Northern Ireland Assembly Flax Flower Logo

Session 2007/2008

First Report

Ad Hoc Committee on the Draft Sexual Offences (NI) Order 2007

Report on the
Draft Sexual Offences
(NI) Order 2007

TOGETHER WITH THE MINUTES OF PROCEEDINGS, MINUTES OF EVIDENCE
AND WRITTEN SUBMISSIONS RELATING TO THE REPORT

Ordered by Ad Hoc Committee to be printed 21 January 2008
Report: 15/07/08R (Ad Hoc Committee)

Ad Hoc Committee on Draft Sexual Offences (Northern Ireland) Order 2007

The Committee was established by resolution of the Assembly under Assembly Standing Order 48(7) on Monday, 3 December 2007. The terms of reference of the Committee were to consider the proposal for a draft Sexual Offences (Northern Ireland) Order 2007, referred by the Secretary of State for Northern Ireland, and to submit a report to the Assembly by 4 February 2008.

The Committee had eleven members, including a Chairperson and Deputy Chairperson; its quorum was five. The membership of the Committee was as follows:

Dr Stephen Farry, Chairperson
Mr Jim Wells, Deputy Chairperson

Mr Mickey Brady Mr Declan O’Loan
Rev Dr Robert Coulter Ms Sue Ramsey
Mrs Dolores Kelly Mrs Iris Robinson MP
Ms Jennifer McCann Mr Alastair Ross
Mr John McCallister

It was agreed by the Committee that where members were unable to attend meetings they could nominate MLA colleagues to do so. Two members, Mr Roy Beggs and Mr Alex Easton, participated on the Committee on that basis.

The report and proceedings of the Committee have been published by the Stationery Office by order of the Committee. All publications of the Committee have been posted at http://www.niassembly.gov.uk/ the website of the Northern Ireland Assembly.

Contents

Acknowledgement

Introduction and Background

Coverage of the Draft Order

Findings and Recommendations

List of Recommendations

Appendix

Minutes of Proceedings

Appendix

Minutes of Evidence

Appendix

Written Submissions and other Correspondence Considered by the Committee

Appendix 4

List of Witnesses

Appendix 5

Contents of the Draft Order 119

Acknowledgement

The Committee wishes to convey its appreciation to all who provided it with evidence and advice, sometimes at very short notice. It would not have been possible to produce this considered response to the legislative proposal without such committed and willing participation.

Introduction and Background

1. This report represents the work of the Ad Hoc Committee on the draft Sexual Offences (Northern Ireland) Order 2007.

2. The Committee was established on Monday, 3 December 2007 by resolution of the Assembly, with the following terms of reference:

To consider the proposal for a draft Sexual Offences (Northern Ireland) Order 2007, referred by the Secretary of State for Northern Ireland, and to submit a report to the Assembly by 4 February 2008.

3. The Committee has eleven members, with a quorum of five. A permanent Chairperson was elected on 14 December 2007, and a Deputy Chairperson on 8 January 2008. The membership of the Committee is as follows:

Dr Stephen Farry, Chairperson
Mr Jim Wells, Deputy Chairperson

Mr Mickey Brady Mr Declan O’Loan
Rev Dr Robert Coulter Ms Sue Ramsey
Mrs Dolores Kelly Mrs Iris Robinson MP
Ms Jennifer McCann Mr Alastair Ross
Mr John McCallister

4. It was agreed by the Committee that where members were unable to attend meetings they could nominate MLA colleagues to do so. Two members, Mr Roy Beggs and Mr Alex Easton, participated on the Committee on that basis.

5. The first meeting of the Committee took place on 6 December 2007, when decisions were taken in relation to the initial calling of witnesses and the arrangements for subsequent evidence-taking. Dr Stephen Farry MLA was elected as temporary Chairperson.

6. At its meeting of 14 December 2007, the Committee elected Dr Farry as permanent Chairperson and subsequently at its meeting of 8 January 2008 it elected Mr Jim Wells MLA as Deputy Chairperson.

7. At its meeting of 14 December 2007, the Committee was given a background briefing on the draft legislation and the various consultations which had preceded it by a member of the Assembly Research staff. This was followed by a presentation on the Draft Order by NIO officials.

8. The Committee met in all on five occasions between 6 December 2007 and 21 January 2008, during which time it developed and discharged a programme of work. Finally, it agreed its report to the Assembly at its meeting of 21 January 2008.

9. The minutes of proceedings of the Committee are shown at Appendix 1 and the record of the evidence given is shown at Appendix 2. The Committee was assisted by a researcher, Ms Fiona O’Connell, whose appreciation of the legislative proposals was given by way of oral advice. This was supported by two papers which are included at Appendix 3.

10. The Committee was cognisant of the fact that the Northern Ireland Office had already undertaken a recent extensive consultation exercise on its proposals to reform the law on sexual offences in Northern Ireland. There were some 65 respondents. The Committee as part of its deliberations was able to access useful summary and statistical material in relation to this.

11. Mr Paul Goggins MP, Minister of State for Northern Ireland, wrote to the Speaker on 19 November 2007 referring the proposed Draft Order to the Assembly under Section 85 of the Northern Ireland Act 1998. Under the legislation the consultation process was limited to 60 parliamentary sitting days effective from 20 November 2007 - the date of publication of the proposals - and running to 5 February 2008.

12. The Minister of State met with MLAs on 26 November 2007 to brief them in person on the details of the Draft Order. The proposals are the result of the first ever comprehensive review of sex offences in Northern Ireland and are similar to earlier (2003) legislation enacted for England and Wales.

13. The effects of the Order, as summarised by the Minister, are as follows:

14. Copies of the Draft Order and Explanatory Document issued by the Northern Ireland Office are available on the NIO website at http://www.nio.gov.uk/

Coverage of the Draft Order

15. The proposed Draft Order is the outcome of the first fundamental review of the law on sexual offences in Northern Ireland. Its aim is to achieve a “strengthened, modernised and harmonised body of law, based on the (Westminster) Sexual Offences Act 2003”[1] which was itself informed by extensive and fundamental research. One of the affects of this Order will be to incorporate within the statute those provisions of the 2003 Act which currently apply to Northern Ireland, with the exception of trafficking offences (Sections 57 – 60 of the Sexual Offences Act 2003).

16. The Order, which may be commenced by order of the Secretary of State, is structured into seven parts as follows:

17. The first of these, Part 1, is introductory and, inter alia, deals with key definitions such as “sexual”, “consent” and “touching”.

18. Part 2 deals with the non-consensual offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent. Rape is here redefined and new offences created. This part also provides for new evidential and conclusive presumptions about consent.

19.Part 3 deals with sexual offences against children under 16 and makes it as easy as possible to prosecute these. The offences of rape and assault can now be used in cases involving children under 13 without the issue of consent arising. The presumption is that children under 13 do not have any capacity to consent to sexual activity. There are also proposals relating to offences where adults are in a position of trust, such as those employed in a residential home, detention centre or an educational establishment. There are proposals to deal with sexual offences committed by family (or extended family) members and there are provisions for offences dealing with exploitation through prostitution and pornography which are aimed at protecting children up to 18.

20. Provisions in the Protection of Children (Northern Ireland) Order 1978 and the Criminal Justice (Evidence, etc) (Northern Ireland) Order 1988 are amended to give protection to children up to 17 years of age in relation to indecent photographs.

21.Part 4 deals with sexual offences against persons with a mental disorder.

22.Part 5 deals with prostitution and includes new offences of loitering or persistent soliciting and kerb-crawling. These offences aregender-neutral.

23.Part 6 deals with miscellaneous sexual offences, including preparatory offences that apply whether or not an intended sexual act occurs. There are other miscellaneous offences including exposure, voyeurism, sexual penetration of a corpse and sexual activity in a public lavatory.

24. This part also allows for the prosecution in Northern Ireland, where the offender is domiciled here, of offences against children under 16 that were perpetrated elsewhere.

25.Part 7 is the final part which deals with some exceptions, powers of the Secretary of State, amendments and repeals.

26. Appendix 5 ofthis document provides a more precise listing of the contents of the Draft Order.

Findings and Recommendations

27. The first point to be made is that the Order is in essence about the sexual offences themselves – it is not about victims or sentencing. It contains some 19 offences already extending to Northern Ireland by way of Part 1 of the Sexual Offences Act 2003, and 36 new offences.

28. The Committee recognises that sexual behaviour is a complicated social phenomenon which is not determined merely by what is written into statute. Different regions in different countries have different social climates.The Committee believes that in general terms the sweep of the legislation is sound and that it is the right approach to take, with the exception of the age of consent issue. There is within it a particular regime created for those aged 13 – 16 whichbecause of our view on the age of consent, discussed later, we would wish to see applying to 13 – 17 year olds. There is also a further set of protections beyond this, particularly with reference to those in positions of trust. All this is to be welcomed.

29.The Committee welcomes the codification of the law on sexual offences within a single statute and we welcome increased tariffs for offences, and the move to gender-neutral offences.

30.The Committee welcomes the removal of consent as a defence for sexual activity with a child under 13 and the fact that this now will be regarded as rape.

31.The Committee is averse to the proposed defence of reasonable belief where a child is between the ages of 13 and 18. The removal of this defence, it seems to us (from the evidence given), offers greater protection to children and young people.

32.We welcome the fact that the Order brings clarity to the law on rape, and has an in-built presumption that if violence is used, or if an overpowering drug is administered, that the presumption will be that a rape and not a consensual act has occurred.

33. We heard evidence that the guidance for prosecution, social services and education is not clear, or robust enough, for children who engage in sexually harmful behaviour and that there are issues about resources for any work connected to this. The Committee therefore welcomes the Minister’s evidence that “Effective guidance must be provided to the Public Prosecution Service” and that he wants to ensure that he develops that guidance consultatively and bring into play the views of voluntary organisations and statutory agencies.We believe that there is merit in the development of such prosecution protocols. It is appreciated that it would not be appropriate to include these in the Draft Order, but in the interests of consistency, of justice and particularly of the victims, it is our view that this work should be commenced without undue delay.

34.Protocols should also provide a role for diversionary youth conferencing arrangements (these are unique to Northern Ireland).

35.The Committee was persuaded by arguments in favour of equalising the penalties for causing or inciting abuse of a child through prostitution and paying for the sexual services of a child, and strongly recommends that the Draft Order be amended to reflect this. The perpetrators of both offences each bear a heavy burden of guilt and this should be recognised in the legislation. It is anomalous that a perpetrator of the latter offence could conceivably receive life imprisonment, whereas a person who controls the child might receive only 14 years.

36. Article 76 covers sexual activity in a public lavatory and does so using a modified definition of sexual activity. We believe that in light of evidencean offence of advertising for sexual activity in a public lavatory should form part of this Order.

37. Section 5 of the Criminal Law (Northern Ireland) Act 1967 (CLA) as it stands requires the reporting of an arrestable offence to the police. In this, sexual activity between children is criminalised with a maximum penalty of five years imprisonment. The Committee received evidence that suggests that mandatory reporting of child abuse may be counterproductive and notes that parallel legislation in England and Wales has been repealed.The Committee is of the view that Section 5 should be amended to ensure that young people are not inappropriately penalised for consensual and non-abusing sexual activity.

38.We strongly recommend that the NIO, DHSSPS and key professionals and NGOs establish a forum to develop and take forward policies and practices in this area. There are many interests and there is much scope for misunderstandings in this complex field and there must be a visible process of management and of stakeholder involvement.

