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

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://archive.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:

  • All offences will be gender-neutral and, in the main, consensual sexual activity between adults in private will not fall within the criminal law.
  • All non-consensual sexual activity and sexual activity involving children and other vulnerable groups will be criminalised and attract appropriately robust sanction.
  • There will be clearly defined offences.
  • The Order puts children and young people at the centre of the proposals with new offences designed to protect the most vulnerable.
  • It includes new offences designed to protect children from abusive behaviour in the home. (Child sexual abuse is most prevalent in the home or extended family).
  • It equalises with the rest of the UK the age at which young people can have their consent to sexual activity recognised by the law.
  • It ensures that other vulnerable groups will also benefit from the added protection.
  • It strengthens the law on commercial sexual exploitation, including offences related to prostitution.

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

  • 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. Because of our view on the age of consent, we would wish to see the special regime applying to 13 – 17 year olds.(para 28)
  • 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.(para 29)
  • 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.(para 30)
  • The Committee is averse to the proposed defence of reasonable belief where a child is between the ages of 13 and 18.(para 31)
  • 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.(para 32)
  • We believe that there is merit in the development of prosecution protocols so that effective guidance is provided to the Public Prosecution Service.(para 33)
  • Prosecution protocols should also provide a role for diversionary youth conferencing arrangements.(para 34)
  • 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.(para 35)
  • An offence of advertising for sexual activity in a public lavatory should form part of this Order.(para 36)
  • The Committee is of the view that Section 5 of the Criminal Law (Northern Ireland) Act 1967 should be amended to ensure that young people are not inappropriately penalised forconsensual andnon-abusing sexual activity.(para 37)
  • 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.(para 38)
  • With regard to positions of trust referred to in the Draft Order not including sports coaches, 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.(para 40)
  • The majority view of the Committee is that the case for a change in the age of consent has not been made. 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.(para 49)
  • The Committee strongly recommends that there be no change to the current age of consent of 17.(para 50)

    [1] NIO Explanatory Document accompanying the proposed Draft Sexual Offences (Northern Ireland) Order 2007, page 7.

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:

  • The Christian Institute
  • NSPCC
  • Barnardos

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 focusing on the legislation. However, there is a world outside of that, including, for example, the child protection, health and education elements. The guidance for prosecution, social services and education is not clear or robust enough for children who engage in sexually harmful behaviour. There are issues about availability of resources for that work.

237. The Department of Health, Social Services and Public Safety is in possession of research that would amplify the problems and suggest solutions, but it is currently sitting on a shelf waiting to be published, so we are caught. It would have been advantageous if any guidance that accompanied the legislation could have been much more explicit about this group of children, because the new offences that are created automatically push you into new ways of looking at those children.

238. Mr O’Loan: There is the issue about whether persons who are in a position of trust, such as sports coaches, should be specifically named. There are references to people being involved in “training, supervising”. Are they adequately captured under those words? There have been instances of people involved in sports coaching being guilty of abuse. It is a significant issue. I would be amazed if people could escape by saying that they were not in a position of trust.

239. Mr Reid: When the Sexual Offences Act 2003 went through Westminster the Home Office was pushed to agree to a consultation on the issue of sports coaches, in particular. However, it went to great lengths not to do anything, and the consultation document is worded to let it out of having to do anything.

240. Mr O’Loan: So sports coaches are not named specifically?

241. Mr Reid: They are not named specifically.

242. Mr O’Loan: I doubt if that would let them out.

243. Mr Reid: On a consensual activity between a sports coach and a 16-year-old child they are exempted from the current legislation and also the proposed Order, and that is one of its weaknesses. Sports coaches should be brought within the definition of abuse of trust.

244. Ms S Ramsey: What is the reason for not naming them?

245. Mr Reid: My understanding is that the NIO claims that there is a difficulty around the definition of a sports coach. We have representatives from our Child Protection in Sport Unit here who deal with that issue. They work with sports in Northern Ireland and across the UK. There are now accredited coaching awards, so there are ways in which certain sports coaches could be brought under the definition of trust in the legislation.

246. Ms S Ramsey: When we talk to the leading children’s charities they raise those issues, and my concern is: what is the NIO’s thinking in not including sports coaches? There are thousands of children and young people who are involved in sporting activities. We are trying to strengthen the legislation, and I do not see why, if there is an opportunity to do so, it should be blocked.

247. The Chairperson: On that particular point, are there other areas of life where a more specific reference to a position of trust could be added to the legislation, or is it possible to word the legislation in such a way that other scenarios that we cannot foresee at the moment can be taken under its ambit?

248. Mr Reid: The legislation is worded in such a way that the Secretary of State can extend the provisions.

249. The Chairperson: Given that the NSPCC is primarily concerned with the protection of children, what is its position on the age of consent? That is probably going to be one of the more difficult aspects of the legislation. There are obviously very different views in society on the best way forward.

250. Mr Reid: The age of consent is a difficult issue, because sometimes it is more apparent than real. In Northern Ireland the age of consent is defined by what you cannot do as opposed to what you can, and it is not gender neutral. For example, if a 16-year-old boy has sex with a 14-year-old girl he is committing an unlawful carnal-knowledge offence, but if the boy is 14 and the girl 16, the boy is still committing the offence and the girl is not, if it is a consensual and not a forced act.

251. The age of consent has been largely changed by the 1985 Victoria Gillick case, which brought out the Fraser guidelines that prescribes, amongst other things, the competence of children to receive advice about contraceptives. Therefore, the age of consent in Northern Ireland is not necessarily what it seems.

252. Our policy position on the issue is that we supportive of it. Having a different age of consent in Northern Ireland compared to other parts of the UK has caused some difficulties. Northern Ireland has a high rate of teenage pregnancy, and there have been few prosecutions for unlawful carnal knowledge. On balance, the draft Order offers greater protection for children under the age of 16, and it is right and appropriate that children in this jurisdiction should have the same rights as children in other parts of the UK.

253. The Chairperson: Is there any evidence of people being held back from accessing advice due to a difference between the age of consent here and in Great Britain?

254. Mr Crummey: The issue for people, particularly children, seeking advice on sexual-health matters is confidentiality. We are currently considering how children might be given what we describe as “confidential space” in order to help them make decisions that are in their best interests. Rather than feeling the need to respond to a crime by immediately lifting the phone without consulting or bringing the child along, we believe that such actions could add to the child’s abusive situation because the system would have become abusive to the child. If children feel that as soon as they ask for advice or disclose something that something awful will happen to them, we are fearful that they will stop seeking advice. Therefore, we support any measures that will provide children with opportunities to do so regardless of the environment in which they find themselves.

255. Mrs D Kelly: The age of consent will be one of the most emotive debates pertaining to the proposed legislation. If I understand you correctly, the argument for the proposed change to the age of consent is twofold. The first part relates to the circumstances in which charges or prosecutions might be brought, and the other concerns access to contraception and health advice. That is how I distil the argument concerning the proposed changes to the age of consent.

256. Although the UK’s age of consent is lower than in many other European countries, the UK continues to have amongst the highest rate of teenage pregnancy. What is your view on the success or otherwise of the lowering of the age of consent in Britain and its impact on teenage pregnancy?

257. Mr Reid: We consider that the age of consent is slightly a side issue. Despite having a higher age of consent than in other parts of the UK, we have a high rate of teenage pregnancy. It is important to ensure that children get appropriate sexual-health advice, which may be to abstain from sexual activity until they are old enough to appreciate what they are doing or, if they are already engaging in sexual activity, support in order to ensure that their other needs are met. We will only be able to lower the current teenage pregnancy rate through a public-health approach.

258. Mr Crummey: It is useful to continue to consider abusive and consensual relationships separately. In which case, the age of consent does not really matter because an abusive relationship is a criminal offence and should be processed through that system. No matter what the age of consent or the ages of children in any consensual relationship, those two issues are still alive, and we are in the business of protecting children. As Colin said, the age of consent is somewhat of a side issue.

259. Mr Bowser: We welcome many of the provisions in the draft Order because they will tidy up much of the legal confusion; however, some situations cannot be legislated out of. Although we may all think that it is not good for a 12-year-old and a 14-year-old to engage in sexual activity — and we are not advocating that — criminal legislation may not be the best way to deal with the situation. We can lull ourselves into a false sense of security if we think that a lovely bit of legislation on the statute books will sort out the problems. In reality, the proposed legislation is about providing much more robust guidance for professionals working on the ground and to assist in training front-line doctors and other health professionals to make judgements about when to refer cases on and how to get support themselves when dealing with what are complex and difficult situations for children.

260. Mr Brady: In my constituency of Newry and Armagh, which is on the border, many young people socialise in the South, as I did when I was younger. If the age of consent is lowered an anomaly will be created because the age of consent is 17 in the South. Do you envisage any problems if the age of consent is lowered to 16?

261. Mr Reid: There are many anomalies in child-protection abilities between this jurisdiction and the Republic of Ireland. The age of consent does not stop children having sex or becoming pregnant, and, as Avery said, it is easy to get sidetracked by those issues. On balance, we are happy with the age of consent being lowered to 16 years provided that there are a number of other measures to support children. On the North/South dimension, we have consistently said that there must be improved co-operation on a range of issues — not just on sexual offences — such as exchanging information, safeguarding vulnerable groups and future legislation on vetting and barring. There are huge anomalies that are highly problematic.

262. Mr Ross: You said that lowering the age of consent will not stop sex between young children, that there is no link between the age of consent and teenage pregnancies and that it is not relevant to forced sexual activity. Are you not worried about the message that lowering the age of consent would send to children? Do you not agree that if the age of consent is lowered, there will be an increase in the pressure on children to have sex the closer they get to that age, because there will be a perception that everyone else is doing it and that the Government have legislated for that.

263. Mr Crummey: That depends on how that message is delivered. If it is delivered in a way that suggests that Northern Ireland is stepping outside of all other controlled areas and suggesting that the age of consent is lowered, that will probably have a traumatic effect on the public. However, if the message is delivered in terms of equality and rights for children across the UK, then a different message is being delivered. Colin is correct that it will not matter to children — they will have a consensual sexual relationship when they feel that it is appropriate, regardless of any legislation that aims to combat such activity.

264. Mr Wells: I am disappointed that you said that because at least a child of that age can be told that such behaviour is illegal. Sexual relationships between 16-year-olds, consensual or otherwise, are downright wrong and should be discouraged for both the moral benefit of society and the welfare of those concerned. Saying that such behaviour is wrong does not mean that it will not happen; there are many offences, such as speeding and breaching parking restrictions, which happen all the time. However, we do not say that because those things are going to happen that we will allow them to. Instead, we send out a clear message that society believes that such actions are wrong.

265. I take Mr Brady’s point that there will be a ridiculous situation where a young couple in Strabane may commit an offence if they hop across to Lifford because what will be legal in Northern Ireland will still be illegal in the Republic. That is the crazy situation that will develop. We must try to raise standards and tell our young people what society expects of them and that we know that they will not always reach that target but that the target must be made as high as possible to try to raise standards in their sexual relationships.

266. Mr Crummey: As an organisation, the NSPCC cannot afford to get involved in the morality of whether something is right or wrong — we must look at what we consider to be the best interests of children. We do not consider prosecuting two consenting 16- or 15-year-olds who are having a sexual relationship to be in the best interests of children. Although that may not sit comfortably morally, we cannot afford to mix and match the moral and legal arguments’ otherwise it would be me making a decision as opposed to the NSPCC or the general public. I do not know if the public at large have been asked their opinion on what the age of consent should be. I guess that you would get a huge variety of responses.

267. Mr Reid: Children in Northern Ireland can get married at the age of 16, which is another anomaly.

268. Mr Crummey: It is important that the Committee does not take from this discussion that the NSPCC is saying that it would support the lowering of the age limit to the age that it is in some of the European countries. That is absolutely not the case.

269. Mr Bowser: If a sexual-health message is to be sent out to children and young people, clearly the message that we would want to deliver is that the later the onset of sexual activity, the better — particularly for girls, in terms of their health. We must ask ourselves if we are being effective on that front as well. It is a very complicated situation. You can get very easily get fixated on the age of consent, and that does not solve the problem that you want to address.

270. Mr Wells: The logic of your argument is that if children aged 12 or 13 are regularly having consensual sexual intercourse, then the age limit should be brought down to reflect the practice. That is the logic of what you are saying.

271. Mr Bowser: No, it is not. It is the difference between criminalising that behaviour and not criminalising it. It does not stop you from taking action in other forms. As a social worker, if I were faced with a situation whereby 12- and 13-year-olds were having sex, I would want to talk to those children and their parents and find out what had happened. I would want to find out if there was an exploitative or abusive element; if that was the case, you may well find that it is a criminal matter. Even if there were not such an element, you would ask what the parents, and the other people involved in those children’s lives, were doing. It is more an issue of where the criminal line falls rather than sending a message that such behaviour is OK.

272. Ms S Ramsey: I understand the arguments that are being put forward by yourselves and the arguments that others have put forward. I was struck by the point that you made earlier, Martin, about there being two issues around the ages of consent. It could be a matter of two 15-year-olds consenting to a sexual relationship, or it could be a matter of a predator and a child.

273. In your presentation, you said that the legislation would bring this matter in line with what is happening in England and Scotland — I do not even think that it brings it in line with what is happening in Wales. Mickey made the point that the age of consent here would then be out of step with the Twenty-six Counties. From what we are reading, and from what you are saying, the majority of this legislation is good. Do we really need to get into an argument outside of this legislation? While it might bring it into line with what is happening in England and Wales, we are our own jurisdiction. I am conscious that we could get involved in that whole argument for nothing, when the legislation is there about the age of 17.

274. Mr Crummey: I am not sure how you want us to respond, Sue. The same argument could be made for the age being set at 16.

275. Ms S Ramsey: Point taken.

276. The Chairperson: I thank the representatives from the NSPCC for their presentation and for attending this morning. Hopefully, the Committee will take on board the comments that have been made.

277. I now move on to a briefing from Barnardo’s on the draft Order. We have an updated written submission from Barnardo’s, which was circulated to members this morning.

278. I welcome Margaret Kelly, the director, and Jacqui Montgomery-Devlin, the children services manager, from Barnardo’s. I invite the witnesses to make their presentation and present their views on the draft legislation. We will then throw the floor open to members for questions.

279. Ms Margaret Kelly (Barnardo’s): In the interests of accuracy, I had better say that I am the assistant director — otherwise the director might not be too happy.

280. Barnardo’s thanks the Committee for inviting it to make a presentation on the draft Sexual Offences (Northern Ireland) Order 2007. Throughout discussion on the draft Order, the organisation has commented on it and has worked on a range of issues that relate to it.

281. Barnardo’s is the biggest children’s charity in Northern Ireland. It works with around 9,000 children and their families every year. It has drawn on its range of service-based experience to inform its views on the draft Order. Some of that experience has been gained through protection work with children and young people who have suffered sexual abuse or have been engaged in or drawn into commercial sexual exploitation. Our presentation will focus on some of those matters. Barnardo’s also provides a service for young people who engage in sexually harmful behaviour and works with those who are most likely to engage in early sexual activity, who tend to be the most vulnerable young people. Barnardo’s also works extensively with school-age mothers and teenage parents. That range of experience has been brought to bear and has informed the organisation’s views.

282. Barnardo’s welcomes the introduction of the draft Order and the fact that all sexual offences will be dealt with under one piece of legislation. Current legislation, some of which is over 100 years old, is disparate. It is difficult for people who work in children’s protection to find their way around the legislation and to identify what parts of it are useful and helpful.

283. Barnardo’s is aware that the Committee is focused on the actual piece of legislation. However, we want to point out that the legislation’s implementation is as important as how it is drafted. Therefore, we want the Committee to emphasise the need for training to be made available when the legislation is introduced; not only to legal practitioners, but to social workers, GPs, health workers, and those in the voluntary and community sector who will interface with the legislation when they work with children and young people. Barnardo’s wants to emphasise the need for such training.

