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Minutes of Evidence - 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 ) Northern Ireland Office 
Mr Gareth Johnston ) 
Ms Amanda Patterson ) 
Mr Jim Strain )

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.

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.

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.

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?

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.]

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

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

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.

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.

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.

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.

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.

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.

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”.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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

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.

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?

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

Mr Wells:
There were four specific issues.

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.

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

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.

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

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.

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?

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.

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.

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.

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.

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.

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

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?

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.

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.

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.

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.

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

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.

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.

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.

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?

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.

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.

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.

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.

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.

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

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

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.

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.

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.

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.

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.

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

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.

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.

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.

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?

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 —

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

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.

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.

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

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

Ms Patterson:
The same.

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

Ms Patterson:
Correct.

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.

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

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.

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

Mr Strain:
Yes.

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.

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

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 —

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?

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

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

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

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

Mr O’Loan:
I take your point.

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

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

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.

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.

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?

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.

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?

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

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.

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.

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?

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.

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?

Ms Patterson:
Yes; it can.

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

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

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.

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?

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

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

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

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

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?

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.

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?

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.

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.

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.

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.

Mr Johnston:
I understand your point.

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

Mr Johnston:
It is.

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.

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.

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?

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.

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.

Mr Wells:
It was only two years.

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.

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.

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

Mrs Patterson:
The case was tried on indictment.

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.

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.

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

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

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

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.

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.

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.

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

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.

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

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.

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.

The Chairperson:
Thank you.

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.

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

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

Ms Patterson:
It means more than once.

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.

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.

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.

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

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

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.

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

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

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.

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

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.

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.

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.

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.

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.

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

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