39. We are grateful for the Minister’s cake sure that voluntary organisations, statutory agencies and others continue to be involved in the development and outworking of the legislation”.ommitment to a “round table discussion pulling together those in the voluntary and community sector and his officials”; and welcome his statement that “I want to m

40. We note that the positions of trust referred to in the Draft Order do not includesports coaches. The Minister in his evidence to the Committee indicated that “positions of trust” tend to be statutory and that a review in England examined the inclusion of sports coaches and found against this partly on the basis that a range of other non-statutory positions might also have to be drawn into the reckoning.The Committee, while content to acknowledge the difficulties, would strongly urge the Minister to give further serious consideration to the inclusion of sports coaches within the legislation.

41. The Committee wishes to acknowledge the work of the various agencies in dealing with“victims and survivors” of sexual violence, and of the initiative of the Health Minister in announcing Northern Ireland’s first Sexual Assault Referral Centre. The Committee recognises both the limitations of the criminal law, as indeed has the Minister, and the importance of social agencies and strategies in this field.

42. The Committee was divided on the proposal to reduce theage of consent in Northern Ireland from 17 to 16. Competing arguments were put forward by witnesses and consensus could not be reached in Committee on the matter. The Minister, in his direct evidence to the Committee indicated that even if the Committee was unanimous in recommending the status quo, he would still need to be convinced of the advantages of being out of step with England and Wales on this matter. He believes that the burden of proof rests with those who advocate a different age of consent for Northern Ireland.

43. The full text of the evidence given on this matter, which accounted for a substantial proportion of the total evidence given, is contained in Appendix 2. The Committee, in deliberating on the matter, took account of the arguments of the various groups, including evidence as to possible additional risks.

44. The Minister’s view was that “the key issue is that this legislation is about defining when sexual activity is a criminal offence; it is not about saying when young people should be engaging in sexual activity.” He went on to point out that the DHSSPS teenage pregnancy and parenthood strategy, which has been running for some five years, has begun to show some real signs of progress with a reduction of about 25% in teenage pregnancies over the period.

45. The children’s organisations are concerned that the current position prevents young people from coming forward for advice when they are engaged in sexual activity. It has also been argued that if marriage can take place at 16, then on grounds of equality, it is reasonable to have an age of consent at 16. It appears that it is the case that rates of teenage pregnancy in Holland are the lowest in Europe even though the age of consent is 16, indicating perhaps thatstrategy rather than legislation provides the solution, or at least the greater contribution to it.

46. Evidence shows that this is an area of law that is notoriously difficult to sustain in terms of successful prosecutions because it is often one persons word against another.

47. The age of consent in the Irish Republic is 17 and there was some concern as to possible consequences of a lowering of the age here which would place some 26,000 additional children in Northern Ireland above the age of consent, and therefore at some additional risk. The Christian Institute argued, among other things, that there is apenumbra effect around the age of consent. In essence it is advanced that convictions tend to be less likely if the age of the victim is slightly below the age of consent.

48. Other arguments posited against change were that the Minister is by no means under any compulsion to make a change, simply because of changes made elsewhere in the UK, and that the Dutch situation, referred to earlier (45), cannot be regarded as something that can be read across without fully taking into account the many differences between the two jurisdictions. The Christian Institute in its evidence also pointed out that where there is an age of consent offence, the prosecution need only prove that a sexual act took place, whereas in cases of rape above the age of consent the issue of consent is a fulcrum of contention.

49. The majority view of the Committee is that the case for a change in the age of consent has not been made. There is no public lobby in Northern Ireland for such a change, and there is nothing to prevent such a change being made in the future if the public and/or its elected representatives can be persuaded of the merits of the case.It is the Committee’s view that the burden of proof rests with those who seek change and not, as has been suggested, with those who oppose it.

50. Therefore,the Committee strongly recommends that there be no change to the current age of consent of 17.

List of Recommendations

Minutes of Proceedings Relating to the Report

Thursday, 6 December 2007
Room 152, Parliament Buildings

Present: Mr Roy Beggs MLA (Deputy)
Mr Alex Easton MLA (Deputy)
Dr Stephen Farry MLA
Mr Declan O’Loan MLA
Ms Sue Ramsey MLA
Mr Alastair Ross MLA

In Attendance: Mr Denis Arnold (Assembly Clerk)
Mr Neil Currie (Assistant Assembly Clerk)
Mr Roger Kernaghan (Clerical Officer)

Apologies: Mr Mickey Brady MLA
Rev Dr Robert Coulter MLA
Mrs Dolores Kelly MLA
Ms Jennifer McCann MLA
Mr John McCallister MLA
Mrs Iris Robinson MP MLA
Mr Jim Wells MLA

The meeting opened at 10.35am in closed session with the Clerk in the Chair.

1. Apologies

Apologies are detailed above. Mr Easton attended in place of Mrs Robinson. Mr Beggs attended in place of Rev Dr Coulter.

2. Election of Chairperson and Deputy Chairperson

As a large number of Members were unable to attend this first meeting the Clerk proposed, as an interim measure, that a temporary Chairperson be nominated.

Agreed: It was agreed that a temporary Chairperson should be nominated.

The Clerk then called for nominations for the position of temporary Chairperson. Mr Easton proposed Dr Farry. Mr Beggs seconded this proposal and Dr Farry accepted the nomination.

There being no further nominations, the Clerk put the question without debate.

Question put and agreed:

That Dr Farry be temporary Chairperson of this Committee.

Agreed: It was agreed that a permanent Chairperson and Deputy Chairperson would be elected at the next meeting.

The meeting was suspended at 10.38am in order for the Clerk to brief Dr Farry.

The meeting resumed at 10.42am with Dr Farry in the Chair.

The meeting moved into public session at 10.42am.

Members noted the composition of the Committee and the Chairperson introduced the other Committee Office staff.

The Chairperson advised Members that previous Ad Hoc Committees had allowed deputies to stand in where Members could not attend.

Agreed: It was agreed that that nominated Members should try their best to attend meetings to ensure continuity, especially given the Committee’s very tight timescale, but that deputies could attend in their place.

3. Declaration of Interests

The Chairperson reminded Members that the Guide to the Rules Relating to the Conduct of Members requires that, before the first meeting of a Committee, Members must send to the Committee Clerk details of any interests, financial or otherwise, for circulation to the Committee.

The Chairperson invited Members to declare any interests and to forward their Declaration of Interests in writing to the Committee Clerk.

4. Forward work programme

The Clerk gave a brief outline of the current NIO position in terms of consultation on the Draft Sexual Offences (NI) Order 2007 and the Committee’s role in this. The Clerk also advised that Assembly Research staff had been asked to provide a briefing paper for Members on the provisions of the Draft Order.

Agreed: It was agreed that Research staff should give an oral briefing on their paper at the next meeting.

Agreed: It was agreed that Minister Paul Goggins MP and/or NIO officials should be invited to brief the Committee at its next meeting on the provisions of the Draft Order.

Agreed: It was agreed that the NIO consultation list should be obtained and to consider at the next meeting which organisations should be invited to give oral evidence.

5. Draft Public Notice

Agreed: The Committee agreed a public notice to be placed in the local press seeking written submissions on the proposed legislation.

6. Any other business

None.

7. Date, time and place of next meeting

The next meeting of the Ad Hoc Committee on the Draft Sexual Offences (NI) Order 2007 will be held on Friday, 14 December 2007 at 10.30am in Parliament Buildings. The venue would be advised.

The Chairperson adjourned the meeting at 11.00am.

Dr Stephen Farry MLA
Temporary Chairperson
Ad Hoc Committee on the Draft Sexual Offences (NI) Order 2007
14 December 2007

Minutes of Proceedings Relating to the Report

Friday, 14 December 2007
Senate Chamber, Parliament Buildings

Present: Dr Stephen Farry MLA
Mr Declan O’Loan MLA
Ms Sue Ramsey MLA
Mr Alastair Ross MLA
Mr Jim Wells MLA

In Attendance: Mr Denis Arnold (Assembly Clerk)
Mr Neil Currie (Assistant Assembly Clerk)
Mr Roger Kernaghan (Clerical Officer)
Ms Fiona O’Connell – Assembly Research & Library Services (item 5 only)

Apologies: Mr Mickey Brady MLA
Rev Dr Robert Coulter MLA
Mrs Dolores Kelly MLA
Ms Jennifer McCann MLA
Mr John McCallister MLA
Mrs Iris Robinson MP MLA

The meeting opened at 10.35am in closed session with the temporary Chairperson, Dr Farry, in the Chair.

1. Apologies

Apologies are detailed above.

2. Election of Chairperson and Deputy Chairperson

The temporary Chairperson called for nominations for the position of Committee Chairperson. Mr Wells proposed Dr Farry. Mr Ross seconded this proposal and Dr Farry accepted the nomination.

There being no further nominations, the temporary Chairperson put the question without debate.

Question put and agreed:

That Dr Farry, being the only candidate proposed, be Chairperson of this Committee.

Agreed: It was agreed to defer the election of a Deputy Chairperson to the next meeting.

The meeting moved into public session at 10.39am.

3. Draft minutes of the meeting held on 6 December 2007

Agreed: The draft minutes were agreed.

4. Declaration of Interests

The Chairperson reminded Members of the need to declare any relevant interests.

The Chairperson invited Members attending their first meeting to declare any interests, and requested that any Members who had not done so, to forward their Declaration of Interests in writing to the Committee Clerk.

5. Briefing by Assembly Research

Ms Fiona O’Connell from Assembly Research and Library Services briefed the Committee and answered Members queries on the research papers prepared in relation to the provisions of the Draft Order.

The Chairperson thanked Ms O’Connell for the informative briefing.

6. Briefing by Northern Ireland Office on the Draft Order

The following officials from the Northern Ireland Office joined the meeting at 11.08am:

Gareth Johnston – Head of Criminal Justice Reform and Delivery Division

Amanda Patterson – Head of Sexual Crime Unit

Jim Strain – Legal Adviser

Stephen Cowan – Criminal Justice Directorate

The officials briefed the Committee on the purpose and main provisions of the proposed Draft Order. This was followed by a question and answer session.

The officials agreed to provide the Committee with some additional information in relation to the proposed legislation.

The Chairperson thanked the officials for the briefing.

The officials left the meeting at 12.28pm.

7. Forward Work Programme

The Committee discussed which organisations should be invited to give oral evidence to the Committee.

Agreed: It was agreed that the following organisations should be invited to give oral evidence:

Agreed: It was agreed that the Chairperson could invite other organisations to give oral evidence, depending on the written submissions received.

8. Any other business

None.

9. Date, time and place of future meetings

The next meeting of the Ad Hoc Committee on the Draft Sexual Offences (NI) Order 2007 will be held on Tuesday, 8 January 2008 at 10.00am in Room 144, Parliament Buildings.

A further meeting will be held on Monday, 14 January 2008 at 9.30am in the Senate Chamber, Parliament Buildings.

The Chairperson adjourned the meeting at 12.37pm.

Dr Stephen Farry MLA
Chairperson, Ad Hoc Committee on the Draft Sexual Offences (NI) Order 2007
8 January 2008

Minutes of Proceedings Relating to the Report

Tuesday, 8 January 2008
Room 144, Parliament Buildings

Present: Dr Stephen Farry MLA (Chairperson)
Mr Mickey Brady MLA
Rev Dr Robert Coulter MLA
Mrs Dolores Kelly MLA
Mr John McCallister MLA
Mr Declan O’Loan MLA
Ms Sue Ramsey MLA
Mr Alastair Ross MLA
Mr Jim Wells MLA

In Attendance: Mr Denis Arnold (Assembly Clerk)
Mr Neil Currie (Assistant Assembly Clerk)
Mr Roger Kernaghan (Clerical Officer)
Mr David Irvine (Clerical Officer)

Apologies: Ms Jennifer McCann MLA
Mrs Iris Robinson MP MLA

The meeting opened at 10.03am in closed session.

1. Apologies

Apologies are detailed above.