284. Barnardo’s welcomes the changes to tariffs and offences in the draft legislation. Often, we are aghast at some of the low sentences that are given to the perpetrators of sexual abuse against children. Therefore, we particularly welcome the increase in the tariff to 14 years for sexual activity with a child of 14 years of age and over, and life imprisonment for the serious sexual assault of a child of up to 13 years of age. Barnardo’s also welcomes the fact that the current tariffs for unlawful carnal knowledge are to be changed. The current tariff for unlawful sexual activity with someone of 14 or 15 years of age, which is two years’ imprisonment, will increase to a maximum of 14 years under the new legislation. Barnardo’s believes that that is particularly important.

285. Barnardo’s has had experience of children who were under 13 years of age at the time that they were abused, and the question of their consent being raised in court. Therefore, a particularly important part of the legislation that Barnardo’s wants to be introduced is that the question of consent will no longer be available. In future, if the legislation is introduced, the defence of consent for sexual activity with a child who is under 13 years of age will not be available. The offence will automatically be rape. Having had experience with children who have had to go to court and face questioning on consent, Barnardo’s welcomes that as a particularly important development.

286. In saying that, however, it creates a situation for those children who are between 13 and 16 years of age. If a child who is under 13 years of age suffers sexual abuse, that is clearly rape. The child does not have to face consent issues. If a child is 14 or 15 years of age, however, that is viewed differently. The issue of consent will be available. Around two years after the legislation was introduced in England and Wales, Barnardo’s carried out a survey among its managers who work with children in such situations. They felt that that distinction caused difficulty, because in situations in which children who were under 13 years of age had been sexually abused, a different attitude was taken towards that by the police and, to some extent, by social services. The level of investigation was much more rigorous and, to some extent, clearer and more supportive than it was in cases of sexual abuse of children who were 14 or 15 years of age.

287. Although Barnardo’s understands some of the thinking that led to the creation of that distinction, it is concerned that in practical situations — in which thresholds must be met, there are resource difficulties and the police do not have as much time as they need — it may be the case that children who experience sexual abuse at 14 or 15 years of age may not get the same response as those who are under 13 years of age. To some extent, that is being borne out by Barnardo’s experiences in England and Wales, and we might need to examine the issue of consent for 14- and 15-year-olds. Barnardo’s recognises that that is a difficult issue.

288. I will state Barnardo’s view on the age of consent, and I understand that it is a very difficult issue. We work with those children, so we know just how difficult an issue it is in practice. The organisation wants to make it clear that it recognises that early sexual activity is undesirable and that it goes with many other early risk-taking behaviours that can often lead young people into difficulties. Therefore, Barnardo’s does not underestimate in any way the impact of that early sexual activity, but the response to consensual activity should be to offer help to the individuals rather than to prosecute them.

289. We had a long, internal discussion about our position when the draft Order suggested that the age of consent should be 16. I have listened with interest to what Committee members have said about it, and I accept some of the points that they have made about where to set the standard. However, our experience and the range of our work suggest that many young people who engage in early consensual sexual activity are completely unaware that there is an issue about age. That does not enter their consciousness when they undertake such activity. On that basis, we do not consider that lowering the age of consent by one year will send out a huge message to young people that they should engage in sexual activity at 16. In fact, our organisation says clearly to young people that it does not think that that is a good idea and that they are too young. We must look at a range of other strategies for helping young people to make much more informed decisions about sexual activity, which are based on their self-beliefs, self-respect and self-confidence, rather than sending out a message which says, “You are 16; away you go.” That would certainly not be our approach.

290. Barnardo’s view is that the legislation will equalise the age of consent with that in England, Scotland and Wales, and it will gender neutralise it. There will not be a massive difference in dropping the age of consent from 17 to 16. On that basis, Barnardo’s does not oppose that aspect of the legislation.

291. Barnardo’s shares some of the concerns that were raised by the National Society for the Prevention of Cruelty to Children (NSPCC) about mandatory reporting and its impact. Section 5 of the Criminal Law Act (Northern Ireland) 1967 must be taken into account in relation to the age of consent, and that issue must be addressed.

292. Another issue concerns children who engage in sexually harmful behaviour, and Barnardo’s provides one of the three services in Northern Ireland that work with those young people. In the past, it has undertaken some research on the experiences of those young people. In many respects, there seems to be very little guidance and protocol as to which young people are prosecuted and which are not. Whether a young person is prosecuted can often be a matter of geography and who the local district police commander is. Young people can be prosecuted under that legislation for a complete continuum of sexual offences, ranging from inappropriate touching to rape.

293. On occasion, Barnardo’s has asked for young people, who have been therapeutically assessed by our service, to be prosecuted, but that has not happened. In one or two cases, we said that we considered the young person to be a danger and that there really needed to be a prosecution. However, that did not happen.

294. Young people have also used our service — and I am thinking of one example in particular. A boy of 14, who had severe learning difficulties, inappropriately touched the child who lived next door. He was prosecuted, but his brother and an older friend who had abused him were not. I want to give the Committee the sense that the issue that Barnardo’s is raising is not simple, and it can be horrifying. I was horrified that the young man in that case was prosecuted and that the two people who had raped him were not. For whatever reason, they could not be prosecuted.

295. As a matter of urgency, this piece of legislation must be used to put in place the sort of guidance and protocols that will make clear the circumstances under which young people will or will not be prosecuted for engaging in sexually harmful behaviour.

296. My understanding is that the NIO will organise round-table talks on this issue. It does not belong to one Department — it belongs to a range of Departments. For some years, the NSPCC and Barnardo’s have been trying to get the Public Prosecution Service, the police, the NIO, the Department of Health and the Department of Education to come together on the issue. We welcome the fact that the NIO will take the matter forward, that, but we would welcome the Committee’s support in highlighting the issue.

297. Finally, I wish to highlight the issue of trafficking and sexual exploitation. Ms Montgomery-Devlin manages our sexual exploitation service.

298. Ms Jacqui Montgomery-Devlin (Barnardo’s): The service was set up in response to the sexual exploitation of young girls in Belfast. We started in the Eastern Health and Social Services Board area but have consequently done work in other board areas. What we say today is based on the young people — particularly young women and girls — who we have worked with, and on what we have heard from other agencies that work with young people who are either being sexually exploited in various scenarios or at risk of sexual exploitation.

299. Ms M Kelly: The legislation includes a defence of reasonable belief in age where a child is over 13 and under 18. When young people are drawn into sexual exploitation, one of the most common defences is that the perpetrator thought that the young person was, say, 20 when they were actually 14. This defence can allow those who wish to sexually exploit young people to continue to do so, knowing that they can argue reasonable belief. We recognise the difficulties of taking that defence away completely; it can be difficult to tell a young person’s age. However, where there is a gap of five years or more — particularly with a young person of 14 or 15 — that is often one of our indicators of potential sexual exploitation.

300. Quite often, young people who have been drawn into sexual exploitation will be very vulnerable; they may have been in care, and they may have been sexually abused. Our experience in Northern Ireland is that, for example, a 40-year-old might establish a relationship with a 15-year-old who is in care, take her from the care home and draw her in to a world of sexual exploitation. We recommend that reasonable belief in age only be available where there is a specified age difference. If the child was 14 or 15 and the perpetrator was 25, say, a claim of reasonable belief in age should not be allowed in the same way. I can see some difficulties with that, but we are also looking for mechanisms to try to protect those children. They are a group of children whom it is difficult to protect, and it can be difficult to get prosecution.

301. Ms Montgomery-Devlin: I cannot say this categorically, but that defence is used in most cases where prosecutions are being dealt with. The very fact that our service is set up to work with young people who have been sexually exploited shows that there are adults out there who want to sexually abuse young girls.

302. In addition, a lot of young girls with whom we work will say that many of the adults who abuse and exploit them will ask them to find younger girls for them. Their ultimate aim is to have sex with a young girl. To then stand up in court and say that they believed she was a certain age is nonsense and does not afford the young people the protection that they need.

303. Ms M Kelly: Barnardo’s supports the NSPCC belief that those having sex with children should not receive a lower penalty than those who organise and exploit such sexual activity, and I hope that the Committee picks up on that.

304. We welcome the inclusion of the offence of sexual activity in a public lavatory, because we have clear evidence that pubic lavatories are used by people who are sexually exploiting children. They display relevant telephone numbers, and they put up information on the ages of children who are available. We have records of that occurring in public lavatories in Belfast. It is, therefore, important that that offence is included in the legislation.

305. Mrs D Kelly: In relation to trafficking and sexual exploitation, I take it that you are really talking about prostitution. Assistant Chief Constable Drew Harris has said that most of those in Northern Ireland who become involved in prostitution have previously been in care. I support your suggestion regarding the sentencing arrangements for those who organise such sexual activities as opposed to those who participate. I am shocked by your comments about public lavatories. What have you done with your research? Where has it gone? Have you had success with it? How should the legislation be amended to meet that need?

306. Ms Montgomery-Devlin: We have not had a lot of success. About two years ago — and having looked at what our colleagues in England had done looking at how young people were being sought — we decided to go round some of the public lavatories in Belfast with representatives from Belfast City Council. What we saw mostly consisted of adults seeking boys and young men, both over and below the age of consent. We reported that to our management group within the Eastern Board, which had a meeting with the PSNI and Belfast City Council. We suggested that we put up some Barnardo’s posters, which would have had our helpline number and details of how we could be contacted by any young people affected by the exploitation. We wanted to let the young people know that there is a way out. However, we were not permitted to do that, unfortunately. We were told that the problem was not particularly serious and that drawing it to the attention of the public was an issue — even though it was up there on the walls anyway. We did try to do something about it.

307. Mrs D Kelly: Those advertisements would be a way of investigating, and that might lead to prosecutions.

308. Ms Montgomery-Devlin: Absolutely.

309. Ms M Kelly: It has been done in other places.

310. Mrs D Kelly: I am amazed that you were not allowed to put your posters up.

311. Ms M Kelly: Police in England and Wales have used information from public lavatories.

312. Ms Montgomery-Devlin: And information found in train toilets. That investigation was initiated by a journalist, and it led to the conviction of a large paedophile ring.

313. Mrs D Kelly: There is nothing in the legislation. Did you raise it with the NIO or others?

314. Ms M Kelly: At one stage, it was questioned whether the offence of sexual activity in public lavatories would be included in the legislation. We said that public lavatories can be exploitative locations and that it is important that the offence be included in the legislation.

315. Mr O’Loan: Thank you for your presentation. I will support you strongly on one issue and question you about another. You mentioned the defence of reasonable belief in age in cases of sexual exploitation. That must be closely looked at. If that defence is too easily presented or sustained, it will become a dangerous loophole.

316. I want to ask you about one of the recommendations in your submission. Under the proposed legislation, children under the age of 13 simply cannot give consent to sexual activity, and everyone will agree with that. However, I find it somewhat surprising that you advocate that the same stipulation should be extended to the age of 16. If I understand you correctly, that would mean that the defence of consent could not be used, or ever brought into play, in cases of sexual activity involving a child, or children, up to the age of 16. Given what goes on in the real world, that could create a minefield, with people demanding prosecutions when common sense should dictate that that is not the appropriate action to take.

317. Ms M Kelly: That is a genuine difficulty. Perhaps the legislation needs to unpick some of the issues to a greater extent because, to some degree, it is just following what they have in England and Wales. Our concern is that cases involving 14- and 15-year-olds do not receive the same level of investigation — and, potentially, those children do not get as much support — in terms of recognition that a criminal act that has taken place, where it has been abusive.

318. Perhaps that is not the best way to handle that concern. Our concern is that the issue needs to be addressed by formulating appropriate guidance in addition to the legislation. In England and Wales, 14- and 15-year-olds have fallen off the priority list to some extent. To some extent, if a crime involves a child who is under 13 years old, where there is no question of consent, the prosecution becomes easier. It is much more difficult to prosecute when the case involves 14- or 15-year-olds.

319. The Committee should prioritise and examine those issues. We do not want 14- and 15-year-olds who have been abused to find themselves at the bottom of the priority list for investigation. In our experience, that has started to happen.

320. Mr O’Loan: I agree that guidelines are very important, and they could be developed in consultation with groups such as Barnardo’s.

321. Ms M Kelly: Yes.

322. Ms Montgomery-Devlin: I will give the Committee an example of what happens on the ground and of the frustrations that have led us to this stance. We sit in one strategy meeting after another at which there are strong suspicions that, for example, a group of young girls are being sexually exploited. We hear that a 14- or 15-year-old has “consented” to being horrifically raped, to the extent where she almost died — and that is almost accepted. In addition to introducing legislation to protect those children, such attitudes must change.

323. That is where I am coming from. We need to extend that protection to 16 to protect young girls who are 14, 15 or 16 and who believe that such abuse is part of life and is supposed to happen. They almost believe that they have consented to it. Their background is such that they need to be protected by legislation.

324. Ms M Kelly: The context is that we have faced real difficulties in getting investigations and prosecutions in cases where 14- and 15-year-olds have been sexually exploited. There is some degree of acceptance that that may be the case, but that nothing can be done about it. To some extent, our request reflects our frustration at that situation. When 14- and 15-year-olds are being sexually exploited — and social services and the police know that it is happening but do nothing to address it — we need to take action.

325. Mr O’Loan: I take your point.

326. Mr Wells: Your founder would be rolling in his grave: I am sure that you have heard that phrase before. An organisation that started out with strong Christian principles seems now to be simply going with the tide. I assure you that that is my personal opinion.

327. I accept that, in practice, many of the people in Northern Ireland who are involved in underage sexual activity are unaware of the restrictions. Then again, the same could be said of lots of activities that children are involved in, including underage drinking, solvent abuse and many other issues. In those instances, no one argues that such actions should be made legal simply because children are doing it anyway. A standard should be set and people should be encouraged to aim to reach that standard.

328. Barnardo’s has fallen into line with other organisations in saying that as the difference is only one year and it will bring us into line with the rest of the UK, it should be accepted. Why not try to raise the standard for young people and send out a clear signal that underage sex — consensual or otherwise — between 16-year-olds is unacceptable? People should be encouraged to desist from that, and their parents should be discouraged from allowing it to happen.

329. Ms M Kelly: I respect and understand your point of view on that issue. I want to make it clear that, in our practical services on the ground, we do not encourage young people to engage in early sexual activity — in fact, we discourage it as risk-taking behaviour. I can understand why you feel that setting the age of consent at 17 sets a standard. I believe that what is required is information and advice for young people. As I said, I respect your point of view.

330. Mr Wells: There is no inherent reason why your organisation has to support the change to the age of consent, apart from the fact that everyone else seems to be supporting it and all the other organisations seem to be rallying behind it.

331. There is a worrying trend at the moment regarding underage sexual activity. It seems to be going all in one direction. Surely someone should be considering that and trying to drive standards up rather than down. Inevitably, in a few years someone will argue that the age of consent should be reduced yet again because most 14-year-olds are having consensual sex and they do not know that it is illegal. If that continues, there will be no moral absolutes at all in society.

332. Ms Montgomery-Devlin: What is happening in this discussion is the same as what happens with the young people who we work with, in that the focus is on the young people yet again. There should be more focus on adults — those who are exploiting, abusing and having sex with children and young people. We can be sidetracked yet again. Every day I see the focus on the young people and their consenting to it, whereas those who are exploiting and abusing them often get a by-ball because we get sidetracked with such discussions.

333. The Chairperson: Maybe we could explore this issue from another angle. In your daily work, do you have much experience of people below the age of 17 being apprehensive about accessing information regarding sexual health?

334. Ms Montgomery-Devlin: Most of the young people who we work with are already involved with social services or will have accessed information from other agencies, such as Brook Advisory Centres. We can make information available to them should they need it, but it is not a major component of our work with them. Obviously, advice is always available and we have to assess their level of knowledge.

