Amendments made: No. 56, in

clause 34, page 17, line 33, leave out from 'it' to 'knowing' in line 34 and insert—

'(i) when another person (B) is present or is in a place from which A can be observed, and

(ii) '.

No. 57, in

clause 34, page 17, line 36, leave out 'or learning disability'.

No. 58, in

clause 34, page 17, line 39, leave out 'or learning disability'.—[The Solicitor-General.]

I beg to move amendment No. 114, in

clause 34, page 18, line 1, after 'liable', insert '—

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

(b) '.

With this it will be convenient to take Government amendment No. 115.

I might have misheard the hon. Member for Woking earlier. Clause 32 involves penetration, so it would not necessarily be appropriate for the offence to be triable either way.

We are now considering amendments Nos. 114 and 115. They would address a disparity between clause 34, which covers engaging in sexual activity in the presence of a person with a mental disorder, and clause 35, which covers causing a person with a mental disorder to watch a sexual act and the equivalent child sex offences under clauses 12 and 13. The offences under clauses 12 and 13 are triable either way, whereas those under clauses 34 and 35 are triable on indictment only. We believe that the same flexibility about mode of trial should be applied to each of the clauses.

The offences potentially catch a wide range of behaviour. For example, clause 34 could catch someone engaging in sado-masochistic sex in the presence of a mentally disordered adult who lacks the capacity to consent. Clause 35 could cover someone forcing such a person to look at a video of a person engaged in a sexual activity with an animal. Such cases are likely to need to be dealt with at the Crown court. However, the sexual activity in the presence of the person or depicted in an image may be a couple sexually caressing each other. Although the deviancy and potential harm is in the fact that this activity is shown to the person for the defendant's own sexual gratification, behaviour at that end of the spectrum might be capable of being dealt with at the magistrates court. We believe therefore that we have got it right in the child sex offences clauses and that the same flexibility about the mode of trial should be extended to clauses 34 and 35.

Amendment agreed to.

Clause 34, as amended, ordered to stand part of the Bill.