2. Election of Deputy Chairperson

The Chairperson called for nominations for the position of Deputy Chairperson. Mr Ross proposed Mr Wells. Mrs Kelly seconded this proposal and Mr Wells accepted the nomination.

There being no further nominations, the Chairperson put the question without debate.

Question put and agreed:

That Mr Wells, being the only candidate proposed, be Deputy Chairperson of this Committee.

The meeting moved into public session at 10.05am.

3. Draft minutes of the meeting held on 14 December 2007

Agreed: The draft minutes were agreed.

4. Declaration of Interests

The Chairperson invited Members attending the Committee for the first time to declare any interests, and requested that any Members who had not done so, to forward their Declaration of Interests in writing to the Committee Clerk.

5. Oral evidence from the NSPCC

The following representatives from the NSPCC joined the meeting at 10.08am:

Martin Crummey – Director

Avery Bowser – Assistant Director

Colin Reid – Policy and Public Affairs Manager

The representatives gave their views on the proposed legislation. This was followed by a question and answer session.

Mr McCallister joined the meeting at 10.48am.

The Chairperson thanked the representatives for the briefing.

The representatives left the meeting at 10.50am.

6. Oral evidence from Barnardos

The following representatives from Barnardos joined the meeting at 10.50am:

Margaret Kelly – Assistant Director

Jacqui Montgomery-Devlin – Children’s Services Manager

The representatives gave their views on the proposed legislation. This was followed by a question and answer session.

The Chairperson thanked the representatives for the briefing.

The representatives left the meeting at 11.20am.

7. Forward Work Programme

Agreed: It was agreed that officials from the Northern Ireland Office should attend the meeting on 14 January 2008, in order to respond to the views expressed by Members and interest groups who had given evidence to the Committee. It was also agreed that the submission from the Christian Institute should be copied to the NIO.

Agreed: The Committee agreed the motion to be submitted to the Business Committee to allow for the Committee report to be debated in plenary.

8. Any other business

None.

9. Date, time and place of next meeting

The next meeting of the Ad Hoc Committee on the Draft Sexual Offences (NI) Order 2007 will be held on Monday, 14 January 2008 at 9.30am in the Senate Chamber, Parliament Buildings.

The Chairperson adjourned the meeting at 11.25am.

Dr Stephen Farry MLA
Chairperson, Ad Hoc Committee on the Draft Sexual Offences (NI) Order 2007
14 January 2008

Minutes of Proceedings Relating to the Report

Monday, 14 January 2008
Senate Chamber, Parliament Buildings

Present: Dr Stephen Farry MLA (Chairperson)
Mr Jim Wells MLA (Deputy Chairperson)
Mr Mickey Brady MLA
Rev Dr Robert Coulter MLA
Mr John McCallister MLA
Ms Jennifer McCann MLA
Mr Declan O’Loan MLA
Ms Sue Ramsey MLA
Mr Alastair Ross MLA

In Attendance: Mr Denis Arnold (Assembly Clerk)
Mr Neil Currie (Assistant Assembly Clerk)
Ms Karen Roy (Clerical Supervisor)
Mr David Irvine (Clerical Officer)

Apologies: Mrs Dolores Kelly MLA
Mrs Iris Robinson MP MLA

The meeting opened at 9.37am in public session.

1. Apologies

Apologies are detailed above.

2. Draft minutes of the meeting held on 8 January 2008

Agreed: The draft minutes were agreed.

3. Oral evidence from The Christian Institute

The following representatives from The Christian Institute joined the meeting at 9.41am:

Callum Webster – Northern Ireland Officer

Matthew Jess – Research Assistant

The representatives gave their views on the proposed legislation. This was followed by a question and answer session.

Mr McCallister joined the meeting at 9.44am.

Mr Brady joined the meeting at 9.50am.

Rev Dr Coulter joined the meeting at 10.01am.

Mr Wells declared the following interest – he subscribes to The Christian Institute and was one of those who wrote to the Northern Ireland Office in support of the views of The Christian Institute.

The Chairperson thanked the representatives for the briefing.

The representatives left the meeting at 10.21am.

The meeting moved into closed session at 10.21am.

The Committee discussed some of the provisions in the draft Order.

The meeting was suspended at 10.45am.

Mr O’Loan left the meeting at 10.45am.

The meeting reconvened at 11.16am in public session.

4. Oral evidence from Minister Paul Goggins MP

Minister of State Paul Goggins MP joined the meeting at 11.16am, accompanied by the following officials from the Northern Ireland Office:

Gareth Johnston - Head of Criminal Justice Reform and Delivery Division

Amanda Patterson - Head of Sexual Crime Unit

The Minister briefed the Committee on the purpose and main provisions of the draft Order, and responded to the views expressed by Members and interest groups at earlier evidence sessions. This was followed by a question and answer session.

The Chairperson thanked the Minister and officials for the briefing.

The Minister and officials left the meeting at 12.01pm.

Mr Wells left the meeting at 12.01pm.

5. Forward Work Programme

Agreed: It was agreed that the Committee would meet to consider the draft report on Monday, 21 January 2008 at 9.30am. If necessary, a further meeting to sign off on the final report will be held on Wednesday, 23 January 2008 at 9.00am.

6. Any other business

None.

7. Date, time and place of next meeting

The next meeting of the Ad Hoc Committee on the Draft Sexual Offences (NI) Order 2007 will be held on Monday, 21 January 2008 at 9.30am in Room 135, Parliament Buildings.

The Chairperson adjourned the meeting at 12.03pm.

Dr Stephen Farry MLA
Chairperson, Ad Hoc Committee on the Draft Sexual Offences (NI) Order 2007
21 January 2008

Minutes of Proceedings Relating to the Report

Monday, 21 January 2008
Room 135, Parliament Buildings

Present: Dr Stephen Farry MLA (Chairperson)
Mr Jim Wells MLA (Deputy Chairperson)
Mr Mickey Brady MLA
Rev Dr Robert Coulter MLA
Mrs Dolores Kelly MLA
Ms Jennifer McCann MLA
Mr Declan O’Loan MLA
Mrs Iris Robinson MP MLA
Mr Alastair Ross MLA

In Attendance: Mr Denis Arnold (Assembly Clerk)
Mr Neil Currie (Assistant Assembly Clerk)
Mr David Irvine (Clerical Officer)

Apologies: Mr John McCallister MLA
Ms Sue Ramsey MLA

The meeting opened at 9.47am in closed session.

1. Apologies

Apologies are detailed above.

2. Draft minutes of the meeting held on 14 January 2008

Agreed: The draft minutes were agreed.

3. Consideration of Draft Report

The Committee considered the draft Report on the Draft Sexual Offences (Northern Ireland) Order 2007, paragraph by paragraph.

Mr Brady joined the meeting at 10.16am.

The meeting was suspended at 10.18am.

The meeting reconvened at 11.02am.

Mr Wells proposed that the Committee strongly recommends that there be no change to the current age of consent at 17. Mr Ross seconded the proposal.

The Committee divided on the proposal. The following Members voted for the proposal:

Rev Dr Coulter, Mrs Kelly, Mr O’Loan, Mr Ross, Mr Wells.

The following Members voted against the proposal:

Mr Brady, Dr Farry, Ms McCann.

The proposal was, therefore, agreed by simple majority.

The Committee agreed the main body of the report as follows:

Paragraphs 1.1 to 1.3 - Agreed

Paragraph 1.4 - Agreed as amended

Paragraphs 1.5 to 1.14 - Agreed

Paragraphs 2.1 to 2.12 - Agreed

Paragraph 3.1 - Agreed

Paragraph 3.2 - Agreed as amended

Paragraph 3.3 - Agreed

Paragraph 3.4 - Agreed as amended

Paragraphs 3.5 to 3.6 - Agreed

Paragraph 3.7 - Agreed as amended

Paragraph 3.8 - Agreed

Paragraph 3.9 - Agreed as amended

Paragraphs 3.10 to 3.13 - Agreed

Paragraph 3.14 - Agreed as amended

Paragraphs 3.15 to 3.24 - Agreed

List of Recommendations - Agreed as amended

The Committee agreed that it was content for the Chairperson to approve the minutes of the meeting of 21 January 2008, to facilitate their inclusion in the report.

Mrs Robinson joined the meeting at 11.10am.

The Committee ordered the Report on the Draft Sexual Offences (Northern Ireland) Order 2007 (15/07/08R) to be printed.

4. Any other business

None.

The Chairperson adjourned the meeting at 11.14am.

Dr Stephen Farry MLA
Chairperson, Ad Hoc Committee on the Draft Sexual Offences (NI) Order 2007
21 January 2008

Minutes of Proceedings Relating to the Report

Appendix 2

Minutes of Evidence

Page No.

Initial evidence from the NIO on 14 December 2007 29

Evidence from the NSPCC on 8 January 2008 43

Evidence from Barnardo’s on 8 January 2008 50

Evidence from The Christian Institute on 14 January 2008 55

Evidence from Minister Paul Goggins MP and NIO officials on 14 January 2008 61

14 December 2007

Members present for all or part of the proceedings:
Dr Stephen Farry (Chairperson)
Mr Declan O’Loan
Ms Sue Ramsey
Mr Alastair Ross
Mr Jim Wells

Witnesses:

Mr Stephen Cowan
Mr Gareth Johnston
Ms Amanda Patterson
Mr Jim Strain

Northern Ireland Office

1. The Chairperson: I welcome the Northern Ireland Office delegation to the Committee. It includes: Mr Gareth Johnston, Head of the Criminal Justice Reform and Delivery Division; Ms Amanda Patterson, Head of the Sexual Crime Unit, Mr Jim Strain, legal advisor, and Mr Stephen Cowan from the Criminal Justice Directorate.

2. Mr Gareth Johnston (Northern Ireland Office): I thank the Committee for the opportunity to give this briefing. I reiterate that Paul Goggins has sent his apologies. He is sorry that he is unable to attend because of diary commitments. However, he stands ready to give the Committee any additional assistance.

3. I propose to say something about the background to the draft Order, and how we have got to this stage. I will say something about the consultation and its results on the proposals that are now in the draft Order. Then I will hand over to Amanda Patterson, who will take the Committee through the detail of the Order. I realise that we will be covering much the same ground as your researcher, but this is an opportunity to put a little light and shade on the proposals.

4. The Chairperson: Will you reflect on some of the comments that have been made so far and try to address those as you go through your presentation?

5. Mr Johnston: Yes. If members have any other thoughts or questions, we will be happy to address them. If we take questions at the end of the presentation, we will have an opportunity to brief members on all of the Order.

6. The review of the criminal law on sex offences in Northern Ireland was originally informed by a Home Office review that was a fundamental look at sexual offences in England and Wales and took over 16 months to complete. The report was entitled ‘Setting the Boundaries’ and it reported to the Home Secretary in April 2000.

7. As a result of the report, in January 2003 the Home Office introduced into Parliament the Sexual Offences Bill, which provided a whole new body of law on sexual offences. The Bill also reformed the sex-offender provisions by strengthening the notification requirements for convicted sex offenders. It received Royal Assent in November 2003, and the Sexual Offences Act 2003 was implemented in May 2004.

8. It was important for us to implement some of the reforms immediately in Northern Ireland. The Act extended to Northern Ireland the reforms around notification requirements and civil preventative orders, such as sexual offences prevention orders, so that the same provision to do with sex-offender notification and the orders that might affect sex offenders were applied in Northern Ireland at the same time. It was, therefore, also necessary to extend some offences to Northern Ireland, particularly those that were necessary to ensure that sex-offender provision operated on a par with the rest of the UK. We implemented the new offences of meeting a child following sexual grooming and paying for the sexual services of a child.