335. The Chairperson: Thank you. The Committee will take your comments into account in its report to the Assembly.

336. Ms M Kelly: Thank you very much.

14 January 2008

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

Witnesses:

Mr Callum Webster
Mr Matthew Jess

 

Christian Institute

Paul Goggins
Gareth Johnston
Amanda Patterson

 

Minister of State, Northern Ireland Office
Northern Ireland Office

337. The Chairperson (Dr Farry): I welcome Callum Webster, the Northern Ireland officer from the Christian Institute, and Matthew Jess, who is a research assistant. We will give you an opportunity to address the Committee, after which we will throw the floor open for questions. I ask that everyone check that their mobile phones are turned off lest they interfere with the recording equipment. We have received some written evidence from the Christian Institute. A note that was tabled this morning has been left on members’ desks.

338. Mr Callum Webster (Christian Institute): Good morning, everyone. On behalf of the Christian Institute, I thank you for giving us the opportunity to make a presentation this morning.

339. The Christian Institute is a non-denominational charity; it was established for the promotion of the Christian faith in public life. It works across the United Kingdom. In Northern Ireland, it has approximately 3,500 registered supporters, including 388 churches and church leaders. The institute works to uphold traditional Christian beliefs about marriage and sexual ethics.

340. In 2006, the institute submitted a response to the Northern Ireland Office’s consultation document, ‘Reforming the Law on Sexual Offences in Northern Ireland’. The institute is encouraged by some of the changes that have resulted from that consultation. It is pleased to see that there are no longer any plans to legalise many brothels, and it is heartened to see that the offence of sexual offence in a public toilet has remained a sexual offence rather than becoming a public-nuisance offence. It is glad to see the withdrawal of proposals to allow sexual activity between 13-year-olds and teenagers up to three years older. We are encouraged to see new offences of kerb-crawling and of keeping a brothel.

341. However, one area of concern about the draft Order remains — the age of consent for sexual activity. It is the Christian Institute’s contention that the age of consent should remain at 17 and should not be reduced. The institute believes that that age should remain for a variety of reasons relating to child protection, child health and well-being, and the family unit. Let me deal with each in turn.

342. First, the age of consent should remain at 17 in order to protect young people from abuse. In law, a person remains a child until he or she turns 18. Northern Ireland’s age-of-consent law means that children are deemed incapable of giving legal consent to sexual activity below the age of 17. Consequently, at present, sexual activity with someone below that age is automatically a criminal offence. It is well known that rape trials hinge on the issue of consent. That often means that in order to best secure a conviction, the rape victim must give evidence and face cross-examination. However, with an age-of-consent offence, all that the prosecution has to prove is that the sexual activity took place. The child concerned is not required to testify that they did not consent, neither do they need to undergo cross-examination. It is much easier to secure a conviction for an age-of-consent offence than it is to prove rape. In many borderline cases, prosecutors may know that a rape prosecution would be unlikely to succeed and that giving evidence would involve severe trauma to the victim. For those reasons, prosecutors can use the option of prosecuting an age-of-consent offence.

343. On several occasions, the Soham murderer Ian Huntley was accused of having sex with underage girls. It emerged that north-east Lincolnshire social services received four complaints of underage sexual relations against Huntley in the late 1990s. Had the age of consent been properly enforced in those cases, he would not have been able to obtain a job in a school because of the convictions on his record. The age of consent exists to protect children, and the more that it is lowered, the more that young people are put at risk. The draft Order recognises that 16-year-olds and 17-year-olds are vulnerable and need protection. This is why they cannot be used in the production of pornography, as outlined in articles 38 to 42 of the draft Order. It is also the case that under-18s are prohibited from working in, or even entering, sex shops in Northern Ireland. Lowering the age of consent reduces the protection relating to sexual activity and exposes young people to greater danger.

344. There are professional predators in society: were this change in the law to go ahead, it would expose another 26,000 young people to the legal, but potentially predatory, advances of adults. The opposition of both Catholic and Protestant Churches to the lowering of the age of consent has been reported in the media. The Rape Crisis and Sexual Abuse Centre has also voiced concerns about plans to lower the age of consent. The Rape Crisis Centre is a long-established counselling, advice and advocacy service for the survivors of sexual violence and abuse. Eileen Calder, the director of the centre, said that:

“Our concern is to protect vulnerable young men and women from older sexual predators … What we are concerned about is men in their 20s, 30s, 40s and older preying on young people. And that applies to the gay community as well as the heterosexual community.”

345. She expressed those views in the context of opposition to proposals to lower the age of consent.

346. There is always a penumbra effect below the age of consent. Teenagers can manipulate other teenagers who are slightly below the age of consent into engaging in sexual activity. In those cases, prosecutions are less likely to take place. A 17-year-old, for example, who manipulates a 16-year-old into engaging in sexual activity may well not face prosecution because of factors such as the age of the victim and the level of manipulation. If the age of consent is dropped to 16, some 14- and 15-year-olds may be manipulated into sexual activity by older teenagers who may then escape prosecution. A lowering of the age of consent exposes even younger teenagers to the predatory advances of older, more manipulative teenagers.

347. Sex trafficking is reported to be on the rise in Northern Ireland. A recent joint initiative was established by the Human Rights Commissions on both sides of the border to investigate human trafficking. Paul Goggins, the Minister of State, has also expressed concern about the increase in sex trafficking in Northern Ireland. Lowering the age of consent in Northern Ireland will encourage the sex trade and attract adolescent and paedophile sex tourists from the South of Ireland, where the age of consent remains at 17.

348. Secondly, the age of consent must be kept at 17 in order to protect the health and well-being of children. Reducing the age of consent to 16 sends out a signal that sexual activity at a younger age is normal. However, sex is not an activity for children. Many activities are unlawful for people under the age of 18: they cannot gamble, buy knives, buy alcohol from bars, buy certain solvents or own imitation firearms. Young people do not have the physical, emotional or psychological maturity necessary to cope with the consequences of sexual activity.

349. Many young people who have engaged in teenage sexual activity have admitted regretting it later in life. An analysis of the 1994 national survey of sexual attitudes and lifestyles in Britain found that a staggering 58∙5% of girls whose first act of intercourse was below the age of consent later regretted that it had taken place too soon.

350. In 2001, that survey asked a statistical sample of 16- to 24-year-olds in Britain whether they had had sex before the age of 16. A Government study in Northern Ireland in the same year, the Northern Ireland health and social well-being survey, enables a comparison to be drawn between the regions. The findings reveal a stark contrast. The studies found that in Northern Ireland only 15% of young people had engaged in sexual activity below 16, whereas, in Britain, where the age of consent is lower, almost 28% of young people had done so — almost double the proportion, with all the associated problems of teenage pregnancy and sexually-transmitted infections.

351. The question is whether we would rather 28% or 15% of 16-year-olds engaged in sexual activity. The age of consent makes a crucial contribution to that difference. Young people in Northern Ireland are safer for longer than their counterparts in Britain.

352. The proposal in question is at odds with the direction of Government policy in other aspects of public health. In England and Wales, the legal age for buying cigarettes has been raised to 18, and although smoking cigarettes is unhealthy, and prolonged use can result in serious consequences, no one could ever argue that those consequences could follow a single act of smoking. However, a single act of sexual intercourse can result in a young person becoming pregnant or contracting a sexually transmitted infection, which, in some cases, can be fatal. Also, if the age of consent is lowered, there will inevitably be an increase in the number of young women travelling to Britain for abortions.

353. The age of consent proposals in the draft Order cover anal intercourse as well as vaginal sex. Anal sex carries particularly high health risks, which 16-year-olds will be exposed to if the age of consent is lowered. Professor Gordon Stewart, emeritus professor of public health at Glasgow University, has studied the comparative risk of HIV according to the type of sexual activity. He has calculated that, for men, the risk of acquiring HIV through anal intercourse is at least 2,700 times higher than the risk from vaginal intercourse. Anal sex carries such high medical risks that the UK blood transfusion service will not accept blood from any man who has ever had sex with another man, even if it is safe sex with the use of condoms.

354. In 2001, when the age of consent for homosexual activity in the UK was lowered to the same age as that for heterosexual activity, it was very strongly argued that this change was needed in order to encourage young people to feel less inhibited about obtaining sexual health advice and treatment. The assumption was that the rate of sexually transmitted infections would decline. However, as a matter of fact, since 2001, the number of HIV infections has continued to increase, according to the Health Protection Agency’s new HIV-diagnosis quarterly surveillance report of June 2007.

355. Thirdly, and finally, the age of consent must remain at 17 years in order to protect the family unit. The Government have publicly stated that marriage is:

“the surest foundation for raising children.”

356. The best outcomes for children are for those raised by married parents. That is true across a whole range of factors such as health, education and the likelihood of experiencing abuse or having a criminal record. Children are best protected when family life is strong. Sex is a powerful thing; that is illustrated by the fact that, throughout the world, there are laws that govern sexual activity. Lowering the age of consent makes it more likely that young people will engage in casual sex, which will lead to more teenage pregnancies and conceptions, and will promote the breakdown of the family.

357. Currently, marriage in Northern Ireland is considerably stronger than in the rest of the UK. The divorce rate in Northern Ireland is only a fraction of that in England and Wales — 57%, according to the most recent figures. There are fewer children born outside wedlock in Northern Ireland than in England and Wales, and the proportion of families headed by a cohabiting couple in Northern Ireland is half of that in the rest of the UK. All of those figures demonstrate the much greater strength of the family unit in Northern Ireland when compared with Britain. Legislators must carefully consider whether to put that at risk by lowering the age of consent.

358. Mr Matthew Jess (Christian Institute): Some arguments are being advanced to pressure the Government into lowering the age of consent to 16. However well meaning, those arguments are ill-conceived. I will deal with each of them in turn.

359. First, some organisations argue that the age of consent must be dropped in order to bring parity with the rest of the UK, but no such need exists. Northern Ireland has its own legislative Assembly, with Members elected by the local population to govern the jurisdiction. There are distinct differences between Northern Ireland’s legal framework and that of the rest of the United Kingdom. For instance, the Abortion Act 1967 does not apply to Northern Ireland, and alcohol licensing legislation in the two areas is different. The current disparity in age of consent law dates back to 1950 when, as a child protection measure, the Stormont Government amended the age of consent in Northern Ireland to 17. The NIO must not have considered parity to be relevant when it consulted on proposals to legalise teenage sex at the age of 13 in instances where there were no more than three years’ age differential between the parties. There is no parallel law in any other part of the United Kingdom.

360. The Republic of Ireland is the only country to share a land border with Northern Ireland, and its age of consent is 17. Having a lower age of consent in the North will give paedophiles and adolescents who live in the Republic an incentive to come to the North to engage in sexual activity.

361. Secondly, some people claim that young people in Northern Ireland believe that the age of consent is 16. Even if that presumption is true — and we have yet to see any evidence of that fact — it does not justify a change in the law. If there were a common misconception about speed limits in Northern Ireland, I doubt if many would advocate lowering them for that reason. The Christian Institute questions whether that argument would be posited in relation to any other existing law.

362. A recent example of a safety law being downgraded to match a supposed public perception — with the full support of supposed experts — was the reclassification of cannabis. However, that move is now likely to be reversed, after heavy public criticism. We further question whether public opinion in Northern Ireland would support a lowering of the age of consent. The strong opposition of both Protestant and Catholic Churches has been reported in the media.

363. Thirdly, some groups argue that lowering the age of consent will help to combat the high teenage pregnancy rate and the spread of sexually transmitted diseases, because young people will feel less inhibited about going for sexual health advice and treatment. As well as contradicting the previous claim that teenagers believe the age of consent here to be 16, that assertion is not borne out by the evidence. Having a lower age of consent will not reduce teenage pregnancy rates. If that were the case, the teenage pregnancy rate in other United Kingdom regions would not be so high. There are three times as many children born to, or aborted by, 15-year-old girls in England and Wales — where the age of consent is 16 — than in Northern Ireland. At the age of 16, the figure is still two-and-a-half times as many. The pregnancy rates of 15- and 16-year-olds are higher in England and Wales than in Northern Ireland, and the age of consent must be considered an important factor in that difference. The rate of sexually transmitted infections among under-16s is also two-and-a-half times higher in England and Wales than in Northern Ireland. The lower age of consent in England and Wales is a critical difference between the two areas.

364. Fourthly, it is alleged by some that having an age of consent of 17 is discriminatory against young people in the Province. Is it discriminatory to protect young people from dangerous activities? Are laws addressing the sale of alcohol, the possession of firearms, gambling and applying for driving licences discriminatory? To the contrary, as can be seen from the evidence just discussed, it is young people in Britain who suffer discrimination by having the age of consent at 16 rather than 17, exposing them to the risks of sexual activity at an earlier age. Some organisations assert that under the Sutherland vs UK ruling, having an unequal age of consent is discriminatory. However, Sutherland vs UK related to the inequality of the age of consent between heterosexual and homosexual activity, not between geographical regions. It is, therefore, erroneous to cite that case as if it compelled us to have the same age of consent in Northern Ireland as in Britain.

365. Thank you for the opportunity to present this submission. The Christian Institute appreciates the valuable contribution that the Committee plays in presenting the views of the Northern Ireland electorate to those responsible for bringing forward the legislation.

366. The Chairperson: Thank you for your presentation. We will now open the Floor for questions.

367. Mr Wells: We have heard evidence from other statutory and non-statutory organisations, and one point that has been made is that the actual number of convictions under the present legislation is quite low. May I play devil’s advocate? I suggest that it will not have much impact if the legislation does change, because there will not be many prosecutions against those who are involved in sexual activity with 16-year-olds.

368. Mr Webster: If the legislation changes, it will send out a signal to people that more is acceptable, and boundaries will be pushed further. Whether that results in prosecutions is irrelevant. Look at what has happened in England and Wales, where the age of consent is a year lower and has been for a number of years. Their teenage pregnancy and sexually transmitted infection (STI) rates are much higher.

369. Mr Wells: There is also an argument that Northern Ireland has a lower rate of teenage pregnancy, abortion and underage sexual activity due to its strong moral values, adherence to faith-based institutions and stronger family structure than the rest of the United Kingdom, rather than due to the legislation. Is it right to claim that the legislation is the cause of that lower rate, rather than the fact that families educate their children on those issues?

370. Mr Webster: I am sure that there are a number of contributing factors. As you rightly say, views held by families and churches here definitely play a role, but the law also plays a role. It sends out a signal, and that can be seen in many areas of life, such as in the speeding and gambling laws. If people know that something is illegal, they will be more wary of engaging in it generally.

371. Mr Wells: Long before I realised that I was going to be a member of this Committee, you encouraged many of your members in Northern Ireland to write in on the initial consultation, and that was very successful. I must declare that I was one of those members, and I would have written in regardless of whether I was a member of the Committee. Do you have any comment on the way in which submissions about the Christian Institute were dealt with separately from those made by other individuals and organisations?

372. Mr Jess: It became apparent early on that submissions from Christian Institute supporters were dealt with separately. That came as quite a surprise, because we could see no reason for it. They wrote in after they had gained information about the consultation from us, but we did not force the pens into their hands. They chose of their own free will to make those submissions, based on their concerns about the issue.

373. Mr Wells: On a wider issue, you concentrated on the issue in the consultation about public lavatories and brothels, which you were concerned about. That proposal has been reined back. Does any other aspect of the proposed legislation cause the Christian Institute any concern?

374. Mr Webster: The age of consent is our biggest concern, because of the reasons given in our presentation. We were concerned with the proposals in the consultation on sex in public toilets and brothels and the three-year age differential, but those issues have now been dealt with to our satisfaction. However, the age-of-consent issue remains.

375. Mr Wells: If we could tie down that issue to your satisfaction, would you be happy with the rest of the legislation?

