Clause 50 - Causing or inciting child prostitution or pornography

Sexual Offences Bill [Lords] – in a Public Bill Committee am 10:30 am ar 18 Medi 2003.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield 10:30, 18 Medi 2003

I beg to move amendment No. 238, in

clause 50, page 26, line 43, leave out subparagraph (ii).

This is a simple query, which goes back to something that I raised earlier. The Government have unfolded a panoply of offences in the Bill, and I make no criticism of that. However, there is a great deal of duplication.

In the case of a child under the age of 13, causing or inciting child prostitution or pornography will be punishable by 14 years imprisonment. However, in terms of prostitution, the offence is identical to causing or inciting a child under 13 to engage in sexual activity under clause 9, the maximum penalty for which is life imprisonment—I am assuming that both would involve penetrative sexual contact, and prostitution normally would. I accept that pornography might be slightly different, but that still involves sexual activity so it would still be punishable by 14 years imprisonment even if it involved only sexual touching.

Prosecutors will be faced with an array of options and, although I accept that in some cases options can be useful, I wonder whether the range that we are providing sends out mixed messages. On the face of it, encouraging a child under 13 to engage in prostitution is causing or inciting a child under 13 to engage in sexual activity, which is apparently a more serious offence. Will there be guidelines on how prosecutors should approach that? In this part of the Bill, there is a tendency to provide for those under 13 an offence where an offence already exists because of the absolute prohibition on sexual activity earlier in the Bill. I should be grateful if the Minister would explain her reasons.

Photo of Humfrey Malins Humfrey Malins Ceidwadwyr, Woking

My hon. Friend hits on an interesting point. I have compared clause 9 with clause 50. Under clause 50, the offence of causing a person to become a prostitute is potentially much more serious because we are talking about an ongoing horrible activity, whereas under clause 9 it is a one-off offence.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

My hon. Friend makes a very good point. That is precisely why I think that we are in danger of causing a muddle. The Minister may be able to provide some cogent explanations as to why it has been felt that the under-13s need to be catered for under these clauses. Clause 50 is a classic example of duplication: there is already a substantial measure of protection provided by the general prohibitions on sexual activity.

Photo of Stephen Hesford Stephen Hesford Llafur, Wirral West

In terms of the hon. Gentleman's practice at the Bar—he will have watched the sentencing process on many occasions—if we get this wrong, does that not throw the dilemma to the courts? There might be offences of roughly comparable natures. For example, there might be a maximum of 14 years imprisonment for one thing, and an arguably similar offence might have a maximum of seven years. In terms of the relative merits of those offences, would it not be a rough guesstimate to say that the courts would view one as half as serious as the other?

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

The hon. Gentleman makes a good point. When drafting an indictment in the Crown court, it is quite common for there to be a serious offence that requires specific ingredients of proof and a lesser offence that has different ingredients.

I turn to the features of clauses 9 and 50. To leave pornography to one side, with regard to inciting prostitution involving a child under 13, it seems to me that the ingredients will be identical except for one addition: in clause 50, it must be shown that the sexual activity was part of prostitution. In those circumstances, it is unlikely that both offences would be on an indictment. It is likely that there would be an either/or situation in which the prosecution must decide which to pick; and there is always the risk that at the end of the trial the judge might say, ''I can't understand why the prosecution decided to proceed with an offence that is only punishable by 14 years imprisonment because if they had proceeded with the other case I would have dished out life imprisonment.'' If that were to happen, there would be a big public outcry and lots of criticism of the prosecutor—I do not know whether that would be well founded.

I do not see these two offences as alternatives that could be put on a single indictment. To do that would be sloppy practice; if someone tried it, the judge might raise an eyebrow. The prosecutor will therefore have to make the choice—and it will have to be the right one.