9. It was necessary to address certain issues immediately. We carried out a broader review of sexual offences law in Northern Ireland to deal with the remaining issues. That review was announced in October 2004, and it contained three objectives: Those were: first, to provide coherent and clear sex offences that protected individuals, especially children and the vulnerable, from abuse and exploitation; secondly, to enable offenders, particular those who are abusive, to be appropriately punished; thirdly, to be fair and non-discriminatory, in accordance with the European Convention on Human Rights (ECHR), the Human Rights Act and the Northern Ireland Act 1998. Your researcher stated some of the ways in which the law is amended to be non-discriminatory.

10. We did not want to reinvent the wheel, and we did not seek to repeat all the work that was carried out in the review in England and Wales. We took the position that, unless there was sufficient justification, the law in Northern Ireland should, as far as possible, match that in England and Wales, given that we are talking about what is and what is not a criminal offence. However, we wanted to ensure that people in Northern Ireland were fully consulted.

11. During the review, in October 2003, we wrote to a range of organisations with an interest in, and concerns about, the law on sex offences. We held a consultation seminar in November 2003, to which the same organisations were invited. That helped to inform our thinking on the proposals that are now before the Committee. In July 2006, we published a wider consultation document on reforming the law on sexual offences in Northern Ireland. We received responses to that consultation, which I will come to in a moment, and, in June 2007, we published the summary of those responses.

12. That consultation document, which I believe was presented to the Committee, considered all the offences in the English legislation — the Sexual Offences Act (2003) — regardless of whether they were already law here, and views were invited on whether they should be included in Northern Ireland law.

13. The Draft Sexual Offences (Northern Ireland) Order 2007 was published on 20 November and made available to the Assembly for consideration. The Minister was pleased to have the opportunity to give an informal briefing to several members on 26 November.

14. The Order concerns the sexual offences themselves. From listening to the Committee’s deliberations earlier I know that there are questions about victims and sentencing, and those are, clearly, important issues. However, the wider issues were not intended to be part of the present Order, which is simply about defining the law that applies to sexual offences in Northern Ireland.

15. Notification that the consultation document was available was sent to 370 interested organisations, stakeholders and individuals, and we received a total of 64 individual responses. A list of those who responded has been made available to members.

16. Alongside those individually crafted responses a lobby campaign was instituted by the Christian Institute and, as a result of that, we received over 4,000 emails and letters supporting its views on four issues arising from the consultation document. Those four issues were: changes to the age of consent; criminal law and under-age sexual activity; the offence of sex in public toilets; and the definition of a brothel.

17. There was very broad support from the majority of respondents for reforming the law on sexual offences in Northern Ireland to bring it along similar lines to England and Wales. The greatest divergence of views was in relation to children, and some of your researcher’s questioning concerned the law for children of 13, then 14- to17-year-olds. The majority agreed that all sexual activity with children under the age of 13 should be illegal, and that rape and assault offences should be formulated without the need for lack of consent to be proved, and that is what we have done — if the child is under 13 the offence will automatically be considered to have been without consent. We take the view that children of that age are not in a position to give informed consent.

18. The majority of respondents who commented directly — 24 out of 39 — agreed that the age at which young people can have their consent to sexual activity recognised by the law should be equalised with the rest of the UK. I refer to the individually crafted responses, rather than those expressing the Christian Institute’s concerns.

19. Those respondents, who were in agreement with equalising the age, included organisations, such as the NSPCC and Barnardo’s, who regarded it as important in ensuring that young people will feel free to avail of support services and advice on sexual relationships. There is a view amongst professionals that 17-year-olds are discouraged by the present law from seeking help and advice about sexual offences, and that, if those services were readily accessible and available to that age group, our rate of teenage pregnancy might be reduced.

20. The one issue on which there was not consensus was on how to deal with consensual sexual activity between children. There are several potential models. There had been a suggestion about providing an age-differential approach to the criminalisation of activity between children, but that did not receive sufficient support to make it a viable option.

21. In light of that lack of clear consensus, we have taken the view that it is best — as I said earlier — to keep the law in Northern Ireland as close as possible to that of England and Wales. Moreover, it confirmed the Minister’s position that, unless there was sufficient evidence and justification for deviating from the Sexual Offences Act 2003, we should adopt the same position in the draft Sexual Offences (Northern Ireland) Order 2007. That is what has happened regarding to sexual activity between children. Amanda will say more about that later.

22. Ms Amanda Patterson (Northern Ireland Office): I apologise in advance if I cover some of the same ground that the researcher has gone over.

23. Before I go through the separate parts of the Order, I want to make several points about the context, and that will give some understanding as to how it all fits together. First, as the Committee has heard, it is based on Part 1 of the Sexual Offences Act 2003. We consulted on the basis that there would be change only if sufficient evidence was submitted to justify a difference for Northern Ireland. From the consultation document and the responses, we did not get that consensus of evidence.

24. All of the existing law on sexual offences in Northern Ireland was on the table for review. All of that law will be replaced by the offences in the new Order. That represents, not simply a consolidation, but a fundamental reform of the law in Northern Ireland, which is the only time that that has happened. We still deal with statutes that date back to the end of the nineteenth century.

25. As has already been said, the policy consultation was not a root-and-branch review for Northern Ireland — we did not want to reinvent the wheel — and we used the stringent and fundamental review that informed the Sexual Offences Act 2003. Therefore, the Order will replace virtually all of the current sexual offences in Northern Ireland and will provide a new framework of offences for the twenty-first century. All offences will be couched in a gender-neutral context.

26. Approximately 40% of the content of the Sexual Offences Act 2003 — some 19 offences — already extend to Northern Ireland. Those include the grooming offence; the abuse of trust offences; the abuse of children through prostitution and pornography; the exploitation of prostitution; the trafficking offences; exposure; voyeurism; sex with animals; sexual penetration of a corpse; and sex in toilets. All of those offences have been part of the law in Northern Ireland since 2004.

27. The three trafficking provisions have already been the subject of some discussion and are remaining in law in Northern Ireland as part of the Sexual Offences Act 2003. That is because those provisions are UK wide; they relate to trafficking into and out of the UK and therefore it is sensible for them to stay in the Sexual Offences Act 2003. The remainder of the offences now make up the proposed draft Order, comprising a total of 52 offences.

28. Therefore, 36 new offences from the Sexual Offences Act 2003 are being incorporated into this Order. The new offences are rape; assault by penetration; sexual assault; causing a person to engage in sexual activity without consent; those same offences regarding children under the age of 13; all of the offences against children under the age of 16; the familial child sex offences against children under the age of 18; the offences against persons with a mental disorder; the preparatory offences where the intent is to commit a sexual offence; and sex with an adult relative. Those are all offences that are law in England and Wales but not in Northern Ireland.

29. For interest, the Committee may like to know that those replace the current offences, which are the common law offence of rape; indecent assault; unlawful carnal knowledge of both someone under the age of 14 and someone under the age of 17; buggery; indecent conduct towards a child; prostitution of a child; all the old procuration offences; offences against women with mental-health problems — not men — and against mental-health patients; incense — sorry, I mean incest —[Interruption.]

30. Mr Wells: The Roman Catholic Church will be delighted about that.

31. Ms Patterson: The others are loitering and importuning for prostitution; bestiality; and many other lesser-used offences that I will not go into now.

32. That makes up the draft Sexual Offences (Northern Ireland) Order 2007. The only offences additional to those of the Sexual Offences Act 2003 are the prostitution offences, kerb-crawling, and soliciting for prostitution.

33. The draft Sexual Offences (Northern Ireland) Order 2007 is presented in several parts. Part 1 offers an introduction, and interpretation of, the draft Order. Part 2 deals with non-consensual sexual offences. Part 3 deals with sexual offences against children, and is sub-divided into offences against children under the ages of 13, 16 and 18.

34. Part 4 of the draft Sexual Offences (Northern Ireland) Order 2007 deals with sexual offences against persons with a mental disorder. Part 5 deals with prostitution and exploitation. Part 6 deals with miscellaneous sexual offences.

35. It is useful to know that only Part 2 deals with non-consensual offences. The remainder of the draft Order describes unlawful behaviour that is not dependent on proof that consent was absent. A large amount of the draft Order is designed to target abusive and exploitative behaviour against vulnerable groups.

36. I shall outline the parts of the draft Sexual Offences (Northern Ireland) Order 2007 in some detail, and try, briefly, to describe the major changes.

37. Part 1 is the introductory part of the Order. The major new legislation is the definition of consent, which will now be available to the courts. Consent is whereby a person agrees by choice, and has the freedom and capacity to make that choice.

38. Part 2 deals with the non-consensual offences, whereby lack of consent makes the behaviour criminal. That behaviour would not be criminal if there was not a lack of consent. Changes to the offence of rape will now include oral penetration, and will remove the defence whereby a person could avoid conviction for rape if he had an honest, but mistaken, belief in consent. The difference between the draft legislation and the current legislation is that that belief will now have to be “reasonable”.

39. Assault by penetration is a new offence that attracts the same penalty as that for rape. Therefore, that offence is considered to be as serious as that of rape. It provides, specifically, for serious assaults that involve penetration by something other than a penis. Currently, someone who has committed such as offence would be charged with the offence of indecent assault, for which the maximum sentence is 10 years imprisonment. Under the proposed legislation, that offence would attract a maximum sentence of life imprisonment. That demonstrates the seriousness of that type of behaviour.

40. Sexual assault is another new offence, which is a direct replacement for the offence of indecent assault. It attracts a maximum penalty of 10 years imprisonment. Causing sexual activity without consent is a further, new and serious offence. It attracts a maximum penalty of life imprisonment for penetrative acts and 10 years for other acts, which is a means of including other circumstances whereby the offender makes someone else perform a sexual act himself or herself, or with a third party.

41. The evidential presumptions, which can be applied to the issue of consent, are included in Part 2. If circumstances from a particular list are present, the court can presume that consent was not given — unless the defendant can offer evidence to the contrary. A narrow list of conclusive presumptions is also included in Part 2. Again, it is a list of circumstances that, if present, the court can presume that consent is absent. In that case, the defendant cannot raise the issue at all.

42. Part 3 of the draft Sexual Offences (Northern Ireland) Order 2007 provides for sexual offences against children. It differs from the current Sexual Offences Act 2003 because it attempts to provide a better explanation of how the offences against children work. First, as your researcher has explained, there are offences against children under 13 years of age that are the same as the generic, non-consensual offences — except, that consent will not be raised as an issue. There is no need to establish that consent was absent.

43. Those offences replace the current offence of unlawful carnal knowledge with a girl under the age of 14. That is very important, because the current offence is simply for sexual intercourse with a girl under the age of 14. All other sexual activity with children is currently dealt with by the offences of indecent assault or indecent conduct towards a child, with a maximum sentence of 10 years. As things stand, the penetrative offences would now warrant a maximum sentence of life imprisonment, and other conduct would attract a maximum sentence of 14 years. That represents a substantial increase of the sentences for those offences.

44. The second tranche of offences against children are the sexual offences that apply for all children under the age of 16. Those are new offences, which mean that all sexual activity with a child under 16 years of age is offending behaviour. That behaviour is repeated in various circumstances throughout the draft Order. It is broken down into sexual activity with a child; causing or inciting a child to engage in sexual activity; engaging in sexual activity in the presence of a child; and causing a child to watch a sexual act. Those are all specific offences designed to make it easier to make a charge stick.