376. Mr Webster: Yes.

377. Ms S Ramsey: Thank you for your presentation. It is a very comprehensive document, and it answers some of my questions. However, the issue about Ian Huntley struck me, and I would like to tease it out. The document states that he was accused of having sex with underage girls on several occasions. It goes on to say that if the age of consent had been properly enforced in those cases, he would not have been able to obtain a job.

378. Mr Webster: That is correct.

379. Ms S Ramsey: Will you explain that?

380. Mr Webster: If the age of consent had been enforced in those cases, he would have had to declare previous convictions when applying for a job, and he would have been banned from getting a job in a school.

381. Ms S Ramsey: But the age of consent in England is 16.

382. Mr Webster: That is correct. He was engaging in sexual activity with girls who were under the age of consent, but no prosecutions were pushed in those cases.

383. Ms S Ramsey: I simply do not understand why that is included in your submission if, as you say, the age of consent in England is 16 — which is lower than the age of consent here. What is its relevance? In those particular cases, the law was not enforced — it had nothing to do with the age of consent.

384. Mr Jess: It has to do with the so-called penumbra effect, which has already been mentioned by Callum. Where an offence has been committed, conviction tends to be less likely if the age of the victim is slightly below the age of consent. Obviously, the age of consent determines at what age the “penumbra effect” kicks in. Essentially, it was because of the “penumbra effect” that Ian Huntley was not convicted of an offence. Had the age of consent been higher, the girls with whom he engaged in sexual activity would have been viewed as being well below the age of consent. Therefore, a conviction would have been attained and he would have had a criminal record.

385. Mr O’Loan: I thank Mr Jess for his presentation. I strongly support your serious interest in the matter. Sexual activity is an important social issue and the legislation on it can have significant social consequences. The matter well deserves the attention that you have given it. I refer to the issue of the law sending out a signal. In general terms, that is an important issue. Law has specific implications with regard to what it actually does and the court actions that are a result of legislation, and also has a broader, general message.

386. Sexual behaviour is a complicated social phenomenon. It is far from being determined merely by what is written into a statute. Different regions in different countries have different social climates. There are many factors that affect people’s behaviour — in particular, that of young people — with regard to sexual activity. Perhaps it is unwise to focus too much on the issue of age of consent as being a significant determinant of young people’s behaviour.

387. Mr Jess has presented some statistical information that argued for retaining the current age of consent, because he felt changing it would result in more sexual activity at a younger age. If it were to do that, I would share Mr Jess’s concern. However, there are many statistics on the issue. For example, the Committee has been presented with a statistic from the Netherlands, where the age of consent is 16, and where there is a low rate of teenage pregnancy. However, in Northern Ireland, where the age of consent is 17, there is a high rate of teenage pregnancy.

388. The issue is not a simple one, rather it is quite complex. At present, of all the things that contribute to sexuality at a young age — and I share Mr Jess’s concerns about those — I do not think that altering the age of consent would be a significant factor that would much alter the present conduct of young people.

389. Mr Jess: It is quite true that rates of teenage pregnancy are much lower in Holland, even though the age of consent is lower. However, when that information is given, the status of welfare provision for teenage mothers in Holland and statistics on family stability are often not mentioned. In Holland, those factors could be viewed as severely restricting ones that would convince young people — despite the lower age of consent — that waiting to engage in sexual activity is something that they should do.

390. As regards to statistics on age of consent — and whether a change in the law is a deterrent, or otherwise, to young people’s engaging in sexual activity — the argument has been put forward that, if the age of consent were to be lowered, then the figure of 15% — for Northern Ireland — would become 0%, because all young people would not become sexually active before they had reached the age of consent.

391. That is one argument. However, based on the information and the statistics that exist on the topic, I would be loath to put any money on the scenario that if the age of consent were lowered, people would wait until that age to become sexually active. I base that on the information available and the comparison between the rates in Northern Ireland and those in the rest of the UK.

392. Mr O’Loan: My point is related but there may be some difference. In general terms, the Committee is approving a lot of the proposed legislation. As the witnesses are aware, the term “age of consent” does not appear anywhere in the legislation; it is implicit in other parts of the legislation.

393. In any consideration of the age of consent, it is important to consider an overview of the provisions, including the gradation of protections as a child gets older. There are precise statements about no consent being given for those under the age of 13. There is also a particular regime created for those aged 13 to 16. Furthermore, there is a further set of protections beyond that, particularly with reference to those in positions of trust.

394. In general terms, the sweep of the legislation is sound and it is the right approach to take. In that context, I do not get as concerned as you are about the age of consent. Do you think that the broad sweep of the legislation is sound?

395. Mr Webster: I am not here to comment on the other aspects of the legislation. I am representing the Christian Institute’s views on the issues that I have outlined. It is not for us to comment on issues such as abuses of trust or the positions of 13-year-olds.

396. Our focus — because it is our concern — is the age-of-consent issue. The Committee will be aware from our presentation that we had wider concerns during the consultation with some proposals that were submitted regarding other issues. We are satisfied that those other issues have now been addressed. However, I am not prepared to comment on an issue that is outside our remit.

397. Mr O’Loan: It is not meaningful to discuss the age-of-consent issue in isolation; it makes sense only in considering the overall context of the legislation.

398. The Chairperson: Do you have any evidence that suggests that young people pay any attention to the age of consent when taking decisions as to whether to engage in sexual activity?

399. Mr Webster: The comparison between what has happened in England, Wales and Northern Ireland is evidence of that. Fewer children in Northern Ireland who are under the age of 16 have engaged in sexual activity. I am sure that one of the reasons for that is because they realise it is illegal. That may not be the only reason, but it is a factor that is considered.

400. The Chairperson: The converse of what you are saying is that, in the present circumstances, there would be a sudden outbreak of sexual activity at the age of 17 when those people who had been holding off out of respect for the law, suddenly decided that because it is legal, they would no longer hold off. Is there any evidence of an increase in sexual activity by 17-year-olds who had been waiting for it to become legal?

401. Mr Webster: We have not particularly investigated what has happened after the age of consent.

402. The Chairperson: It is easy to quote statistics and then produce one argument based on those statistics. However, other elements regarding the wider context often need to be considered. It is essentially the law of cause and effect.

403. Do you think that it is wise to implement a law that is never going to be enforced? The Committee heard evidence from the Northern Ireland Office that in practice, it would not be deemed to be in the public interest to prosecute teenagers of a similar age for engaging in sexual relations below the age of consent. Therefore, what is the point in having that law if it is not going to be enforced?

404. Mr Jess: We are aware of the statistical evidence relating to convictions, which is why Mr Webster mentioned the penumbral effect. In reality, that means that an age-of-consent law is only actually enforced in circumstances of sexual activity at an age considerably below the age of consent. It is worth remembering that the whole point of age-of-consent legislation is to act as a child-protection measure. In effect, those enforcement and conviction-rate statistics reflect a reduction in the age of consent. One must then consider what protection the law provides.

405. The Chairperson: The current law allows marriage at the age of 16. Are you happy with that, or do you think that that should be increased to age 17, in line with the age of consent?

406. Mr Webster: I understand that the current law allows marriage with parental consent. We are not here to comment on the age of marriage, and we would have to return at a later date to give our opinion on that issue. However, that is not what is at stake in the draft Order.

407. Mr Jess: The law at present makes a clear exemption from the age of consent for marriage and many provisions of the draft Order include exemptions when they relate to married couples — whatever their age, the legal age being 16. If nothing else, it is a signal within the law that activities that may be dangerous and open to abuse in other scenarios are in fact protected within the marriage situation. It is a special case because of the commitment inherent in it. The law signals what is safe, what is dangerous, and what circumstances permit something to be considered safer.

408. The Chairperson: Is it potentially discriminatory to allow someone to carry out an activity when they are in the married state, but not to allow that to someone who is not married?

409. Mr Jess: I suppose it really depends on how important one considers marriage to be. The clear statement within the provisions of the draft Order is that marriage is a special situation, and that therefore special circumstances and parameters apply.

410. The Chairperson: You have made great play on the point of the importance of protecting young people and of discouraging them from engaging in sexual activity. If you accept, however, that sexual activity is a reality that must be managed and deterred effectively, do you recognise the need for young people to access the best advice on sexual health matters? Do you think that setting the law on the age of consent at the age of 17 would discourage people below the age of consent from seeking advice and avoiding, for instance, sexually transmitted diseases?

411. Mr Webster: The evidence does not appear to bear that out. In England and Wales, where the age of consent is lower and people are not inhibited from seeking advice as it is legal for them to engage, the STI and teen conception rates are considerably higher than they are in Northern Ireland. The evidence we have presented to you demonstrates that. I do not accept the argument that the age of consent must be lowered so that people should feel less inhibited; that is not borne out by the facts.

412. The Chairperson: We have also heard advice from organisations that work directly with children and lobby on behalf of their interests, such as the NSPCC and Barnardo’s. Both of those organisations suggest that the age of consent should be lowered to 16 on the balance of the argument. How would you comment on the positions taken by those organisations?

413. Mr Webster: They are expressing their own view as we are expressing ours. We believe that our view does protect and safeguard children; it is up to them to present in regard to their own case.

414. The Chairperson: On behalf of the Committee, I thank Callum and Matthew once again for presenting their evidence. No doubt the comments that they have made will be reflected in the final report that the Committee tables for debate in the Assembly. Thank you.

415. I now welcome Mr Paul Goggins, the Minister of State in the Northern Ireland Office. It is great to see you before the Committee, and we appreciate your coming in this morning to meet us. Timing is out of our control whenever flights and the weather are involved. The Committee has had a presentation from your officials, which was extremely useful and explored a whole range of issues. It has also had evidence sessions from several non-governmental organisations (NGOs) and private discussions among members about the terms of the legislation.

416. The Minister of State (Mr Paul Goggins): Thank you very much for your warm welcome. I apologise for being late. I arrived at the airport at the normal time this morning to find that there was a two-hour delay — which was beyond my control. I am grateful for the Committee’s generosity in reconvening at a later time which is inconvenient for you.

417. Thank you for your comments about my officials. Gareth Johnston and Amanda Patterson are with me this morning, and I know that they have given evidence to the Committee. They are vital in supporting me in this work, and I am glad that the Committee has also found them to be helpful. If the Committee requires further information after this meeting, they will be happy to provide that.

418. This is the first review of sexual offences in Northern Ireland, and we have been guided by the review that took place in England and Wales and the resulting legislation. These are very difficult issues that require considered and careful judgement. Our core aim throughout the review and in introducing the legislation has been to ensure that consensual sexual activity between adults is not caught by the criminal law, but that effective protection is given to people — particularly children and vulnerable adults. We have brought clarity to the law on rape by, for example, including oral penetration within the remit of the law; we have clarified the need for a reasonable belief in consent and also built in a presumption that, if violence is used or an overpowering drug administered, the activity is rape, rather than consensual.

419. We had done a great deal to strengthen protection, building an absolute zone of protection for children under the age of 13. The legislation makes it absolutely clear that they are unable to consent to sexual activity. We have prohibited sexual activity between those aged under 18 and people in a position of trust with them, and there is extra protection for people with learning disabilities. That has all been underpinned with extra and stiffer penalties, which can be seen in the draft legislation.

420. A great deal of consideration is being given to the proposal to reduce the age of consent from 17 to 16, and I am sure that we will come to those issues. Throughout the review and in introducing the legislation, our aim has been to create consistency with the rest of the United Kingdom, unless there are compelling reasons why we should do something different. We have not as yet seen or heard any sufficiently compelling reasons. We have received evidence from others, and we look forward to the Committee’s deliberations.

421. Children’s organisations are concerned that the current situation is preventing young people from coming forward for advice when they are engage in sexual activity. I have thought long and hard about that, but I do not believe that the criminal law is the regulator for the growth or otherwise of teenage pregnancies. There are other strategies which relate to that. Indeed, in Northern Ireland, there is an increasingly effective strategy led by the Department of Health.

422. Consensual sexual activity between young people who are under 16 years of age is a difficult issue. In a previous life, I took the Sexual Offences Act 2003 through Parliament. My boss at the time was one Mr Blunkett. He promised me a jeroboam of champagne if there were a perfect solution to the issue. I did not get that champagne; I do not suppose that I ever will. I believe that we should hold firm to 16 years as the age of consent and deal with the practical consequences of that, case by case, through guidance that is issued to the Public Prosecution Service.

423. Finally, I am aware that section 5 of the Criminal Law Act (Northern Ireland) 1967 is an issue that has seized people. I am sure that we will discuss that today. Again, there are no easy, straightforward answers. However, I hope that my responses will show clearly why the NIO has formed its present conclusions.

424. Mr Wells: The Committee is generally supportive of most of what you are trying to do — consolidating, modernising and bringing together all of the legislation. However, you will hardly be surprised that there is quite a bit of concern in the Committee and elsewhere about the effect of lowering the age of consent to 16. The Committee has been told that there would be technical and legal difficulties if Northern Ireland were at variance with the rest of the United Kingdom on the issue. I cannot see what the problem is; the issue is where the offence is committed, and there is no doubt as to whether it has been committed in Northern Ireland or elsewhere in the UK. Are there any technical reasons why it would be difficult for the NIO if Northern Ireland were out of line with the rest of the UK and retained its age of consent at 17?

425. Mr Goggins: I would not argue that there are technical and legal reasons why it would be difficult to have a different age of consent in Northern Ireland. However, it would be confusing, not least for young people. It is important to have consistency in that area, wherever possible, across the entire United Kingdom. In a sense, the burden of proof goes the other way — it must be proved that there is a compelling reason for having a different age of consent in Northern Ireland than elsewhere in the UK. I have not seen such a reason. I do not suggest that some obscure technical reason is a big argument for that.

426. Ms Amanda Patterson (Northern Ireland Office): Our policy position has been to follow the law in England and Wales, because the reform that was brought about by the Sexual Offences Act 2003 was informed by extensive and fundamental research. NIO has used that as the basis for its review in Northern Ireland. In that situation, it was right to follow the policy position of that fundamental research. It has nothing to do with technical or legal reasons. I do not think that the NIO has ever put forward that argument.

427. Mr Wells: Thank you, that is helpful. Do you accept, however, that on other issues, which, I suppose, can loosely be called “moral issues”, Northern Ireland has different standards to the rest of the UK? The obvious example is the Abortion Act 1967, which does not apply here. Northern Ireland also has different legislation on alcohol consumption and, I believe, on prostitution. As that is the case, why should we not try to adopt what many people perceive to be higher standards in this part of the UK?

428. Where is the push, the lobby or the huge surge of opinion demanding a change to the age of consent in Northern Ireland? The Committee does not perceive that there is much demand for it out there, apart from the opinion of a few non-governmental organisations. Where is it coming from, apart from a slavish following of the 2003 Act?

429. Mr Goggins: Let me start by saying that the NIO does not seek absolute uniformity in all areas. I would not argue for that either. However, we believe that it is important, not least for clarity in the minds of young people across the entire UK, that the age of consent should be the same everywhere unless there are compelling reasons why it should not. If the Committee were to unanimously argue such a compelling reason, I would have to consider it. However, to date, no such compelling reason has been put forward.

430. The NGOs have made the important point that they, not least with parents and others, are trying to provide appropriate advice and support for young people who may be becoming sexually active. They think that having the age of consent at 17, as it is at the moment, actually works against their being able to do that effectively.

431. It is important to emphasise that, although we are proposing to reduce the age of consent from 17 to 16, we are not suggesting for one minute that all 16-year-olds should immediately become sexually active — far from it. We know that parents and other organisations will offer advice. We are seeking to put into criminal law the age at which it is a criminal offence to have a sexual relationship with a child. That is rather different from seeking to encourage, or give formal cultural assent to, greater sexual activity among young people. It is about defining in law when sexual activity is a criminal offence. On balance, consistency with the rest of the UK is the overriding issue. However, we will listen to the Committee’s conclusions.

