It is designed to stimulate a much-needed debate on the different types of rape. I use that phrase advisedly because to many of us there are two different types of rape, both of which are equally serious, and I want the Committee to hear my thoughts on them. By introducing the amendment, I want to stimulate a discussion about sentencing and, in particular, conviction rates in rape cases.

I start with a stark example of what can and does happen. A jury is faced with a 26-year-old defendant with no previous convictions, and who is in every respect, save for the present incident, a young man of good character and behaviour. He is charged with the rape of a woman of similar age, with whom he has had an acknowledged sexual relationship in the

past. In cases of that sort, it is very difficult for the jury. They are aware that the guideline sentences for rape are severe, and they are faced with the question—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put.

Adjourned till this day at half-past Two o'clock.