45. Currently, all of those behaviours fall within the offences of unlawful carnal knowledge of a girl under the age of 17, indecent assault, or indecent conduct. There is a big difference, because the maximum sentence for unlawful carnal knowledge of a girl under the age of 17 or indecent assault of a girl under the age of 17 is two years. Indecent conduct towards a child attracts a maximum sentence of 10 years. The new offences increase that maximum penalty to 14 years, and that is a substantial difference. Moreover, that list of offences includes arranging or facilitating the commission of a sex offence. I heard the question that was asked of the researcher, but I cannot answer it at the moment. I will be happy to provide the Committee Clerk with a response, if that is acceptable. The offence of meeting a child following sexual grooming is already in place in that same part of the legislation for Northern Ireland.

46. The next section of that Part of the legislation concerns offences against children under 18 years of age. The offences concerning the abuse of a position of trust are already in the law in Northern Ireland. They involve the type of offending behaviour that I have just described, but they apply to situations in which there is exploitation of a position of trust with a child. Those might include children in a care home, in health care, in an educational institution, in a children’s home, or detained by order of the court in a young offenders’ centre. It is against the law to have any sexual activity with anyone under the age of 18 wherever a position of trust is established. That is an important point: those penalties apply to offences committed against anyone under the age of 18. There are exceptions in these sections and in the next particular section for spouses and civil partners, and for relationships which predated the formation of the position of trust.

47. The next section in that Part of the legislation deals with familial sex offences against children under 18. Those are new offences, which make it an offence to have any sexual activity with a family member under the age of 18, and have been expanded to include all relationships in which care is provided by someone living in the same household. That takes into account all sorts of extended family relationships, partners, foster parents, step-parents, to try to cover comprehensively offences in the home situation.

48. Offences related to preventing exploitation of children up to the age of 18 from abuse through prostitution and pornography abuse are already established in law in Northern Ireland.

49. Sexual offences against a person with a mental disorder are new offences for Northern Ireland. Such people are the other major group of vulnerable people that the Order targets with special protection. Currently, the Mental Health Order 1986 provides for offences against women with a mental disorder, or against patients in hospitals. The maximum sentence for offences in both of those categories is two years. At present, offences against people with a mental disorder are covered by broad offences, such as indecent assault, which require the court to address the issue of consent.

50. The new offences outlaw any sexual activity with a person who lacks the capacity to choose. It makes it criminal behaviour to use inducement to obtain sex with someone with a mental disorder. Similarly, it bans care workers from sexual activity with anyone in their care who has a mental disorder. With regard to people in a position of trust, for example care workers, it provides the same level of protection for people with a mental disorder as it does for people who are under 18.

51. The next Part is new, and deals with offences not covered by the Sexual Offences Act. This section on prostitution includes the new offences of soliciting and kerb-crawling, which have been included in the Order as a direct result of public concerns and a police request for legislation to deal more effectively with issues surrounding prostitution and public nuisance in one area of Belfast. It also re-enacts offences relating to the exploitation of prostitution, which were already law in Northern Ireland and have not changed.

52. Finally, Part six covers miscellaneous offences. New to Northern Ireland are the preparatory offences that can be charged if an offence has been committed and it can be proved that the intent was to commit a further sexual offence. Some such offences are already covered by Northern Ireland statutes, for example, there is an offence of burglary with intent to rape. However, the new section covers all sorts of criminal behaviour outside that. Intent to commit a sexual offence must be proved.

53. That Part of the Order also introduces the offence of administering a substance with intent to carry out a sexual offence. That is designed to deal with such situations as the use of the so-called date-rape drugs.

54. Also new in that Part are offences of sex with an adult relative. Those replace the current incest offences, which date back to the early part of the last century. All the other offences in that part are already on the statute book for Northern Ireland, such as voyeurism, exposure, sex with animals and so on.

55. That concludes my submission on the Order, and I am grateful to have had the opportunity to present it to the Committee.

56. The Chairperson: Thank you, the floor is now open for questions.

57. Mr Wells: I have a feeling of déjà vu, because you — or some of your staff — appeared before the Committee for the Office of the First Minister and deputy First Minister on the issue of transsexuals. During that meeting, someone from your staff — I am not sure who — proposed to bring legislation on transsexuals into line with that for gay people and lesbians. Exactly the same thing happened. You took the observations made by respondents, and you analysed them. Then you took the Christian Institute’s responses, which were much more detailed than anyone else’s, and you said that they were somehow different.

58. I notice that in ‘Reforming the Law on Sexual Offences in Northern Ireland: summary of responses to a consultation paper’ there is a whole analysis of 22 or 23 responses to each subject, at the very end of which there is a throw-away line saying that there were 4,000 responses from the Christian Institute. You have given half of a page — a couple of paragraphs — to the analysis of those responses. Those 4,000 responses are all from Northern Ireland people who have felt it necessary to write to the NIO on that subject. Am I not right in thinking that perhaps you have given less validity to those responses than to the other 22 or 23 responses?

59. Ms Patterson: One observation is that the 4,000 responses were all on the same issue.

60. Mr Wells: There were four specific issues.

61. Ms Patterson: There were four specific issues. The other respondents dealt with a range of issues, and the 4,000 respondents dealt with the document from the Christian Institute that covered those four issues.

62. Mr Wells: People look to their church or youth group on such issues, which, clearly, are of concern to people in Northern Ireland.

63. Ms Patterson: One example concerns sex in a public toilet. The Christian Institute’s lobbying document made the point that the NIO was trying to downgrade the offence of sexual activity in a public toilet; however, that is not the case. The consultation document simply suggested that it might be better to move that offence from one piece of legislation to another, because the offence is where the sexual activity happens, and not the activity itself. The legislation does not reduce the penalty, and it remains in the Draft Sexual Offences (Northern Ireland) Order 2007. In one respect, the issue has been dealt with in the way in which the Christian Institute wanted. Similarly, the legislation does not change the definition of a brothel; it remains the same.

64. Mr Wells: What about criminal law on underage sexual activity?

65. Ms Patterson: As we said from the word go in the consultation document, the legislation on those issues would be the same as that in England and Wales, unless evidence were provided to the contrary for Northern Ireland. No specific reasons were given to suggest that the Order should be different to the Sexual Offences Act 2003.

66. Mr Wells: Do you accept the principle on, for instance, abortion? The UK Government have decided that that legislation can be in keeping with the ethos of this part of the United Kingdom. For a long time, drink licensing in Northern Ireland has been different to the rest the United Kingdom. Are we in any way bound to follow slavishly the 2003 Act, or can we make decisions that we believe are in keeping with the general view of the Northern Ireland community, which might have a different threshold of acceptance of certain sexual activity?

67. Mr Johnston: The Committee is, of course, able to make any recommendations that it wants. My specific focus must be to consider the evidence around the issues in the draft Order. Perhaps it would be helpful if I were to set out some of the thinking that has led to the issue around the age of consent. As has been observed, it is not that the age of consent is a legal issue that is defined in a clause of the legislation; it comes about because of the phrasing of the offences.

68. First, we are conscious that the legislation concerns the age at which sexual activity is criminalised, not the age at which it is advisable, or at which the Northern Ireland Office would encourage activity. We simply consider the limits of the criminal law and whether there is due justification for having a different standard of criminal law, whereby people in Northern Ireland, as compared with the rest of the United Kingdom, could be prosecuted and sent to prison.

69. Secondly, research indicates that there is little or no correlation between the age of consent in various countries and the levels of teenage sexual activity. In the Netherlands, for example, the age of consent is 16, but it has one of the lowest levels of teenage pregnancy, and there are other international examples. In Northern Ireland, the age of consent is 17 and, alas, there is a significant level of teenage pregnancy. The criminal law in itself does not do much to encourage or discourage young people from having sex.

70. Thirdly, the provisions are clear about strengthening protection for children under 16, particularly those who might be at risk of exploitation from those whom they trust.

71. Finally, I want to put on record that there is already an exception to the age of consent at 17 in Northern Ireland, which is that young people can marry at 16 with their parents’ consent. Sexual activity in such a marriage is not unlawful carnal knowledge. Therefore, there is already a set of situations in which young people of 16 can legally engage in sexual activity.

72. Those considerations, particularly around criminalisation, lie behind the position that is taken in the draft Order.

73. Mr Ross: You mentioned that research on levels of teenage sexual activity shows that there is no correlation between that and the age of consent. What, therefore, correlates to the level of sexual activity in teenagers according to the research? It seems that if the law is liberalised — the age of consent lowered by even a year — it will send out a message to children that the law is reflective of what is already happening. Therefore, if there is a perception that 15- and 16-year-olds are engaged in sexual activity, it will put increased pressure on children to act their age and do the same. There are already other pressures on young people. What does the research suggest?

74. Mr Johnston: The two factors that seem to have most impact on that are first, the prevailing culture — which, I appreciate, is difficult to define — and secondly, good-quality sex education, support and advice. One of the usual measures in countries with lower levels of teenage pregnancy is that there are good sex education arrangements.

75. Ms Patterson: Consultation responses from organisations that deal with children were in favour of the courts having a similar age of consent throughout the United Kingdom. No evidence was put forward or support given for maintaining a higher age of consent than that of England, Wales and Scotland. The age under which it is illegal to have sex in the Republic of Ireland is still 17 years, as it is in Northern Ireland. However, that has been the age of consent in the Republic since 1950 and it is currently being reconsidered. The issue will be addressed within a couple of years.

76. Mr Wells: Surely, the Assembly should try to raise standards in society, rather than bring them down. The NIO’s logic is that if children of 14 years of age are involved in sexual activity, the law must be brought down to the level of current practice; rather, it should send out a clear signal that society does not want that to happen, that it wants to drive standards up, so that there is less sexual activity between unmarried teenagers.

77. Mr Johnston: It is not a lowest-common-denominator decision. It is about examining the evidence that has been presented to the NIO by organisations that work with children.

78. Mr Wells: It was supported by only 24 respondents out of more than 4,000.

79. Mr Johnston: I have commented on the range of responses. The evidence presented by organisations that are directly involved with children raises concerns that the law as it stands discourages young people of 17 years of age from seeking advice and support that might help them to be more responsible about their sexual activity. Those organisations believe that amending the law would be a positive step.

80. Ms S Ramsey: I want to return to that point shortly, Chairperson. The fact is that positive changes have been proposed in the draft legislation. That is to be welcomed, and I do welcome some of it. However, as the NIO is well aware, the Committee’s purpose is to bring forward the Assembly’s response to the consultation document. Therefore, my questions and comments are designed to tease out some of the issues, which will then be brought to the Floor of the House for debate.

81. I note that the matter is separate from sentences, 50% remission or victims. However, it cannot be looked at in isolation. You are involved in criminal justice, and you will take on board what the Committee has said when you return to your team. There is concern surrounding victims and sentencing. You referred to the maximum sentence for a, b, c, d and e, and that is welcome; however, there is an issue about the legal profession’s use of the proposed new law. Furthermore, we are well aware of the issue of 50% remission, and that, too, can be fed into your deliberations.

82. The two previous speakers dealt with consent and young people, and I note that there is a suggestion that you need to consult with young people. Has that happened? An equality impact assessment was referred to in your document. Has there been any movement on that?

83. Taking on board the issue of the sexual activity between young people — and I do not want to get into that discussion — I am concerned that, in some instances, we are dealing with professional predators who look for children under or over 13 years of age and who, at every opportunity, try to stay one or two steps ahead of the law, no matter what changes there may be to the legislation. I am concerned that some professional predators may groom a child and wait until that child is 13 years old. We have seen evidence where a person can sit and wait.

84. Has there been any formal work with the legal profession? We can make the best laws in the world, but there is ample evidence to show that when a predator goes to court, those laws are not enforced. However, there are a many issues in the draft Order that are a positive step forward and are welcome.

85. Mr Johnston: The Order focuses on the sexual offences and the law surrounding sexual offences. The criminal justice directorate is taking forward several initiatives and it has been consulting the Assembly separately on the new draft Criminal Justice Order 2007, which would end automatic 50% remission for all sentenced prisoners. There are particular provisions in the Order for dangerous, violent and sexual offenders, so that extended or indeterminate custodial sentences would be available where risk is assessed, and risk would be a deciding factor in how long such people stayed in prison.