432. Mr Wells: Finally, Minister, if the Assembly was to unanimously support the retention of 17 as the age of consent, what would be the Northern Ireland Office’s reaction to that decision?

433. Mr Goggins: I would want to examine the Assembly’s reasoning. Your all holding the same policy position would be one thing; holding it with a coherent set of convincing arguments would be another. I would have to examine the arguments that the Assembly put forward.

434. Mr Wells: We will give you those arguments. Are there no practical difficulties with Northern Ireland, as part of the UK, going down that route? Can it be done?

435. Mr Goggins: There are a couple of points. First, we could opt to retain 17 as the age of consent. However, I am making it clear, and being honest with the Committee, that we do not intend to do that unless we hear a compelling argument, which would not —[Interruption.]

436. The Chairperson: Is there a mobile phone switched on? Sorry, Minister.

437. Mr Goggins: As I was saying, it is possible, and I will not for one minute pretend otherwise. We could reverse the current decision as it stands in the draft Order. However, I am making it clear honestly that, unless we hear a compelling argument to the contrary — and we have not heard it yet — we will not change our decision. If the Committee’s decision was unanimous, I would have to take it seriously. However, I would examine the arguments behind it.

438. Ms S Ramsey: Thank you, Minister. Several weeks ago, we had a very good evidence session with your officials, and that answered some of our questions. I have my own opinion on the age of consent. What concerns me is that I do not want to go down the road of criminalising two young people. I do not want to do that; there are several issues there. However, I am genuinely concerned that an older person of 25 or 30 years of age — a serious, professional predator — could take advantage of young people. We must tease out ways in which we can protect young people from that type of person without criminalising two young people who might be having a relationship.

439. Minister, you mentioned some of the work of the NGOs. The NGOs also have concerns, which I, and other Committee members, raised at the meeting that we had with them, and I want to go over some of those with you. One issue is the way in which the NIO has developed the legislation in isolation from other Departments. Given that we are talking about providing information and advice for young people, it is important to ensure that Health Department officials are involved in discussions on the outworking of the proposed legislation and on providing clear guidance.

440. The National Society for the Prevention of Cruelty to Children and Barnardo’s have indicated that the legislation does not include special measures in relation to children who engage in sexually harmful behaviour. That is a specific issue.

441. I agree with the concerns that have been raised about sports coaches’ not being included in the legislation, considering that sporting organisations have a very strong cohort of voluntary coaches, who are involved in all aspects of sport on a weekly basis. It strikes me that that may be unique, and they should be included in the legislation.

442. I know that your officials are examining the inconsistency of the penalties for those who pay for sex with a child and those who control and organise such behaviour. People who pay to have sex with a child and people who control that activity are the same. It is inconsistent that someone who pays for sex with a child should receive a stiffer sentence than the person who facilitates it. I want to hear your views on that.

443. It is a pity that the age of consent is contentious, because there are many positive aspects to the legislation, and I commend you and your officials for introducing it. We will return to the issue of the age of consent next week.

444. Mr Goggins: You have raised a great number of issues. The protection of children can be increased partly through legislation, such as the Order under discussion today, and partly through statutory and voluntary agencies taking a range of practical measures outwith the legislation. The Order clarifies the law on the abuse of trust and provides additional legal protection by making it clear that teachers, carers or social workers are prohibited from engaging in sexual activity with children in their care who are under the age of 18. However, further practical measures can be taken.

445. I take your point about the need to collaborate with all Departments, and that will become easier after the devolution of policing and justice powers. In the meantime, I will continue to strive to collaborate with the Departments. I have worked closely with Minister McGimpsey on several issues, such as the development of a strategy on sexual violence.

446. The Health Department’s teenage pregnancy and parenthood strategy has been running for about five years and has begun to show some real signs of success, with a reduction of about 25% in teenage pregnancies over that period. I contend that that is how to deal with the issue of teenage pregnancies, rather than through the law. It is interesting that the Netherlands, where the age of consent is 16, has the lowest rate of teenage pregnancies in Europe. That proves that it is strategies, rather than legislation, that provide the solution.

447. Children who engage in sexually harmful behaviour, where that behaviour is exploitative and related to bullying, are committing an offence, but prosecution may not be appropriate. Those who are abused certainly need protection, and the abusive children require effective interventions. Organisations that work with children are developing programmes to work with abused and abusive children.

448. When the activity is consensual, I recognise that the law, as it stands, introduces uncertainty into the system. Therefore, effective guidance must be provided to the Public Prosecution Service, and I want to ensure that we develop that guidance consultatively and bring into play the views and experience of voluntary organisations and statutory agencies.

449. You made a point about sports coaches. The positions of trust listed in section 28 of the Order, as currently drafted, tend to be statutory positions, such as teachers, carers and those who look after people in institutions of one kind or another. The position of sports coaches is more informal, and the review in England which led to the Sexual Offences Act 2003 examined that issue carefully and decided not to include sports coaches. If sports coaches were included, others, such as people who run youth or church groups, and so forth, would also have to be included, and it would become complicated. I am perfectly happy to consider the conclusions that you draw on that issue and to listen carefully to those who advocate the inclusion of sports coaches in the legislation.

450. As to the final point you made about paying for sexual activity and the control of that, I will have to reconsider some of those arguments with respect to appropriate penalties. Either we change our views on that, or we offer a coherent explanation for the differences.

451. Ms S Ramsey: I take on board what you have said with respect to young people involved in sexual harm. You are considering the possibility of drawing up guidance. Do I understand that there may be a round-table discussion, pulling together those in the community and voluntary sector and your officials? Can we have that commitment today?

452. Mr Goggins: Yes.

453. Ms S Ramsey: We want to work with your officials, and I know that they want to work with us.

454. The issue of sports coaches is a major one. Our situation may be different to that in England. You mentioned Mr Wells’s point. This is not parity legislation. If we can make positive changes or take it one step further, we will. Our situation is unique. Thousands of people are involved in this on a weekly basis, some of whom do very good work. I do not mean to suggest that any of them are involved in this activity. We must look at that carefully.

455. It would be remiss of me not to take this opportunity to mention the issue of victims and survivors, although that does not lie within the remit of this Committee. I am concerned that our Committee is looking at this draft Order while another is considering a related Order. Where does it come together? We cannot look at victims and survivors in isolation.

456. Mr Goggins: I can reassure the member and the Committee. The best way to take this forward is through collaboration, ensuring that everyone’s experience and understanding is brought into play. I want to make sure that voluntary organisations, statutory agencies and others continue to be involved in the development and outworking of the legislation. That is important.

457. Following the 2003 Act, England’s experience in the drawing up of guidelines for the Crown Prosecution Service in relation to the prosecution of children engaged in consensual sexual activity was that it did not turn out to be the problem that people predicted. That is because it was managed collaboratively and well, and everyone was involved in drawing up those guidelines.

458. Rev Dr Robert Coulter: Thank you, Minister. That is helpful. However, there is one point that I would like you to amplify further, and that is the conflict of interest aspect. Sexual activity between children is criminalised, and a maximum penalty of five years’ imprisonment is imposed. There is a legal obligation on the part of those aware that the law has been broken to report an arrestable offence. The Bill is vague about that, and I wonder whether it could be clarified. It affects many people: teachers, parents, youth leaders, church ministers and so on.

459. Mr Goggins: That is an important point. We saw this one coming; we made it clear in the document that accompanies the legislation that we could see that this was an issue. Section 5 of the Criminal Law Act (Northern Ireland) 1967, as you rightly point out, makes it an offence to withhold information about the commission of serious offences — offences punishable by a maximum of five years’ imprisonment or more. That includes all the offences that we are discussing.

460. I understand that organisations that work with children — and, indeed, parents — may be concerned that they will be caught up in the criminal law if they know that children are engaged in sexual activity and do not report it to the police. When such children turn to organisations and agencies for advice and support, those agencies may feel compromised.

461. In England and Wales, the equivalent legislation was repealed some years ago because it was not relevant to modern law. The 1967 Act was not repealed in Northern Ireland, for reasons connected with the conflict and terrorism. It made sure that no one could remain silent if they knew that offences of that sort were being carried out. If we were to propose the repeal of section 5 completely, some people might argue — and argue strongly — that that would be premature as regards those wider issues. Equally, if we offered to rescind section 5 as it relates to sexual offences, it might give an impression that sexual offences are not all that important when compared to other offences.

462. There are some genuine difficulties here. If we do not repeal any aspect of section 5 — either in general or as it relates to these particular sets of offences — my aim will be to find a common-sense way through this matter. We do not want parents or agencies to feel in any way constrained. We want them to give advice and support to young people — that must be an absolute priority. Again, we will look at what the Committee has to say about this issue. In fact, I will pay particular attention to what the Committee has to say about this issue before coming to any conclusions or making any changes. We do not hide from the fact that it is a tricky area, and I will be interested to hear what the Committee thinks.

463. Mr Ross: In general, the legislation contains a lot of positive measures. I want to highlight a couple of issues. I agree with Ms Ramsey about sports coaches. There have been incidents in the media fairly recently involving tennis coaches and so on. That is a serious issue and needs to be considered. I question the figures that you quoted from the Netherlands, because I think that, equally, one could find higher rates of teenage pregnancies and sexually transmitted infections (STIs) in other parts of the world where there are lower ages of consent. I do not buy the argument that lowering the age of consent will lower the number of teenage pregnancies or STIs, or encourage more young people to go to clinics.

464. We are in the rather bizarre situation whereby, across the UK, tobacco laws are being strengthened. Before Christmas, the Assembly debated bringing Northern Ireland into line with the rest of the UK and limiting the purchase of tobacco to over-18s. Now, on the mainland, consideration is being given to reclassifying cannabis. Those two specific measures are all about sending out a strong message that cannabis and tobacco are harmful and that taking them might be detrimental to your health. However, you are proposing to lower the age of consent, which will be a big issue for the Northern Ireland public. It looks like we are liberalising that. Why are we being strong on tobacco and cannabis laws, yet looking weak on the age of consent? Are you not concerned about the message that that will send out to young people and to general society in Northern Ireland?

465. Mr Goggins: It is very important that we all send out a very strong message about this legislation. We are not saying that young people should be engaged in sexual activity at any particular age. Clearly, that is a matter of great concern and a big issue for young people as they grow up. They need to take advice. My personal view is that sexual activity should be within the context of a relationship that actually means something. Those are the kinds of messages that we should be putting across.

466. What we are doing here is seeking to clarify when it is a criminal offence to have sexual activity with a young person. That is the key. I do not want to continue to repeat myself, but that is the clear issue. I absolutely agree that we should send out very strong messages, not least because young people can be easily swayed by peers — people in their class, youth groups and so on. It is very important that we give backup to parents and to others in the support that they provide to young people in that context. However, the key issue is that this legislation is about defining when sexual activity is a criminal offence; it is not about saying when it is right or wrong as a part of their development or when young people should be engaging in sexual activity.

467. Ms Patterson: The Minister has confirmed that a round-table discussion will be held on issues relating to implementation of this legislation. This is exactly one of the issues that that group should look at, and we should be very careful when dealing with it, because it is about messages and the law. We must ensure that the right messages are sent out, and it should be a joint departmental effort involving Departments such as Health and Education as well as the Northern Ireland Office. It is about the messages that are sent out.

468. Mr Brady: In Britain, there is consistency between England and Wales with the age of consent at 16. I represent a border constituency, and the age of consent in the South is 17. If that were to remain so, and the age of consent here were to be lowered, then there would be a real fear that sexual predators might be encouraged to take advantage of the situation.

469. I do not expect that young people will flock across the border to engage in sexual activity, but there are people who may take advantage of the situation, and I believe that that is a real fear which people would like to have addressed. It is possible that the age of consent in the South may also be changed — we do not know at this point in time, but as it stands there will be a disparity. Obviously the same issue does not affect Britain because there is a consensus there that 16 is the age of consent.

470. Mr Goggins: I understand your point. I understand that there has been some debate in the Republic about the same issue, although they do not currently have a firm proposal to change the age of consent. The important point is that if sexual predators — in other words, people who would exploit and abuse people — are attracted to come across the border because the age of consent is lower here, in a sense it is immaterial what the age of consent is.

471. If someone is going to abuse, take advantage, and force sexual activity on someone who is unwilling and does not give their consent, that is already covered by the law and is a matter of great concern. I hope one of the things that will come out of the legislation is a strengthening of awareness across Northern Ireland that you must consent to sexual activity, and that if you do not consent that is a least a serious sexual assault and could be rape.

472. I hope there is a very strong message here – that people do not have to put up with that kind of abusive behaviour, even from persons from their own household. It is not acceptable and the law reflects that, and there are strong penalties for those who seek to abuse people in that way.

473. Mr Brady: I certainly take your point, however if there is a change in the age of consent and the change is publicised, I believe it will send out a message to sexual predators. I am not saying such sexual assaults do not happen at the moment — or will probably continue to happen — but if there is a change then that may act as a focal point, and therein lies the difficulty.

474. Mr Goggins: Of course, the Republic may decide to make changes of their own, but that is entirely their decision.

475. Mr Brady: I accept that, but as you say, no firm proposal has currently been made.

476. The Chairperson: In relation to enforcement of the law — presently, when sexual relations occur between people below the age of consent, prosecutions are extremely rare as it is judged not to be in the public interest to pursue prosecutions. In the event that the new legislation is adopted, do you envisage stronger guidelines being established in order to facilitate prosecutions and enforcement of the law? Furthermore, if the age of consent is set at 16 rather than 17, can we assume that this will automatically entail a strong system of enforcement, as opposed to the current loose, confusing situation in which action is not taken?

477. Mr Goggins: I agree that you can have all the legislation in the world, but unless it is effectively enforced it does not make a scrap of difference, and I take that point very strongly. This is an area of the law which is notoriously difficult to sustain in relation to successful prosecution, because it is often one person’s word against another’s, and having a jury decide that a case is proved beyond reasonable doubt is notoriously difficult.

478. We are all concerned about the low level of prosecution for rape and sexual assault, and we must work hard to make sure that wherever possible those prosecutions are brought and convictions are gained. The development of the sexual violence strategy, which is a joint endeavour between the Northern Ireland Office and the Department of Health, Social Services and Public Safety, is very important.

479. It is important that we work collaboratively with a range of community organisations, women’s organisations, and victim’s organisations in the development of that approach. Initiatives like the development of Northern Ireland’s first sexual assault referral centre are also very important. I have seen the effective way that these organisations can work in the wider health and policing system, by providing effective support to victims but also by gathering the forensic evidence that can sustain a successful prosecution.

480. I was delighted when, before Christmas, Minister McGimpsey made an announcement as to the possible location of the sexual assault referral centre. I want to work closely with him on that. It is through that kind of endeavour, working effectively, that we can make sure that the law is known, understood and pursued. That is important. There is merit in what you say: perhaps changing the age of consent will provide a renewed focus for a more limited age-range that may help in this regard.

481. I do not pretend for a minute that there are any easy answers in this area. We must all work together: health services, police, and the different statutory and voluntary agencies. Victims must know that they can come forward and report these things. So much sexual crime goes unreported, because the crime is carried out by people the victims know; or the victims feel ashamed; or they do not know who to turn to. That culture has to change, so that victims can come forward and report crime so that prosecutions can be made. Perpetrators should get a strong message that they cannot behave like that; if they do, they will be in trouble.

482. The Chairperson: With respect to predators, an argument put to the Committee regarding the age of consent poses a situation where it may be difficult to prove whether consent has been given. Consent is not always a black-and-white issue: it can be fluid. Inducements or pressure can be brought to bear on a victim. If there is an age of consent, whether it is 17 or 16, consent becomes less of an issue; in that, if a partner is below the age of consent, the action is illegal by definition. How do you respond to that argument? I think Mickey Brady has already touched upon this.