This is why I get a bit worried about this plethora of options, all of which are punishing and criminalising what seem to me, in this case, to be virtually identical activities—although I accept that things might be slightly different in the case of pornography.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

It is my understanding that this debate covers similar ground to a debate on Tuesday about amendment No. 203 on familial child sex offences. I was not present then, but I have been informed about that discussion. For the sake of clarity, if the hon. Gentleman is rehearsing that today, I will try to reply on that basis. However, the amendment would not exclude children under 13 from the province of this offence; it would simply raise the possibility of a defence of reasonable belief with regard to age. If I can take it from the hon. Gentleman that that is a technicality that I can ignore in replying to this debate, I will do so.

I assure the hon. Gentleman that in cases where there is evidence that a child has engaged in sexual activity, we would expect the offences in clause 9 to frame the charges. Guidelines will be produced for the Crown Prosecution Service on charging issues relating

to the Bill in general, and we intend it to include that specific guidance. However, if it were uncertain whether sex has taken place, it would be appropriate and necessary to be able to lay a charge under clause 50, as long as the other circumstances of the offence fitted with the prostitution or pornography requirement.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

That may be a problem with clause 9. However, that clause does not require sexual activity to have taken place, because the offence can either be causing it—in which case it must have taken place—or just inciting it. I fully understand the Minister's argument about whether it has happened, but in fact in clause 9 we are providing a high level of criminalisation—including, potentially, life imprisonment—for the incitement to that activity.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

Yes, the hon. Gentleman is right; the incitement element of clause 9 has a substantial overlap with the provisions in clause 50. However, although the guidance will stress that we expect clause 9 to be used whenever possible, we did not want to rule out, at this stage, the possibility that there might be circumstances in which clause 50 would be appropriate or desirable. If actual sexual activity or inciting sexual activity with a child occurs in the context of a child prostitution racket or gang, it might be important, given that we have put the new offences on the statute book, to bring such additional charges on the defendant.

We are making an important statement in bringing forward the new offences, and it did not seem right to rule out at the outset the possibility of bringing an offence against a defendant in relation to prostitution or pornography involving a child under 13, even though I agree with the hon. Gentleman that in most instances clause 9 would provide an appropriate charge. I hope that, in that spirit, the hon. Gentleman will accept that we would not want to circumscribe clause 50 at this stage. I would rather leave it as it is. I accept the hon. Gentleman's main point, which is that there is a substantial overlap, but I would prefer to leave the flexibility with the prosecutors and the courts.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

I am grateful to the Minister for clarifying the matter, and I shall certainly not press the amendment. I shall just say—perhaps before Report the Minister will mull it over with her officials, not just in relation to this clause but in relation to others, too—that this is a blunderbuss Bill. That may be a good thing, but I have a concern. Perhaps I should not listen to the judiciary too much, but they have a slight tendency to say that a surfeit of possibilities is not necessarily conducive to establishing good legal practice. Quite apart from anything else, of course, it results in a multiplicity of sentencing.

A sentencing regime may start to grow up in relation to one offence and, although really the facts are virtually identical to those in another offence, a divergence in sentencing may start to show, precisely because there are too many options. It might be better to concentrate on one option and get diversity within that, rather than having judges look in the wrong

section of Thomas on sentencing, and look at sentencing for one offence and not the other. Those are practical points, but simplicity is the handmaid of justice, and we are creating quite a complicated framework in which one can be punished by a variety of routes. I raise the general question of whether that is desirable.

It may well be that close examination of each clause will mean that one can be satisfied that the offence could be proved in a slightly different way, in which case I withdraw my objections. However, in many cases it seems that the clause is pure duplication, and there are potential downsides to that. Although I appreciate that the Minister wants to send out a clear signal about the disapproval of activities identified on statute, people will have to work with the statute; it is not just a statement of Parliament's intention.

It is important that statute is simple and straightforward, and that people understand the basic ground rules and are not constantly saying, ''Goodness me, this is an offence that I haven't come across. Now, are the ingredients different from those for another offence?'' Those extra layers of complication are not always helpful in getting the desired result. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 50 ordered to stand part of the Bill.