86. The Order also contains much improved arrangements for supervision of offenders in those categories when they are released. We have consulted the Assembly, separately and in a different forum, on those provisions.

87. Ultimately, sentencing is a matter for the courts and, as a member of the Civil Service, I cannot comment on sentencing practices. The draft Criminal Justice Order 2007 will provide a wider and improved range of sentencing options to sentencers, and that is a step forward.

88. Ms S Ramsey: Has the legal profession been formally consulted on any of those proposed changes?

89. Ms Patterson: The guidelines and the implementation will generate most of the consultation on the Order.

90. Mr Johnston: We have regular meetings with the Bar and the Law Society, and we are looking at how we can strengthen the arrangements for those meetings. One of the issues we could raise with professional lawyers is how we can help with training or support as proposals go forward for implementation.

91. Ms Ramsey also mentioned concerns about professional predators and children aged 13. The rape offence is still available in cases where the child is aged 13 or over, and the definition of consent will be helpful in such circumstances, because it is very much a matter of free consent. One could see that, where an individual has groomed a child, it could be put that that was not free consent. Furthermore, sexual activity with a child would still attract a penalty of up to 14 years, even if non-consent could not be proved.

92. Ms S Ramsey: I am well aware of that, but I live in the real world, and my concern is that professional predators can fill the head of a young girl aged 13 or 14 with everything. She might get carried away and say that she has given her consent, but, ultimately, the predator has groomed her.

93. Mr Johnston: Even with consent, a penalty of up to 14 years would be available, which is an extension of the penalties that are currently available.

94. Ms Patterson: When this provision was passing through Westminster in the Sexual Offences Act 2003, there was a lot of discussion about whether the age should be set at 13. The reason is that, below that age — below puberty, really — it was accepted that there is absolutely no way that a child could in any way consent to the activity. However, there are occasions — and this point was made at the time — when a person could be convicted of rape when a 13-year-old had, in fact, made the person think that he or she was older, or that consent was given. That was the real reason that the age was set at under-13.

95. Mr Johnston: Ms Ramsey also asked about consultation and equality impact assessments.

96. Ms Patterson: We are still working on the issue of consultation with children. This legislation is not a particularly easy matter on which to consult with children. In the new year, we hope to have a round-table discussion on this legislation with some of the relevant organisations.

97. Mr O’Loan: As I understand it, this criminal legislation, and its fundamental purpose is to protect vulnerable people in our society from certain offences, taking particular account of age and mental disorder. I very much agree with Sue’s point about the need to have a victim-conscious criminal-justice system; however, I accept the point that this legislation might not be the vehicle for ensuring that there is a very victim-centred process. Nonetheless, it is a very important issue.

98. At the core of this legislation is the protection of the vulnerable, but we must be alert to the broader social effects of any piece of legislation. Were we to become concerned that it might have bad effects, such as higher levels of teenage pregnancy, we would have to take that very seriously. At the moment, I do not envisage that it would necessarily have such effects; however, my stance is that our general approach must be to listen to all the arguments.

99. Can you clarify one point? For children aged between 13 and 16, what are the consequences of this legislation with regard to consensual activity that involves sexual intercourse and consensual sexual activity that does not?

100. Ms Patterson: All such activities are illegal. Sexual activity encompasses penetrative and all other sexual activity. Therefore, it is illegal to have any sexual contact, touching or activity with anyone under the age of —

101. Mr O’Loan: For two persons aged between 13 and 16, it is —

102. Ms Patterson: It is illegal. The difference is that there is a lesser penalty. For someone over the age of 18, the maximum penalty is 14 years in prison, and, for someone under the age of 18, the maximum penalty is five years. The regulation of this in England and Wales is based on guidelines used by the Crown Prosecution Service, which ensure that prosecutions are not taken in situations in which there has been fully consensual sexual activity between teenagers.

103. Mr O’Loan: To be absolutely clear, it is illegal for two persons aged between 13 and 16 — that is, 13, 14, or 15 — to be involved in sexual intercourse, and that is punishable by a sentence of five years.

104. Ms Patterson: Five years for both the boy and the girl. That is what the draft Order says.

105. Mr O’Loan: What if they are involved in sexual activity that does not involve sexual intercourse?

106. Ms Patterson: The same.

107. Mr O’Loan: Many of us would think that that is not the point of this, or any, sexual offences legislation.

108. Ms Patterson: Correct.

109. Mr O’Loan: If the only protection against taking such prosecutions is to apply some degree of common sense, we must carefully consider the terms that will frame the legislation.

110. Ms Ramsey: A complaint must be made in order to commence proceedings.

111. Mr Jim Strain (Northern Ireland Office): Such a decision would not be based on common sense. The Crown Prosecution Service has guidance on when to prosecute, and a prosecution must be in the public interest. Therefore, applying those criteria to the case of two 16-year-olds — boyfriend and girlfriend — who have undertaken completely consensual sexual activity, may or may not result in a prosecution. However, rather than being a matter of common sense, it would be a matter for the prosecuting authorities.

112. Mr O’Loan: Are we talking about 13, 14 and 15 year olds?

113. Mr Strain: Yes.

114. Mr Johnston: The problem is that if one attempts to stipulate in legislation what is or is not criminal behaviour in children under 16, one is left with two choices. One might point out that the legislation deems such practices to be illegal, and rely on detailed guidelines to determine which cases are prosecuted; or, those guidelines could be incorporated into legislation, bearing in mind that hard cases make bad law and that it is difficult for legislation to cover every case. If we were to attempt to do that, our fear is that some clear cases of criminal behaviour would slip through the net. That is part of the reason we prefer a blanket-ban arrangement that would include clear guidelines for prosecutors, as is preferred in England and Wales.

115. Mr O’Loan: It is clear in your answer, and is something for us to reflect on.

116. Mrs Patterson: We tried our best to find different ways to incorporate those prosecution guidelines into law, and several proposals and suggestions are in the consultation document. Most people did not —

117. The Chairperson: Is there a potential problem with a situation in which both partners had been aged 16 and one has a birthday, thereby crossing a threshold and, although carrying on the same activities, is deemed to be committing a more serious criminal offence?

118. Mr Johnston: Potentially yes. Then again, in such situations, one would rely on the prosecutors’ discretion.

119. Mr Strain: When I said age 16 I meant it, because that is how the law currently stands.

120. Mr O’Loan: I understand that. I was talking about the proposed legislation, which is why I used those ages.

121. Mr Strain: It operates exactly the same way now in respect of those ages.

122. Mr O’Loan: I take your point.

123. The Chairperson: I have a few questions; then we can have a second round, because members want to come back on some points.

124. Sue Ramsey raised a point, but it was not picked up, on screening out equality impact assessments. What was the rationale for that?

125. Mr Stephen Cowan (Northern Ireland Office): In conjunction with advice from a Queen’s University Belfast academic, who advises the Equality Commission for Northern Ireland, we carried out a screening exercise because the issue had been raised. We screened the review, and were content that, in doing so, we gave everyone who could be impacted by the review that an equal opportunity to comment.

126. Towards the end of the consultation, when the responses have been seen, we intend to do a similar screening exercise on the legislation. Then, we will revisit whether the screening is sufficient or if we need to look at a full impact assessment. We screened the review and are content that it has sufficiently engaged all of the necessary section 75 groups without having to do a full impact assessment. We will screen the proposals again towards the end of the consultation.

127. The Chairperson: With regard to screening and the Human Rights Act 1998, where is the balance between the freedom of people to engage in activity and the right to protection from inappropriate activity?

128. Mr Johnston: We must have cognisance of human-rights standards. I agree that there can be a conflict between those in certain situations. Our assessment, as well as the work that was done in the run-up to the 2003 legislation, shows that there is a fair balance between those rights.

129. The Chairperson: In what direction is the debate heading in other European countries? Is the age of consent stabilised at 16 years in most of them, or are there some — apart from the Republic of Ireland — where it is 17 years?

130. Mr Johnston: We have figures that demonstrate the range of positions in Europe.

131. Ms Patterson: The age of consent is 13 years in Spain, 14 years in Italy, 16 years in the Netherlands, 15 years in Denmark, 16 years in Finland, 14 years in Austria and 17 years here and in the Republic of Ireland. As far as I am aware, there is no European movement to change those.

132. Mr Cowan: The European Commission has concentrated its efforts on co-operation and ensuring that the protection that individual law in member states seeks to provide is extended to deal with, for example, people who are disqualified from working in educational establishments. It is a difficult area with the variety of ages of consent and laws on sexual offences. The focus of the European Commission and member states has been on the ensuring that the law of each member state is recognised, rather than harmonising the age of consent.

133. The Chairperson: In relation to Mr Wells’s earlier point, are there any extra-territorial implications of the legislation? If so, how will they be applied?

134. Ms Patterson: Article 77 deals with extra-territoriality, but to be prosecuted here it must be an offence in the country in which it was committed, as well as an offence here. We are aware that amendments to the Criminal Justice and Immigration Bill are likely to be, if they have not already been, tabled in Westminster that will end the need for dual criminality. That will mean that if an offence is an offence in this jurisdiction, it can be prosecuted here.

135. The Chairperson: Therefore, for example, if a predator takes a child on holiday to Spain, where the law is poor on the issue, can the protection of this jurisdiction be added?

136. Ms Patterson: Yes; it can.

137. Mr Cowan: That is an example of the European dimension: European influence is bringing about that change.

138. The Chairperson: Does that broad approach lend itself to harmonisation as far as possible across the European Union to avoid anomalies emerging?

139. Mr Johnston: The issue of harmonisation of criminal law across the European Union is a sensitive one. As Mr Cowan has said, the focus has been on ensuring that the protection of children and vulnerable people across the EU is as harmonised as possible.

140. The Chairperson: With regard to current law enforcement, you said earlier that prosecutions are taken forward only in the public interest. However, there have been many instances in which the law has been clearly broken, and teenage pregnancies are a clear manifestation of that. How often are cases pursued in our courts under current law? Have there been any prosecutions, or perhaps just a handful?

141. Mrs Patterson: There have probably been only a handful. I do not have the statistics to hand.

142. Mr Johnston: If it would be helpful we will provide those statistics to the Committee in writing.

143. The Chairperson: What is the threshold for a complaint for a case to be taken forward under the law at present?

144. Mr Strain: Do you mean when a prosecution would take place?

145. The Chairperson: If two underage people are engaging in sexual intercourse, does the law require that a complaint be made by one of the parties concerned, or must it come from a third party?

146. Mr Strain: A third party could complain. It is most likely that a complaint would be made to the police by a parent. The police would investigate and send papers off to the Public Prosecution Service, which would test whether the evidence had more than a 50% chance of conviction, and whether it was in the public interest for the prosecution to take place. The circumstances surrounding an incident and the ages of the young people concerned are two of the criteria that are taken into account when determining the public-interest requirement. There might well not be a prosecution in the case of two 16-year-olds who were clearly perfectly content with what had happened.

147. The Chairperson: It often happens that a 17-year-old would get a 15-year-old pregnant and there is clear evidence that an offence has taken place. Is that aspect taken into consideration?

148. Mr Strain: I am not a prosecutor: it is difficult for me to predict what might happen in a particular case. However, the prosecution would have the latitude to make the decision whether or not to prosecute, depending on all the surrounding circumstances of the case. There are cases in which it would clearly be right to prosecute, others in which it would not, and some in the middle around which difficult decisions would have to be made.