483. Mr Goggins: We acknowledge that anyone under 13 cannot, by law, consent to sexual activity. We say that those over 16 can, in law, give such consent.

484. There are, then, two issues. Young people between 13 and 16 may give their consent: it is illegal and against the law. Those who engage in that kind of activity with them are guilty of a criminal offence. Then there those able to consent in law, but who do not consent: they may be victims of assault and so on.

485. I acknowledge that there are different stages in the development of maturity. Questions about whether an individual has the capacity to consent are difficult to prove and understand. That is why we want absolute clarity for the youngest children, to ensure that it is clear in law that they cannot consent, and that therefore no one can have any defence in relation to sexual activity with a child under 13. For the rest, it will be a judgement about individual maturity, development and so on.

486. This is one of the reasons why I have concluded that one cannot legislate on the face of an Order like this, to try to define circumstances in which consensual sexual activity between under-16s could escape the criminal law. There could be a relationship between an immature 14 year old and a mature 15 year old. Those two may be very far apart in development. On the face of it, it may look like a consensual relationship: but in fact it may not be. There may be a lot of pressure exerted by the more mature on the less mature. These are all difficult judgements: in the end it is for a jury to decide whether consent has been given in a particular case.

487. The Chairperson: Let us discuss sexual health. The Minister has mentioned that access for young people to advice on sexual health is one of the primary motives for revision of the law. However, the Committee has heard arguments from others that a lowering of the age of consent sends signals that would lead to an increase in sexual activity among young people and a higher risk of an increase in sexually transmitted diseases.

488. Please elaborate on how you see the arguments about sexual health. Perhaps you would reflect on the arguments put to you by different organisations during the consultation.

489. Mr Goggins: It is important that we have effective sexual health strategies. I pay tribute to the Department of Health, Social Services and Public Safety, which has developed this teenage pregnancy and parenthood strategy. It is seeing a reduction in the number of teenage pregnancies. That kind of effective educational work is important.

490. I pay particular regard to those who have said that young people who are sexually active and aged 16 are breaking the law, or would be perceived as breaking the law if they actually came out and sought advice, and are currently being prevented or discouraged from doing so by the current state of the legislation. That is one of the reasons why I was swayed to reduce the age of consent to 16, because we should be doing what we can, within reason, to make sure that we encourage young people to come forward. In the end, we can have all the strategies and education we like, but unless we are actually engaging with young people and giving that information, we are not being effective.

491. The Chairperson: Declan O’Loan, from the SDLP, unfortunately had to go to a funeral; he gives his apologies for missing this part of the session. He wanted to ask you to elaborate on what new offences were being created to protect children in the home from abusive behaviour.

492. Mr Goggins: In terms of this particular Order, one of the things that we are doing is clarifying family relationships in respect of sexual offending, to make it absolutely clear who cannot engage in a sexual activity in relation to members of one’s own family, and some of it gets quite technical. It is important that we have that on the face of the Order. The reason for this is that the majority of sexual abuse and sexual assaults that take place actually take place between people who already know each other, very often members of the same family. It is important that we have absolute clarity in the law here, and I would suggest a close look at that part of the Order that defines those relationships, so that we can say that we have taken that seriously.

493. Ms Patterson: It is important to note that all the familial child sex offences relate to children under the age of 18, and the relationships involved in the offences have been widened to allow for all the circumstances that the Minister has just mentioned, where it is very often someone known to the child; if not an immediate blood relation it is somebody who has a second or third relationship. All of those are now included in the offence.

494. Mr Wells: This is based on a bitter experience of something that happened 25 years ago — you quite rightly dropped, as a result of the public consultation, issues like the offences in public conveniences. You made that a criminal offence rather than simply something that —

495. Ms Patterson: It always was a criminal offence.

496. Mr Wells: There was a proposal to make it a public disorder issue rather than a criminal issue.

497. Mr Goggins: I can give some clarity on this for you, because it came up when I was in the Home Office taking the Bill through. There was a proposition to get rid of the offence of sexual activity in a public lavatory, on the basis that other public order offences would take care of this offence. In the end, we did decide to change our minds on that and to leave the offence of sexual activity in a public lavatory as an offence, even though that may not be the offence that is actually prosecuted; it may be a public order offence that is.

498. Mr Wells: Many people welcomed that decision, and also the changes in the proposals on prostitution. Can I take it that there is absolutely no suggestion that those could be brought back at any future stage in this legislation; that they are dead forever?

499. Mr Goggins: There is no proposition here to change the law in relation to sexual activity in a public lavatory. There are some proposals to change the law in relation to prostitution, but these are measures that have been called for, not least by Members of the Assembly, that will actually toughen-up the law in that area.

500. Mr Wells: Will there be any change to the issue of prostitution in this particular Order?

501. Mr Goggins: No, there is no intention of doing that.

502. Mr Wells: We had a consultation here in 1985, where a nasty piece of legislation was withdrawn, consultation then took place — but nobody commented on it because they thought it was dead, and then it was brought back after the consultation period was closed. Is that going to happen this time?

503. Mr Goggins: I think it is an important point to make that we operate in good faith here. Having listened to advice and recommendations from you and others, it may be that we change some aspects of that Order. What we will not do is introduce a whole new element into the Order. We could do that in theory, but we would not do that in practice — it would be disingenuous to do that when we had not had a proper consultation about it.

504. The Chairperson: What we have before us is the limit of what is going to be considered in the Order.

505. Mr Goggins: There will be no new measure brought in that we have not consulted on, within the Order.

506. The Chairperson: Minister, on behalf of the Committee I thank you once again for coming before us today with your officials and clarifying those issues. It has been very helpful. I gather that you are now an expert on this legislation in your various ministerial roles in terms of taking this forward, so we wish you well for the future. We will be debating this in the Assembly within the next couple of weeks, and then forwarding our comments to your officials.

507. Mr Goggins: I am very grateful for the time that you are taking to do this. It is very important work. Thank you.

508. The Chairperson: Thank you, Minister.

Appendix 3

Written Submissions and 
Other Correspondence Considered 
by the Committee

Letter of 19 November 2007, from Mr Paul Goggins MP, 
Minister of State for Northern Ireland, to the Speaker. 75

Letter of 20 November 2007, from the Speaker to 
Mr Paul Goggins MP, Minister of State for Northern Ireland. 78

Research paper on the Intention of the Draft Order – 
prepared by Assembly Research and Library Services. 79

Research paper on the Wording and Effect of the Draft Order – 
prepared by Assembly Research and Library Services. 90

Submission from the NSPCC Northern Ireland. 97

Submission from Barnardo’s. 101

Submission from The Christian Institute. 103

Handout from The Christian Institute at evidence session on 14 January 2008. 109

NIO response to Committee’s request for statistics about 
prosecutions for teenage sexual activity and extent of Article 21. 111

P Goggins letter to Speaker, 19Nov07-1.tif

P Goggins letter to Speaker, 19Nov07-2.tif

P Goggins letter to Speaker, 19Nov07-3.tif

The Speaker

William Hay MLA
Room 40 
Parliament Buildings
Belfast, BT4 3XX

Tel: +44 (0) 28 9052 1130
Fax: +44 (0) 28 9052 1959
email: speaker@niassembly.gov.uk

Mr Paul Goggins MP
Minister of State for Northern Ireland
Block B
Castle Buildings
Stormont

20 November 2007

Dear Minister

Thank you for your letter of 19 November regarding the publication on 20 November of a proposal for the Sexual Offences (Northern Ireland) Order 2007. On receipt of the draft Order the Assembly’s Business Committee will decide how the Assembly’s views shall be established and I will be in touch with you in due course.

In relation to your proposed briefing to MLAs I would be more than happy to facilitate the use of Committee Room 21 in Parliament Buildings for this purpose and I am aware that it has already been reserved for Monday 26 November. If there is anything else that myself or my officials can assist you with please do not hesitate to contact me.

Yours sincerely,

William Hay Sig.psd

WILLIAM HAY MLA

NIA Logo (Black).ai

Research Paper

December 2007

Intention of Draft Sexual Offences 
(Northern Ireland) Order 2007

Fiona O’Connell

The Draft Sexual Offences (Northern Ireland) Order 2007 proposes to overhaul the law on Sexual Offences in Northern Ireland. To facilitate the Ad Hoc Committee on Draft Sexual Offences (NI) Order 2007 in their consideration of the Government’s proposals, this paper will consider the intention of the draft legislation. This paper will also provide information on the law governing sexual offences in England and Wales and the Republic of Ireland.

Research Papers are compiled for the benefit of Members of The Assembly and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public.

Summary of Key Points

  • The aim of this paper is to provide background information on the intention behind the Draft Sexual Offences (NI) Order 2007.
  • As the law relating to sexual offences in NI can be found in various statutes, the intention behind the Draft Sexual Offences Order is to:
  • Harmonise;
  • Modernise;
  • Strengthen;
  • Clarify the law, and
  • Bring NI into line with the rest of the UK.
  • In comparison, England and Wales, has a harmonised piece of legislation that governs the area of sexual offences called the Sexual Offences Act 2003. Some of these provisions currently apply to NI. Furthermore, the age of consent in the rest of the UK is 16 years of age unlike NI where it is currently 17.
  • The legislation in the Republic of Ireland dealing with sexual offences is similar to current legislation in NI, as it can be found in various statutes and the age of consent is also 17 years of age.
  • The Ad Hoc Committee may wish to consider the following:
  • Whether Sexual Offences legislation in NI should continue to be contained in various pieces of legislation, as it is currently and also the case in ROI;
  • Whether the age of consent should be brought into line with the rest of the UK and reduced from 17 to 16, or remain at the age of 17, which is the case in ROI.

Contents

1 Introduction

2 The intention of the proposed draft Sexual Offences (NI) Order 2007

2.1 Harmonising the Law relating to sexual offences

2.2 Strengthening the Law

2.3 Clarifying the Law

2.4 Modernising the law

2.5 Bringing NI into line with the rest of UK

3 Comparative information on sexual offences legislation from England and Wales and the Republic of Ireland

3.1 Main features of sexual offences legislation in England and Wales

3.2 Sexual Offences legislation in the Republic of Ireland

4 Conclusion and potential issues for consideration

Annex 1-Current Legislation in NI Governing Sexual Offences (not included in Sexual Offences Act 2003)

Annex 2: Offences in Sexual Offences Act 2003 which apply in Northern Ireland

Annex 3: Sexual Offences Legislation in the Republic of Ireland

Summary of Key Points

1 Introduction

The Secretary of State for Northern Ireland, Paul Goggins has announced proposals to make changes to current sexual offences legislation.[1] Reform in the area of sexual offences has been“motivated by a desire to achieve a strengthened, modernised and harmonised body of law based on the Sexual Offences Act 2003.”[2] There has been a previous consultation by the Northern Ireland Office, entitled “Reforming the Law on Sexual Offences in Northern Ireland”, which ran from July until October 2006. The responses to this consultation formed the basis of the proposed Draft Sexual Offences (Northern Ireland) Order 2007. This consultation on the proposed Draft Sexual Offences (Northern Ireland) Order 2007 (hereafter known as the proposed draft Order) is to run until February 2008 and it is anticipated the legislation will come into force in May 2008.[3]

This paper is to facilitate the Ad Hoc Committee in their consideration of the proposed draft Order. Section 2 will consider the intention and policy objectives of the proposed draft Order. Section 3 will provide comparative information from England and Wales, and the Republic of Ireland.

2 The Intention of the Proposed Draft Sexual Offences (Ni) Order 2007

2.1 Harmonising the Law Relating to Sexual Offences

The proposed Draft Sexual Offences (NI) Order 2007 intends to harmonise the law relating to sexual offences in Northern Ireland, including those provisions in the Sexual Offences Act 2003 which apply to Northern Ireland, into one statute. However the provisions relating to trafficking as set out in the Sexual Offences Act 2003 will continue to apply in NI.[4] The intention to harmonise sexual offences legislation is due to the fact that much of it is outdated and is found in many different pieces of legislation.[5] This can be seen in Annex 1 and Annex 2 of this paper which lists the various pieces of legislation that governs the area of sexual offences in Northern Ireland.

2.2 Strengthening the Law

The draft Order proposes to strengthen the law relating to sexual offences. The legislation intends to provide greater protection for children by providing more robust sentences for crimes against children. The draft Order also intends to provide greater protection for vulnerable groups such as those who have mental health disorders or are in relationships of trust (including situations where children are in young offender’s institutions, foster care, in health setting or educational institutions).[6]

Some examples of strengthened sentences include:[7]

  • Sexual activity with children-from a max of 10 years for indecent assault and indecent conduct towards a child to 14 years for sexual activity with a child and life for serious assaults on a child under 13;
  • Sexual Activity with someone aged 14 or 15- currently 2 years for UCK or indecent assault, but a max of 14 years in the Order if defendant is over 18;
  • For other serious assaults not including Rape – from 10 years to life;
  • For keeping a Brothel-up to 7 years.

2.3 Clarifying the Law

Another objective behind the reform of sexual offences legislation in Northern Ireland is to clarify the law by:[8]

  • providing a legal definition of consent;
  • widening the definition of rape to include oral penetration;
  • Providing absolute protection for children under the age of 13.

2.4 Modernising the Law

The Government states that the proposed Order will modernise the law on sexual offences by creating new offences, for example:

  • Assault by Penetration;[9]
  • Offences intended to protect children from abuse in the home or by extended family,[10] or administering substances such as “date-rape” drugs;
  • Offences relating to prostitution, such as soliciting and kerb crawling,[11] which have also been proposed in light of concerns about prostitution activity in the Belfast area.[12]

The draft legislation proposes that all offences will be gender neutral.[13] The Northern Ireland Office’s (NIO) consultation in 2006, entitled“Reforming the Law on Sexual Offences in Northern Ireland” highlights that current legislation is mostly gender specific.[14] This consultation provides the example of the offence of sexual intercourse with a girl aged under 17. The offence only punishes men for the offence of unlawful carnal knowledge; however this offence does not apply to a woman who has sexual intercourse with a boy aged under 17. According to the NIO consultation (2006), this“leads to anomalies and inconsistencies in the way offenders are dealt with for what is similar behaviour”.[15]

The Government also proposes that the draft legislation will be non discriminatory and that “consensual activity between adults in private will not fall within the criminal law”.[16] The NIO consultation (2006) highlighted that current criminal legislation discriminates against people on the grounds of their sexual orientation such as the offence of buggery and recommended that this offence be repealed.[17]

2.5 Bringing NI Into Line with the Rest of UK

The Government have proposed to reduce the age of consent in NI from 17 to 16, in line with the rest of the UK. The NIO consultation (2006) states that there is no legal definition of an age of consent; however“the law created offences prohibiting sexual intercourse with girls under particular ages.”[18] The consultation considered the age of consent in other jurisdictions, including Scotland, England and Wales, in which comparable offences provide protection up to and including the age of 15. The consultation also highlights that many people in NI believe that the age of consent is the same as in England and Wales.[19]

The NIO consultation considered evidence from a Home Office report in 2000, preceding the introduction of the Sexual Offences Act 2003 called “Setting the Boundaries”. According to the NIO in their consultation in 2006, the evidence in “Setting the Boundaries” has suggested that children physically mature earlier, can leave school at the age of 16, get full time employment and marry.[20],[21] The NIO subsequently proposed that “offences relating to sexual activity between adults and children should be framed to protect those below the age of 16”.[22]

3 Comparative Information on Sexual Offences Legislation from England, Wales and the Republic of Ireland

3.1 Main Features of Sexual Offences Legislation in England and Wales

The legislation governing all sexual offences in England and Wales is the Sexual Offences Act 2003.[23] Until the introduction of this legislation, the law relating to sexual offences in England lacked coherence, structure and reflected“the social attitudes towards sexual behaviour and the roles of men and women of the latter part of the nineteenth century”.[24]

This piece of legislation is very similar to the proposed NI Order as it covers a number of various types of sexual offences in Part 1 of the Act, including:

  • Non consensual offences such as Rape, Assault and causing sexual activity without consent (Sections 1-4);
  • Sexual Offences committed against children (Sections 5-15);
  • Abuse of trust (Sections 16-24);
  • Familial sex offences (Sections 25-29);
  • Offences against persons with a mental disorder (Sections 30-44);
  • Indecent photographs of children (Sections 45-46);
  • Abuse of Children through prostitution and pornography (sections 47-51);
  • Offences relating prostitution (Sections 52-56);
  • Trafficking (Sections 57-60);
  • Preparatory Offences, including administering a substance with intent (Sections 61-63);
  • Sex with an adult relative;
  • Other offences including voyeurism, exposure and intercourse with an animal and corpse (Sections 66-71);
  • Offences committed outside the UK (Section 72).

Part 2 of the Act contains a number of provisions to protect the public from sexual harm including notification orders, sexual offences prevention orders and foreign travel orders. Part 3 of the Act contains general provisions including commencement and amendment provisions.

3.2 Sexual Offences Legislation in The Republic of Ireland

The law relating to sexual offences in the Republic of Ireland (ROI) can be found in various statutes. Details of sexual offences and relevant statutory provisions can be found in Annex 3 of this paper. A point worth highlighting about sexual offences legislation in ROI is the issue of the age of consent, which is 17 years of age. The relevant statutory provisions dealing with this is the Criminal Law (Sexual Offences) Act 2006, which makes it unlawful to have sexual contact with a person under 17 years of age.[25]

4 Conclusion and Potential Issues for Consideration

The intention behind the introduction of the Draft Sexual Offences (NI) Order 2007 is to harmonise, modernise, strengthen and clarify the law on sexual offences on Northern Ireland. Furthermore the Government proposes to bring NI into line with the England and Wales, which has a single statute consolidating the law on sexual offences, the Sexual Offences Act 2003. The Government also proposes to bring NI into line with the rest of the UK with regards to the issue of the age of consent which is 16 in England, Wales and Scotland.

This paper has also considered legislation in the Republic of Ireland which is similar to current sexual offences legislation in NI, in that it can be found in various statutes and the age of consent is 17 years of age.

The Ad Hoc Committee may wish to consider the following:

  • Whether Sexual Offences legislation in NI should continue to be contained in various pieces of legislation, as it is currently and also the case in ROI;
  • Whether the age of consent should be brought into line with the rest of the UK and reduced from 17 to 16, or remain at the age of 17, which is currently the case in NI and ROI.

Annex 1-Current Legislation in NI Governing Sexual Offences (not included in Sexual Offences Act 2003)[26]

OffenceLegislation
Rape
  • S. 48 Offences Against the Person Act 1861 provides for punishment for rape
  • Art. 18 Criminal Justice (Northern Ireland) Order 2003 defines rape as genital or anal penetration by the penis without consent
Buggery
  • Art. 19 Criminal Justice (Northern Ireland) Order 2003 lists exceptions to offence of buggery
Assault with Intent to Commit Buggery
  • Art. 20 Criminal Justice (Northern Ireland) Order 2003
Assault with Intent to Commit Rape
  • S.2 The Attempted Rape, etc., Act (Northern Ireland) 1960
Indecent Assault on a Female
  • S.52 Offences Against the Person Act 1861
Indecent Assault on a Male
  • Art. 21 Criminal Justice (Northern Ireland) Order 2003
Carnal Knowledge of a Girl Under 14
  • S.4 Criminal Law Amendment Act 1885
Indecent Assault
  • S.52 Offences Against the Person Act 1861
Carnal Knowledge of a Girl Under 17
  • S.5 Criminal Law Amendment Act 1885
Indecent Conduct Towards a Child
  • S.22 Children and Young Persons Act (Northern Ireland) 1968
Indecent Behaviour
  • S.9 Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968
Allowing a Child or Young Person to be in A Brothel
  • S.23 Children and Young Persons Act (Northern Ireland) 1968
Householder etc Permitting The Defilement of a Girl Under 17 on His Premises
  • S.6 Criminal Law Amendment Act 1885
Offences Against Women, Offences Against Patients
  • Art.122 & 123 Mental Health (Northern Ireland) Order 1986
Procuration of a Woman or Girl Under 21 by Drugs/Threats etc. to Have a Carnal Connection with Another
  • S.3 Criminal Law Amendment Act 1885

Annex 2: Offences in Sexual Offences Act 2003 which apply in Northern Ireland[27]

DescriptionOffencesReferenceMaximum Sentence
Child Sex Offences Meeting a child following grooming S 15 10 Years
Abuse of a position of trust Sexual Activity with a child S 16 5 years
Sexual activity in the presence of a child S 18 5 years
Causing a child to watch a sexual act S 19 5 years
Abuse of children through prostitution and pornography Paying for the sexual services of a child S 47
  • Penetration of under 13: life
  • Non-penetration of under 17: 14 years
  • 17-18 – 7 years to 14 years
Causing or inciting child prostitution or pornography S 48 14 years
Controlling a child prostitute or a child involved in pornography S 49 14 years
Arranging or facilitating child prostitution or pornography S 50 14 Years
Exploitation of prostitution Causing or inciting prostitution for gain S 52 7 years
Controlling prostitution for gain S 53 7 years
Trafficking Trafficking into the UK for sexual exploitation S 57 14 years
Trafficking within the UK for sexual exploitation S 59 14 years
Trafficking out of the UK for sexual exploitation S 66 2 years
Other offences Exposure S 66 2 years
Voyeurism S 67 2 years
Intercourse with an animal S 69 2 years
Sexual penetration of a corpse S 70 2 years
Sexual activity in a public lavatory. S 71 6 months

Annex 3- Sexual Offences Legislation in the Republic of Ireland[28]

OffenceLegislation
Rape
  • Criminal Law (Rape) Act 1981
  • Criminal Law (Rape) (Amendment) Act 1990
Sexual Assault/Aggravated Assault
  • Section 2 Criminal Law (Rape) Amendment Act 1990
Statutory Rape
  • Criminal Law (Sexual Offences) Act 2006 makes it unlawful to have sexual contact with a person under 17
Defilement of a child under 15
  • Criminal Law (Sexual Offences) Act 2006
Defilement of a child Under 17 Years
  • Section 3 of the Criminal law (Sexual Offences) Act 2006 as amended by section 5 of the Criminal Law (Sexual offences) (Amendment) Act 2007
Reckless Endangerment of Children
  • Criminal Justice Act 2006
Incest
  • Criminal Law (Incest Proceedings) Act 1995
Sexual Offences involving People with disabilities
  • Section 5 Criminal Law (Sexual Offences) Act 1993
Child Trafficking and Pornography
  • Child Trafficking and Pornography Act 1998, amended by Section 6 of the Criminal Law (Sexual Offences) (Amendment) Act 2007

[1] See press release for the Northern Ireland Office at the following link http://www.nio.gov.uk/goggins-announces-complete-reform-on-sexual-offences-laws/media-detail.htm?newsID=14869

[2] The Explanatory document on the proposed Draft Sexual Offences (Northern Ireland) Order 2007, Pg 7 , see at the following link http://www.nio.gov.uk/explanatory_document_for_draft_sexual_offences_(ni)_order_2007-2.pdf

[3] http://www.belfasttelegraph.co.uk/news/local-national/article3177526.ece

[4] Id.

[5] The Explanatory document on the proposed Draft Sexual Offences (Northern Ireland) Order 2007, Pg 7.

[6] See Explanatory Document of the draft proposed Sexual Offences (NI) Order 2007, Pg 7.

[7] The following information is obtained from NIO Press release at the following link http://wwww.nio.gov.uk/goggins-announces-conmplete-reform-on sexual-offences-laws/...

[8] Id.

[9] http://www.nio.gov.uk/goggins-announces-complete-reform-on-sexual-offences-laws/...

[10] Ibid, Pg 8.

[11] Id.

[12] NIO “Reforming the Law on Sexual Offences in Northern Ireland” Pg 6, Vol 1 see following link http://www.nio.gov.uk/reforming_the_law_on_sexual_offences_in_northern_ireland_consultative_document_-_volume_1.pdf

[13] See Explanatory Document of the draft proposed Sexual Offences (NI) Order 2007, Pg 8.

[14] http://www.nio.gov.uk/reforming_the_law_on_sexual_offences_in_northern_ireland_consultative_document_-_volume_2.pdf , Pg 60

[15] Id.

[16] Explanatory Document of the draft proposed Sexual Offences (NI) Order 2007, Pg 8.

[17] http://www.nio.gov.uk/reforming_the_law_on_sexual_offences_in_northern_ireland_consultative_document_-_volume_2.pdf , Pg 63

[18] Ibid, Pg 36.

[19] Ibid, Pg 39

[20] Id.

[21] Note that Children in NI can get married if they are aged 16 years if they have consent of both parents, or consent of local trust if in care. If consent is refused by parents, or in the case where a child is in care, by the local trust, the child can make an application to the courts. See http://www.childrenslawcentre.org/get_married.htm

[22] Id.

[23] http://www.opsi.gov.uk/acts/acts2003/20030042.htm

[24] Card, Cross and Jones (2004) Criminal Law, Lexis-Nexis, Butterworths, UK, Pg 310.

[25] http://www.citizensinformation.ie/categories/justice/criminal-law/criminal-offences/law_on_sex_offences_in_ireland

[26] Information obtained from NIO Consultation document “Reforming the Law on Sexual Offences in Northern Ireland”, July 2006, Pgs 89-104. See at following link http://www.nio.gov.uk/reforming_the_law_on_sexual_offences_in_northern_ireland_consultative_document_-_volume_2.pdf

[27] Table obtained from NIO Consultation document “Reforming the Law on Sexual Offences in Northern Ireland” ,July 2006, Pgs 87-88. see at following link http://www.nio.gov.uk/reforming_the_law_on_sexual_offences_in_northern_ireland_consultative_document_-_volume_2.pdf

[28] Information obtained from the Citizens Information Board at the following link http://www.citizensinformation.ie/categories/justice/criminal-law/criminal-offences/la...

Research and Library Services

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Research Paper

December 2007

The Wording and Effect of the Draft Sexual Offences (NI) Order 2007

Fiona O’Connell

The Government has announced a consultation on a proposed Draft Sexual Offences (NI) Order. To facilitate members of the Ad Hoc Committee in their consideration of the proposed Draft Sexual Offences (NI) Order 2007, this paper will consider the provisions of the draft Order including the wording and effect of the legislation.

Research Papers are compiled for the benefit of Members of The Assembly and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public.

Summary of Key Points

  • The Secretary of State for Northern Ireland has announced a consultation on the proposed Draft Sexual Offences (Northern Ireland) Order 2007.
  • The policy objectives behind the draft Order are to harmonise, modernise, strengthen and clarify the law relating to sexual offences.
  • The draft Order proposes to include:
  • Non consensual offences;
  • Sexual offences against children;
  • Sexual offences against a person with a mental disorder;
  • Prostitution;
  • Miscellaneous sexual offences; and
  • Supplementary and General Provisions.
  • The Ad Hoc Committee may wish to consider the following:
  • Whether all the sentences in the legislation particularly relating to children reflect the intention of the legislation to provide greater protection for children and young people;
  • Whether NI should be brought into line with the rest of the UK and reduce the age of consent from 17 to 16;
  • Whether trafficking offences should be dealt with under separate legislation, the Sexual Offences Act 2003, or whether the offences should be dealt with under the draft Order, particularly if the intention behind the Order is harmonise sexual offences legislation

Contents

1 Introduction

2 Provisions in Draft Sexual Offences (NI) Order 2007

2.1 Non Consensual Sexual Offences

2.2 Sexual Offences Against Children

2.3 Sexual Offences against a Person with a Mental Disorder

2.4 Prostitution

2.5 Miscellaneous Sexual Offences

2.6 Supplementary and General Provisions

3 Potential Issues for Consideration

1 Introduction

The Secretary of State for Northern Ireland, Paul Goggins, has announced proposals to make changes to current sexual offences legislation.[1] There has been a previous consultation by the Northern Ireland Office, entitled “Reforming the Law on Sexual Offences in Northern Ireland”, which ran from July until October 2006. The responses to this consultation formed the basis of the proposed Draft Sexual Offences (Northern Ireland) Order 2007. The consultation on the proposed Draft Sexual Offences (Northern Ireland) Order 2007 (hereafter known as the draft Order) is to run until February 2008 and it is anticipated the legislation will come into force in May 2008.[2] The policy objectives behind this draft legislation are to strengthen, modernise and harmonise the law on sexual offences and also to bring legislation in Northern Ireland into line with England and Wales.[3]

This paper is to facilitate the Ad Hoc Committee in their consideration of the proposed Draft Order. Section 2 provides an overview of the provisions contained within the draft Order and considers the wording and effect of the legislation. Section 3 identifies some potential issues for the Committees consideration.

2 Provisions in Draft Sexual Offences (NI) Order 2007

The draft Order proposes to make changes in the following areas:

  • Non-Consensual Sexual Offences;
  • Sexual Offences against Children;
  • Sexual Offences Against a person with a mental disorder;
  • Prostitution;
  • Miscellaneous sexual offences;
  • Supplementary and General Provisions.

2.1 Non Consensual Sexual Offences

Non consensual offences are set out in Part 2, Articles 5-8 of the draft Order. Non consensual offences encompass the following:

  • Rape;
  • Assault by penetration;
  • Sexual assault
  • Causing a person to engage in sexual activity without consent.

The draft Order also contains provision for evidential and conclusive presumptions about consent. Article 9 sets out that the complainant is taken not to have consented unless evidence can be presented to raise an issue about consent. Article 10 of the draft Order outlines that there are circumstances in which it can be conclusively presumed that a complainant has not given consent. These circumstances include deception and impersonation.

The main points arising from the above are that the definition of rape has been extended to include oral penetration and a new offence has been created of assault by penetration by a body part or anything else. [4]

2.2 Sexual Offences against Children

Part 3 Articles 12-42 of the draft Order relate to Sexual Offences against Children. These offences include:

  • Rape of a child under 13 (Article 12);
  • Assault of a Child under 13 by penetration (Article 13);
  • Sexual Assault of a child under 13 (Article 14);
  • Causing or inciting a child under 13 to engage in sexual activity (Article 15);
  • Sexual activity with a child; causing or inciting a child to engage in sexual activity (Articles 16, 17);
  • Engaging in sexual activity in the presence of a child (Article 18);
  • Causing a child to watch a sexual act (Article 19);
  • Sexual offences against children committed by children or young persons (Article 20);
  • Arranging or facilitating commission of a sex offence against a child (Article 21);
  • Meeting a child following sexual grooming (Article 22);
  • Abuse of position of trust (Articles 23-29);
  • Familial sex offences against a child (Article 32-36) (NB: the order would expand the definition of familial relationship); and
  • Abuse of children through prostitution or pornography and taking indecent photographs of children (Articles 37-42).

There are some points about the age of consent that are worth highlighting, including:

  • As regards children under 13, consent is completely irrelevant. The offences of rape, assault by penetration, sexual assault and causing a child under 13 to engage in sexual activity are all committed irrespective of whether the child under 13 consented.
  • If a child is over 13 but under 16 and consents to sexual intercourse then the offence of sexual activity with a child is committed (Article 16).However If a child is aged between 13 and 16 and does not consent to sexual penetration, then the offence of rape or assault by penetration (Articles 5, 6) has been committed, which carry heavier sentences.
  • For most purposes, the proposed legislation reduces the age of consent to 16. However, for some offences the consent of a person aged under 18 is irrelevant. The legislation provides protection in certain circumstances for children and young people up to the age of 18; these are the provisions relating to abuse of position of trust (Articles 23-29), familial sex offences (Articles 32-36), and abuse of children through prostitution and pornography and indecent photographs of children (Articles 37-42).