149. Ms S Ramsey: I want to explore the point about people making a complaint. Will the guidelines that apply to the Public Prosecution Service also apply to the PSNI? I do not want to get into the rights and wrongs of an incident, but I can see a situation in which a complaint is made to the PSNI against two 15-year-olds, for whatever reason, and both are guilty under the proposed law. The PSNI go in with all guns blazing, and that causes bigger problems. We have seen that happen when complaints have been made about other issues. It might be useful if the PSNI were given those guidelines to help them approach situations involving people under the age of 16.

150. Mr Strain: The force will have a policy on that. The difficulty for the police is that if someone reports a crime to them, they must investigate it. They do not have discretion in that regard. The police no longer prosecute, as I am sure you are aware. The only mechanism available to the police is to deal with the complaint, investigate it, and act appropriately. If there is no evidence, they will do nothing.

151. Ms S Ramsey: I understand that. My concern is that the PSNI may become the piggy in the middle. If, for example, two 15-year-olds are guilty under the proposed law, and one party makes a complaint, the police must investigate it. The other party could then make a complaint, and the PSNI may become caught between the two.

152. Mr Johnston: I understand your point.

153. Mrs Patterson: We have yet to grapple with the implementation of that part of the legislation. It is a valid point.

154. Mr Johnston: It is.

155. Mr Cowan: There are Area Child Protection Committee (ACPC) procedures for child protection and a joint protocol for the police when working with social services in the investigation of that sort of activity. The legislation does not alter how the police and social services work together in trying to deal sensitively with those issues.

156. Mr Wells: The Committee welcomes most of this legislation, as I am sure the Assembly will when the Committee publishes its report. However, there is nothing to stop us from learning from any difficulties or problems with the implementation of the Sexual Offences Act 2003 in order to raise standards in Northern Ireland above those in the rest of the United Kingdom.

157. I have just remembered that we discussed with Paul Goggins, not OFMDFM, the case in Downpatrick of which everyone is aware, and another case in north Belfast, to which Sue Ramsey referred. The NIO does have the power to create offences in the draft Order: it is not that what the courts eventually do is completely without control, because penalties can be set. Can anything be included in the legislation to avoid a recurrence of what caused us great concern in both cases, when the PPS decided that the offences were not indictable and could not, therefore, be reviewed by the Attorney General?

158. Mrs Patterson: Yes, in practice something could be included in the legislation. The problem with taking away the choice is that it usually applies to offences that have a wide range of offending behaviour, and to change that would remove the option to deal summarily with a less serious case.

159. Mr Strain: Perhaps I can assist you on this, Mr Wells. The particular case that you mentioned was tried on indictment, and the offender received a four-year sentence.

160. Mr Wells: It was only two years.

161. Mr Strain: He received a four-year sentence, although some was served on probation, but he was tried on indictment. His particular offence can be tried either way, which means that it could have been tried summarily. The offence seemed to be sufficiently serious for that not to be the case, and he was tried in the Crown Court. Unfortunately, if one takes the view that the penalty was too lenient, that particular offence does not allow prosecutors the right of appeal.

162. Mr Wells: My point was that this was his third, and incredibly serious, offence. We cannot understand the mechanism that allowed the Public Prosecution Service to select a mode of trial that did not allow the sentence to be appealed.

163. Mr Strain: The PPS selected the most serious mode of trial. What more could it have done?

164. Mrs Patterson: The case was tried on indictment.

165. Mr Wells: Yes, but there was no mechanism whereby the Attorney General could review that sentence. You made it clear that the sentence could not be touched.

166. Mrs Patterson: Yes, but that is because it is not included on the list of offences that can be tried in either mode and can be referred.

167. Mr Wells: How can that type of offence be added to the list to allow the sentence to be reviewed?

168. Mr Johnston: If the Committee wants us to examine how that can be done, we will do so.

169. Mrs Patterson: At the end of the last meeting, Paul Goggins said that he would seek to talk to the Attorney General about that.

170. Mr Wells: It is the type of crime that will undoubtedly provoke calls from the public who are outraged when such short sentences are handed out. The same outrage was felt at the north Belfast case, when the judge’s final remarks were appalling. You cannot comment on what he said, but I will. The judge said that he did not consider that the victims would suffer any long-term effects from the paedophilic activities of the gentleman concerned.

171. Such cases cause an outcry, and the public want a remedy. Such outrage is more likely in that type of case than in any other, and it is appalling for people to be told that the legislation does not allow for an appeal.

172. I also sit on an Ad Hoc Committee that deals with the review of criminal justice. Perhaps through it, through this Committee or through further analysis, we can at least achieve a means whereby clear travesties of justice can be re-examined. The public would, quite rightly, demand an extremely punitive sentence for a third offence, particularly given the nature of the offence.

173. That did not happen in that case, hence the nightmare that we will face in April when the offender will be released.

174. I want to emphasise just how strongly people in my constituency feel about what happened, and my colleague from North Belfast feels the same about what happened there. I am pleased that the issue can be considered. We want to see whether we can do anything to prevent such an unfortunate situation happening again.

175. Mr Johnston: Mr Wells has made a clear point, and we will certainly examine the matter.

176. Mr Wells: One other point is that you talked about England and Wales, but what about Scotland? All your references were to England and Wales, but there is greater linkage between Northern Ireland and Scotland.

177. Mr Cowan: The age of consent in Scotland is 16. I have limited understanding of Scottish law, but, traditionally, it has been framed in a broader format to that which we use here, which tends to mirror the law in England and Wales. The law in England, Wales and here tends to be definitive in how it is set out, for example, by saying that if a person does x if he or she does y. It defines certain parameters within that. Scottish law tends to be framed more broadly, allowing the courts more room for interpretation. That is a tradition of the development of Scottish law. Although it covers the same offending activity that we seek to cover — and we seek to cover no activity that is not captured in Scottish law — it is framed in a slightly different way. Much of Scottish law is not codified, and the Scottish Law Commission has been engaged for several years in examining its codifying. That will include many of the old sexual offences laws, and we understand that the Scots will follow a similar pattern to the one that we seek to follow here.

178. The Chairperson: Thank you.

179. Mr O’Loan: I want to ask about two matters. First, in relation to the offence of persistent soliciting, I wonder whether the use of the word “persistent” weakens the provisions. Would make it harder to successfully prosecute an offender, if persistent soliciting must be demonstrated? That concerns me.

180. Ms Patterson: That is a direct lift from the offences in England and Wales.

181. Mr O’Loan: What does the word “persistent” mean? I have not read the explanatory memorandum.

182. Ms Patterson: It means more than once.

183. Mr O’Loan: That requires the police to keep considerable records to ensure that they can prove persistence. It creates a grey area and makes it more difficult to achieve the intended outcome.

184. Mr Johnston: As Ms Patterson said, we are going by what has been done in England and Wales. To clarify the definition, “persistent” means two or more occasions; it does not mean that the offender must have done it six or 12 times.

185. Mr Strain: The principle offence of loitering or soliciting for purposes of prostitution is dealt with in article 58, and that has been added on.

186. Mr O’Loan: We must examine how the two matters link.

187. Mr Strain: Article 58 is the prostitution offence, and article 60 deals with persistent soliciting.

188. Mr O’Loan: Secondly, there is the clause about sexual intercourse involving animals. I was surprised to see that included. It is unique. I wondered about the necessity of including it. Is the issue one of scandalising public decency? I would have thought that a public decency issue would be covered by other legislation.

189. Mr Johnston: I am not sure that it is an entirely new issue, because there would have been animal offences and bestiality previously —

190. Mr O’Loan: That is not quite what I mean. It seems to be unique in this piece of legislation.

191. The Chairperson: If I may intervene, some of the documentation seems to question whether that sort of issue might be best addressed through animal welfare legislation, sexual offences legislation or a combination of the two.

192. Mr O’Loan: What is the rationale behind the inclusion of that at all?

193. Mr Johnston: I agree that that is in the sexual offences legislation because of the point about public decency. There is a long history of bestiality offences being included in sexual offences legislation. It is valid to consider where the balance lies between animal welfare and public decency. The legislation takes the lead from that of England and Wales.

194. The Chairperson: In practice, there is an argument for taking the opportunity to define it in this legislation. It may well be addressed by animal welfare legislation on another occasion, but if such measures are required, this may be the most appropriate vehicle for addressing that in the short term.

195. Ms S Ramsey: We must be careful not to lower the threshold of sexual offence. If that crime becomes part of animal welfare legislation, the threshold could be lowered.

196. Mr Johnston: I am not an expert on animal welfare legislation, but it has just been confirmed to me that if a crime were committed under the sexual offences legislation, it would also be illegal under the animal welfare legislation.

197. The Chairperson: That is a good point. I thank the officials from the Northern Ireland Office for their useful presentation; we got a lot out of it. Hopefully, you will reflect on the Committee’s responses ahead of our formal report through the Assembly. I take it that we can call upon you for further clarification, should we need it, either in written correspondence, or through further oral evidence.

198. Mr Johnston: By all means. Thank you for the opportunity to give the briefing and answer questions.

8 January 2008

Members present for all or part of the proceedings:
Dr Stephen Farry (Chairperson)
Mr Mickey Brady
Rev Dr Robert Coulter
Mrs Dolores Kelly
Mr John McCallister
Mr Declan O’Loan
Ms Sue Ramsey
Mr Alastair Ross
Mr Jim Wells

Witnesses:

Mr Avery Bowser
Mr Martin Crummey
Mr Colin Reid

National Society for the Prevention of Cruelty to Children

Ms Margaret Kelly
Ms Jacqui Montgomery-Devlin

Barnardo’s

199. The Chairperson (Dr Farry): I welcome Colin Reid, Martin Crummey and Avery Bowser from the National Society for the Prevention of Cruelty to Children (NSPCC), who have provided the Committee with a written submission.

200. Mr Martin Crummey (National Society for the Prevention of Cruelty to Children): I thank the Committee for the invitation to present in more detail some of the issues that we have been involved in regarding the draft sexual offences Order. I am the director of NSPCC in Northern Ireland, Avery Bowser is assistant director regarding services for children, and Colin Reid is our policy and public affairs manager.

201. NSPCC welcomes this draft legislation and is supportive of many of its provisions. As many of you will be aware, NSPCC has campaigned to ensure that children and young people in Northern Ireland receive the same level of protection that children in England and Wales have under the Sexual Offences Act 2003. However, we do have some concerns about aspects of the draft Order and we welcome the opportunity to elaborate on those concerns. We believe that addressing these in the legislation will further enhance the protection and safety of young people in Northern Ireland.

202. We have some concern about the relationship between this draft legislation and section 5 of the Criminal Law Act (Northern Ireland) 1967, which deals with the requirement to report crimes. We also believe that there is a need for policy and guidance to ensure that children can seek help in relation to sexual-health matters. We are concerned about the exclusion of sports coaches from the articles relating to the abuse of trust. Furthermore, we believe that amendments are required regarding the sentencing tariffs for certain provisions. Finally, we are concerned about the absence of any reference to children and young people who sexually harm others.

203. Mr Colin Reid (National Society for the Prevention of Cruelty to Children): I refer the Committee to paragraph 7 of the society’s written submission. I want to deal with two elements of the sexual activity of children about which the society is particularly concerned.

204. This legislation was introduced at Westminster as the Sexual Offences Act 2003. We are effectively getting sections 1 to 14 of that Act within this draft Order, as well as a codification of all sexual offences law. The UK Government tried to work out how they should deal with the issue of young children engaged in consensual sexual activity. They introduced a scheme that lowered the tariff and brought all children into the scheme; however, they then ensured that the Crown Prosecution Service had clear guidance to ensure that consensual sexual activity between older children would never be prosecuted. If Members refer to article 20 of the draft Order, they will see that that is how it is being dealt with here.

205. The problem is that section 5 of the Criminal Law Act (Northern Ireland) 1967 requires the reporting of an arrestable offence. The way in which article 20 of the draft Order works is that where two young children engage in consensual sexual activity of any description, each is both the victim and the perpetrator. In many circumstances, it will be completely inappropriate to prosecute their offence, but the effect of having the 1967 Act in the background is that it creates a duty to report an arrestable offence to the police. At its most extreme, a teacher who sees two children kissing behind the bike sheds is, technically, under a duty to report. I use that as an extreme example.

206. We raised that issue with the Northern Ireland Office; we said that we were very concerned about section 5 of the 1967 Act and that we would be looking for very clear guidance for both the police and public prosecutors in dealing with that sort of case, once the Order has become law. The police are also concerned: it places them in a position of having to investigate innocent activity — if I may put it like that — that will clearly not be prosecuted. Therefore, we want to see some movement; we think that it is impossible to implement this provision without tweaking the existing legislation.

207. Under the draft Order there is greater protection for children who are very young — under 13 years of age. The removal of the consent defence in such cases is a good thing. For any individual to have sex with a child under 13 will be rape. However, there is a balance: as in England, there are proposals to allow doctors and health visitors to provide contraceptive advice. The balance is between ensuring that children get health treatment when they need it, and ensuring that they are protected. We are concerned that the Order has been drafted almost in a vacuum. No discussions have been held between Government Departments as to how it should be implemented, and there is no clear understanding in Departments about how it will work. For example, the Department of Health has said that children under 14 years of age who are seeking contraceptive advice should normally be reported to social services. Section 5 of the 1967 Act is the rationale for that. We understand why that might be the case: however, our concern is that it will stop children seeking access to contraceptive advice, which will not help to deal with the high teenage pregnancy rate.

208. Therefore, the balance in the legislation needs to be addressed. We have said to the NIO that there is a need for a round-table discussion between the various Departments. On the foot of this legislation, we need clear guidance for all professionals working in the area, so that they know how to provide treatment and advice, and, more importantly, so that they refer children to social services for protection when that is necessary. We are concerned that there have been very few referrals for very young children.

209. The third issue that we want to raise relates to abuse of trust. The draft Order repeals and re-enacts provisions that are in place. It provides that the Secretary of State can extend the abuse of trust provisions to include other professions. At present, a residential worker in a children’s home who has consensual sexual relations with a 17-year-old child is breaking the law. It is a serious criminal offence, notwithstanding the fact of consent. The intention is to protect children who, in certain circumstances, would be vulnerable in such a case.

210. We have said repeatedly that in Northern Ireland — and nationally — we would like to see sports coaches brought under the definition of abuse of trust. There are a substantial number of examples, both in Northern Ireland and nationally, of coaches who have abused the position of trust that they have by virtue of the nature of their job and had relationships with vulnerable children over the age of 16. We have recommended to NIO that the definition of abuse of trust be extended to sports coaches, and we recommend that measure to the Committee.

211. Mr Avery Bowser (National Society for the Prevention of Cruelty to Children): Paragraph 14 of our submission also deals with children who sexually harm other children and, in some cases, adults. The draft Order defines sexual relationships between children under the age of 18. Therefore, we were particularly disappointed that neither the consultation nor the Order considered any aspect of sexually harmful behaviour by children, and how that should be dealt with. Such consideration is particularly important because research clearly shows that a large number of sex offenders begin offending when they are children. The research also shows that interventions at that age are important and effective.

212. It should also be remembered that a large number of the children who engage in sexually harmful behaviour are themselves victims to start with. A host of treatment issues can be considered for those children, in terms of both their own victim experience and effective treatment to prevent them from continuing to offend into adulthood. The arrangements in the draft Order are a sharp contrast with the arrangements under multi-agency sex offender risk assessment and management (MASRAM), where there is much clearer guidance and much more money is available to deal with those issues.

213. We also wish to highlight the role of the Public Prosecution Service. Mr Reid mentioned the way that the CPS had issued guidance in England, particularly considering the long-term consequences of conviction on a 14-year-old or a 15-year-old when an offence is scheduled. In our response to the consultation, we made two specific recommendations to NIO in that area.

214. First, we recommended that the proposed Order contain provision for the Secretary of State to issue mandatory guidance in the form of a prosecution protocol setting out the processes and considerations for making informed prosecution decisions. That should also include the use of diversionary youth conferencing arrangements, which are unique to Northern Ireland. In some respects, there is tension between the road that we have gone down of diverting all young offenders, including those who may have committed sex offences, through the option of youth conferencing. The draft Order has not addressed that tension in any way.

215. Secondly, the guidance from the Department of Health, Social Services and Public Safety (DHSSPS) on dealing with sexually harmful behaviour is fairly weak. The co-ordination between agencies is often poor, and we would like work to be done on the revision of ‘Co-operating to Safeguard Children’ to beef up that area substantially.

216. Finally, we have spotted a slight sentencing anomaly in articles 37 to 40 of the draft Order. It creates the unusual position that a person who paid for sex with a child under 13 would potentially be liable to life imprisonment, but the person who incited and controlled that act through child prostitution would only be liable to a maximum sentence of 14 years. That is a bit odd, particularly if it involves a child of, say, 10 years old, who has been controlled in a situation of prostitution. The Committee might want to consider that, and we have urged the NIO to consider that issue. Thank you for your time.

217. Mr Wells: That has been very useful. You have teased out some important but obscure issues that would not have been obvious to everyone who read the legislation. I presume that you have had contact with the NIO and raised those issues with it?

218. Mr Reid: We have had discussions with the NIO. We were to meet Minister Goggins, but he was diverted elsewhere and we met his officials. The NIO cannot introduce legislation in the absence of discussions with other Government Departments about its implementation. The responsibility for implementing such legislation will lie mainly with the Department of Health.

219. Mr Wells: During that consultation, did anyone say, “It’s a fair cop, we did not spot that; we will change it”, or will it require a bit of effort by this Committee to try to get those changes made?

220. Mr Reid: Your second point is well made, Mr Wells. We have asked repeatedly for a round-table discussion between all the players in this area, particularly on how we deal with young children who seek contraceptive advice. There is no commonality of views between Departments at the moment.

221. Mr Wells: There is an obvious disparity between the prison term handed down to a person who promotes sex with a 13-year-old and that given to a person involved in such an offence. That must be a mistake.

222. Mr Reid: Those sentences follow from what is in the Home Office’s Sexual Offences Act 2003. From the discussions that I have had with NIO officials, it is my understanding that they are interested in the Committee’s view on that point, and that if it is made to them, they will go back to the Home Office about it.

223. Mr O’Loan: I have a question about children who sexually harm other children. You referred to the situation in which sexual activity between children aged between 13 and 16 is, prima facie, an offence under this legislation, and you illustrated the problems around the obligation to declare that activity if it is observed by someone in a position of authority. We asked the NIO officials why that kind of sexual activity remained an offence, and the reply was that there was no form of words that would exclude that kind of activity, which no one wants to pursue through the courts, while also guarding against other cases in which harm is being done to a child. Can you explain in more detail why that does not give adequate protection to children?

224. Mr Reid: You are quite correct. That matter was the subject of a lengthy debate in Parliament when the equivalent provisions were scrutinised at Westminster. The measure is there to protect children when they need to be protected, but the way in which the threshold has been lowered scoops up all children, whether victims or perpetrators. A large percentage of those children will be neither victim nor perpetrator, because it is normal, consensual activity between children. There was a lengthy debate in Parliament about how to deal with that. This scheme does protect children, but there is an added problem in Northern Ireland around section 5 of the 1967 Act, which creates the requirement to report. The police have said that they have to investigate such matters, even though they know that no prosecutions are going to result.

225. Mr O’Loan: Are the guidelines not the secret here? The guidelines could rule out prosecutions where common sense dictates otherwise, but provide that, if there is an indication that harm has been done to a child, the legislation provides the remedy.

226. Mr Reid: That is correct. The explanatory document that accompanies the draft legislation shows that that would be the case. However, that relates to the Public Prosecution Service. Our concern is what happens prior to getting to that situation. The police have told us that they would still feel duty bound to investigate.

227. Mr Bowser: From a practice perspective, social workers, GPs, teachers and police officers discuss such cases every day. In my own experience from years ago, we would have discussed situations in which children were clearly engaged in sexual activity, and we would have had to come to a judgement about whether such activity was harmful or exploitative, or experimentation. This legislation is quite a blunt instrument. Our concern is, as Mr Reid has said, that all the relevant Departments should be involved. It is not just a criminal justice solution; the guidance must be in place so that everyone is working in the same direction.

228. Mr O’Loan: The Committee’s primary focus is on the legislation and whether it requires changes. That will throw up other issues on which we will seek advice from other agencies. Let us be clear: are you saying that this legislation requires some changes, or are you saying that broader advice must be given to the relevant bodies on how to deal with this issue?

229. Mr Reid: The NSPCC thinks that the proposed legislation cannot be implemented in its present form The Department of Health and the police must provide guidance on how to deal with the matter. We must ensure that section 5 of the 1967 Act does not apply to this particular provision, because of the problems that it causes.

230. Ms S Ramsey: At the Committee’s last meeting, prior to the Christmas break, we had a useful evidence session with representatives from the NIO. I was struck by a number of issues at that meeting. First of all, I agree totally with Mr Reid that there is a lack of joined-up thinking. Although the NIO is outside the remit of the Assembly, nothing can be done with regard to a number of those issues without the assistance of the Departments of Health and Education. At that evidence session, it was agreed that the NIO would return to the Committee with answers to specific questions. It would be useful to get those answers as quickly as possible.

231. When the draft strategy was first announced, there was a press release saying that the NIO had worked with the NSPCC and Barnardo’s. Someone mentioned that in a radio interview. If we want to get the matter right, we should get it right from the start. Can Mr Reid give any reasons why the NIO is not taking the suggestions of the NSPCC and Barnardo’s on board? He has highlighted the fact that, for example, a person who controls the exploitation of a 10-year-old stands to receive a lesser sentence than someone who has actually paid to take part in it. That is a big issue.

232. One of the issues that we raised at the last meeting was that, for example, if two 13-year-olds are involved in sexual activity, then each is both victim and perpetrator. The Committee is concerned that the PSNI will be caught in the middle of all of that because, if a report is made, the PSNI view it as a crime to which it must respond. In the case of the two 13-year-olds, each can report a crime. Does Mr Reid have any idea, or can the Committee find out, where that matter sits at present? The Committee’s deadline is only a few weeks away. I am concerned that when we reach that deadline there will have been no progress on the matter.

233. The Committee Clerk: The NIO will return to the Committee to make a presentation next week. I understand that representatives from the NIO are present at today’s meeting, so we may be able to get answers to some of the questions before next week. That matter is in train.

234. Mr Reid: We have said nothing today that we have not already said to the NIO. We had a discussion and, again, raised the need for cross-departmental meetings, and meetings with other stakeholders, about the implementation of the proposed legislation.

235. Mrs D Kelly: Mr Reid’s presentation was most helpful. There may be an opportunity to impact on the cycle of abuse; I am interested in the NSPCC’s comments on the lack of services for dealing with child sex offenders who may continue to offend in their adulthood. In what way does the NSPCC envisage the legislation being implemented, or improved, in order to help prevent that cycle of abuse? How would those services be delivered?

236. Mr Bowser: The important issue, for the NSPCC, is the prosecution protocol and joining up with the restorative elements that have been implemented in Northern Ireland and which are unique. We had problems with that one because of the success of the youth conferencing service. Previously, we had been in discussion with the NIO about what happens when one has to deal with sex offenders; it is not the same as doing restorative work with regard to burglary or car theft. I am conscious of Mr O’Loan’s comments about focu