There are some possible issues arising from the proposed legislation, including:

  • Articles 12 and 13 deal with the rape of a child under 13 and the assault of a child under 13 by penetration. Both offences carry a maximum sentence of life. Article 16 provides for an offence of sexual activity with a child, and has a maximum sentence of 14 years. There is an overlap here: certain acts would appear to be punishable under either Article 16 or the earlier Articles. It might be worth querying whether this overlap is intentional and the reasoning behind it.
  • The draft Order reflects the transnational problem of sexual abuse of children. Article 21 sets out that a person commits an offence if “he intentionally arranges or facilitates something that he intends to do, intends another to do, or believes that another person will do, in any other part of the world”, that would violate Articles 16-20.[5] Article 21 does not refer to the more serious offences in Articles 12-15, which include rape of a child. It might be worth querying the reason for this omission.
  • Article 37 makes it unlawful to pay for the sexual services of a child under 18. The Article provides for three different maximum penalties depending on the age of the child. If the child is aged between 16 and 18 the maximum penalty is 7 years. If the child is under 16, then the maximum penalty is 14 years. (In both these cases, there is the possibility of a shorter sentence or a fine if there is a trial without a jury.) If the child is under 13 and the sexual activity includes penetration, then the maximum penalty is life. The other Articles dealing with prostitution involving children do not provide for different penalties depending on the age of the child (Articles 38-40). It might be queried why there are different maximum penalties under Article 37 but not these other Articles.

2.3 Sexual Offences against a Person with a Mental Disorder

Part 4 of the draft Order makes provisions in the cases of sexual offences against persons suffering from a mental disorder.[6] These offences fall into three categories:

  • offences against persons with impaired mental capacity to consent to sexual activity (Articles 43-46) ;
  • consent to sexual activity by inducement, threats or deception of persons with a mental disorder (Articles 47-50);
  • Sexual activity between a care worker and a person with a mental disorder by abuse of position of trust (Articles 51-57).

2.4 Prostitution

The issue of prostitution is dealt with by Part 5, Articles 58-65 of the draft Order. It creates new offences dealing with loitering, soliciting and kerb-crawling. The draft Order contains provisions relating to exploitation of prostitution particularly soliciting and kerb-crawling, and brothel keeping.[7]

The Government has proposed that trafficking offences will continue to be covered by the relevant provisions of the Sexual Offences Act 2003 that apply to Northern Ireland.[8]

2.5 Miscellaneous Sexual Offences

Part 6 of the draft Order deals with a number of miscellaneous offences for example preparatory offences including:

  • Administering a substance with intent to commit a sexual offence (Art 66);
  • Committing an offence with intent to commit a sexual offence (Art 67);
  • Trespass with intent to commit a sexual offence (Art 68);
  • Sex with an adult relative (Articles 69-70);
  • Exposure (Art 71);
  • Voyeurism (Articles 72-73),
  • Intercourse with an animal, intercourse with a corpse and sexual offences in a public lavatory (Articles 74-76).
  • Offences outside the UK

2.6 Supplementary and General Provisions

The draft Order contains supplementary and general information in Part 7. In particular it contains a clause setting out the exceptions to aiding, abetting or counselling.[9] This means for example that a person is not guilty of aiding, abetting or counselling a sexual offence if it is for the purposes of protecting a child from sexually transmitted infection or pregnancy or promoting the child’s well -being by giving advice, for example sexual health or contraceptive advice. However a person would not fall under these exceptions if they were providing counselling in order to obtain sexual gratification for themselves.[10]

This section also sets out powers of the Secretary of State to make orders or rules under this Order.

3 Potential Issues for Consideration

There are a number of potential issues which the Committee may wish to consider from the above sections including:

1. Whether all the sentences in the legislation particularly relating to children reflect the intention of the legislation to provide greater protection for children and young people;

2. Whether NI should be brought into line with the rest of the UK and reduce the age of consent from 17 to 16;

3. Whether trafficking offences should be dealt with under separate legislation, the Sexual Offences Act 2003, or whether the offences should be dealt with under the draft Order, particularly if the intention behind the Order is harmonise sexual offences legislation.

[1] See press release for the Northern Ireland Office at the following link http://www.nio.gov.uk/goggins-announces-complete-reform-on-sexual-offences-laws/media-detail.htm?newsID=14869

[2] http://www.belfasttelegraph.co.uk/news/local-national/article3177526.ece

[3] The Explanatory document on the proposed Draft Sexual Offences (Northern Ireland) Order 2007, Pg 7 , see at the following link http://www.nio.gov.uk/explanatory_document_for_draft_sexual_offences_(ni)_order_2007-2.pdf

[4] Ibid, Pg 9

[5] 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; causing a child to watch a sexual act; and sexual offences against children committed by other children.

[6] Ibid, Articles 43-55.

[7] Ibid, Art 65

[8] The Explanatory document on the proposed Draft Sexual Offences (Northern Ireland) Order 2007, Pg 7 , see at the following link http://www.nio.gov.uk/explanatory_document_for_draft_sexual_offences_(ni)_order_2007-2.pdf

[9] Draft Sexual Offences (Northern Ireland) Order 2007,Article 78

[10] The Explanatory document on the proposed Draft Sexual Offences (Northern Ireland) Order 2007, Pg 47 , see at the following link http://www.nio.gov.uk/explanatory_document_for_draft_sexual_offences_(ni)_order_2007-2.pdf

Submission from the 
NSPCC Northern Ireland

Summary

The NSPCC are supportive of many of the provisions in the draft Sexual Offences Order having campaigned to ensure that children in NI had the same protection brought in by new offences in England and Wales in the Sexual Offences Act 2003. The Order codifies NI law into one statute and introduces new offences, stronger tariffs and removes consent as defence for sex with a child under 13.

We have concerns about the operation of offences relating to children and problems caused by mandatory reporting provisions in section 5 of the Criminal Law (Northern Ireland) Act 1967.

We are supportive of the age of consent being set at 16 with stronger protections for children under 13 and 14 to 15. We are, however, concerned that policy and guidance need to ensure that children can seek help in a confidential way about sexual health matters but are protected from abuse and exploitation, where this is necessary.

We strongly recommend that abuse of trust provisions are extended to sports coaches and that the legislation contains provisions relating to the assessment and treatment of young people engaged in sexually harmful behaviour.

We are of a view that some amendments could be made to sentencing tariffs for certain provisions.

Introduction

1. The NSPCC welcomes the opportunity to provide evidence in relation to the NIO’s draft Sexual Offences Order. Our comments are only to those aspects of the Order which relate to child protection.

2. The NSPCC is the lead child protection NGO, which uniquely among charities, has Authorised Status (under the Children (NI) Order 1995) to protect children. The organisation recently amalgamated with ChildLine and provides a range of services to investigate, protect and prevent child abuse. These include: therapeutic teams, helplines and listening services, an assessment and investigation service, a Child Protection in Sport Unit, Stop it Now!, a regional Young Witness Service, Schools Counselling teams and domestic violence services. NSPCC also provides assessment and treatment services to young people who display sexually harmful behaviour; this work is linked to the Risky Children/Children at Risk Group which provides a multi-agency focus for sexually harmful behaviour practice and policy in Northern Ireland. There is considerable experience within the NI Division of work with adult sex offenders. The organisation has a Policy and Research Unit in Northern Ireland and all of our services are part of the national UK strategic framework for services to children and young people.

General Comments

3. The NSPCC is very supportive of the UK government’s intention to modernise the law in this important area and indeed has campaigned to ensure NI law was brought into line with that in England and Wales in the Sexual Offences Act 2003. At the time of the Act’s passage, it was agreed by then NIO Minister John Spellar MP that a separate consultation would take place on Sections 1-14 of Part 1 of the Sexual Offences Act ‘the new offences’.

4. In terms of the legislation we thought it helpful to set out some key issues. The NSPCC welcomes many of new provisions as they relate to the protection of children. In particular:

a. New gender neutral offences which can be applied to males and females where this is possible;

b. Increased tariffs for offences and new offences. For sexual activity with children, from a maximum of 10 years for indecent assault and indecent conduct towards a child, to 14 years for sexual activity with a child and life for serious assaults on children under 13. For sexual activity with someone aged 14 or 15, currently 2 years for UCK or indecent assault but a maximum of 14 years in the Order providing the defendant is over 18;

c Removal of consent as a defence for sex with a child under 13 which will be always rape;

d. Codifying in one statutory provision all sexual offences legislation in NI. The Order repeals NI provisions in Part 1 of the Sexual Offences Act 2003 and re-enacts these in the Order.

Age of consent

5. We are supportive of the setting of the age of consent at 16. In many ways there are misunderstandings of the way in which our current age of consent is set which creates unlawful carnal knowledge offences for boys (but not girls) in consensual relationships between teenagers. Despite having a higher age of consent than other parts of the UK, we have one of the highest levels of teenage pregnancy in the UK and the current age of consent has largely been superseded by the Frazer guidelines on consent to contraceptive advice in the 1985 Gillick v West Norfolk House of Lords case. The NSPCC sees this proposal as bringing NI into line with the rest of the UK and ensuring young people have access to the same rights and protections. We do not view these measures as encouraging young people to engage in under age sexual activity but are firmly of the view that they will need to be implemented in terms of a strategic approach to the sexual health needs of young people.

Areas where we think the legislation is weak or has missed

6. However there are a number of issues missing from the legislation we remain concerned about, which we would bring to the Committee’s attention, as follows.

Under age sexual activity

7. The Sexual Offences Act lowered the bar for consensual sexual activity between children under 16, technically criminalising any form of sexual behaviour that is consenting. In England and Wales prosecutions are left to the discretion of the Crown Prosecution Service (CPS) and CPS guidance with the policy intention of screening out cases. This creates problems in NI when considered in the light of Section 5 of the Criminal Law (Northern Ireland) Act 1967 which currently requires the reporting of an arrestable offence to the police. We are very concerned that the Order is silent on the need to revoke Section 5; we cannot see how Article 20 will work for example, in the event of two under 16 year olds kissing, technically both will be deemed to be victims and offenders. Consider the implications for a teacher who sees this technical offence knowing the requirement to report to the police. We would seek assurances that:

a. Section 5 will be repealed. NSPCC in Northern Ireland has done extensive research into the operation of the mandatory reporting of child abuse. Our research shows that there is little evidence to suggest that it better protects children and young people and may indeed be counterproductive in terms of young people accessing services; and

b. That both Public Prosecution Service (PPS) and the police will develop guidance to ensure that young people are not inappropriately prosecuted for consensual and non abusing sexual activity.

8. This legislation cannot be taken forward in isolation from the related work in other government departments and does not address the need for a cross-departmental strategy to deal with reducing of teenage pregnancy rates. We are concerned that there is not commonality of understanding between officials in NIO and various NI government departments and between professionals working in family planning and child protection. The Order, as does the Act, exempts those providing counselling and health advice from offences (Article 78). We would wish children and young people to be encouraged to seek help and advice when they need it and conversely protected from abuse. However we are concerned that there should be a clear understanding of current guidance for health and social care professionals in terms of ensuring a multi-agency assessment of sexually active young people where there are risks of abuse or exploitation.

9. We have suggested to officials in NIO the need for a roundtable discussion with key stakeholders particularly health to review the current guidance in advance of implementing the legislation and to reach common agreement for its implementation. There is a need for guidance, policy and legislation to work in conjunction to safeguard the welfare of children in advance of the order’s implementation.

10. We are very concerned that despite a substantial submission to government, the NIO have chosen to largely simply replicate sections of the Sexual Offences Act to NI and have not looked at other areas or issues which could benefit from legislation.

Abuse of Trust

11. The Sexual Offences Act introduced the concept of abuse of trust designed primarily to protect 16 and 17 year olds from various forms of sexual activity, which while consensual, are inappropriate and an abuse of trusting relationships. This includes a range of prescribed settings where children are looked after or accommodated, schools, children’s homes etc. The Secretary of State has power under Article 28 to extend the list of situation posts covered by abuse of trust provisions.

12. At the time of the NIO consultation we made strong representations to ensure that abuse of trust provisions were extended to sports coaches in particular and are disappointed that this has not happened. We are aware of a number of cases in Northern Ireland where sports have reported inappropriate and abusive relationships between an adult coach and young athlete has developed.

13.The NSPCC would strongly recommend that the Abuse of Trust definitions in Article 28 should be extended to include sports coaches.

Children who sexually harm others

14. Neither the consultation paper, nor the Order address the issue of children and young people who sexually harm others and this is a major concern of the NSPCC. Approximately one third of adult sex offenders start offending when they are under 18 and research has shown the success of early intervention and treatment. It is vitally important to ensure that any sexual offences legislation takes account of, and provides for, the needs of this group of children and young people.

15. There are two particular elements to children who sexually harm: those who have been abused themselves who may abuse other children and children who sexually harm who need to have access to treatment programmes in the context of multi-professional assessment. In respect of the latter, guidance in dealing with children who sexually harm is weak and co-ordination and practice across the wide range of agencies involved can be very poor. This can be contrasted to the robust investment by agencies in Multi- Agency Sex Offender Risk Assessment and Management (MASRAM) arrangements for adult offenders. It is anticipated that this point will be re-inforced by the DHSSPS-sponsored research to be published later this year (Include Youth, publication pending). The role of the Public Prosecution Service (PPS) is key to ensuring children are provided with special protections from unmerited prosecutions and lifelong consequences of a conviction and offence that is scheduled under the Children and Young Persons (Northern Ireland) Act 1967. Neither the Sexual Offences Act, nor the consultation document address the issue. In our response to the NIO consultation we recommended that:

a. The proposed Sexual Offences Order contains a provision requiring the Secretary of State to issue mandatory guidance in the form of a prosecution protocol setting out processes and considerations for making informed prosecution decisions and the use of diversionary youth conference arrangements available uniquely in NI under Part 4 of the Justice (NI) Act 2002; and

b. The future revision of DHSSPS guidance Co-operating to Safeguard Children should clearly set out more detailed guidance on interagency co-operation, assessment and management of children who harm others which should include multi agency input.

Sentencing

16. We would suggest the Committee look at the issue of sentencing within the Order relating to offences of Causing or inciting abuse of a child through prostitution or pornography, controlling a child involved in prostitution or pornography and, arranging or facilitating abuse of a child through prostitution or pornography. The NSPCC are of the view that the tariff for this offence is unduly lenient compared to the higher tariff of Paying for sexual services of a child. We suggest that higher tariff sentences in the proposed Order should be applied to those who organise and facilitate child prostitution which we refer to as child exploitation. It would be wrong for the person who controls a 10 year old in child exploitation to attract a lower sentence than person who paid for sex with the same 10 year old. 

NSPCC
Northern Ireland
8th January 2008

Contact details:

Colin Reid
Policy and Public Affairs Manager
NSPCC
Jennymount Industrial Estate
Belfast BT15 3HN
Creid@nspcc.org.uk
07920234278

Submission from The Christian Institute

Introduction

The Christian Institute is a non-denominational charity established for the promotion of the Christian faith. We have approximately 3,500 supporters throughout Northern Ireland. This includes 388 churches and church leaders from across the Christian denominations. During 2007 the Institute addressed 105 meetings in churches and other Christian organisations across the Province. We operate a full-time office in Belfast.

We uphold traditional, mainstream Christian beliefs about marriage and sexual ethics. In our efforts to promote these beliefs, we have previously contributed to public debates on issues such as divorce law reform, medical ethics and alcohol licensing. Earlier this year the Institute was involved, along with five church denominations in Northern Ireland, in bringing forward a judicial review of the Sexual Orientation Regulations.

The Christian Institute also works with Christian people who have been discriminated against because of their religious beliefs. We have been involved in a number of legal cases to defend the religious liberties of churches and individual Christian people.

Why the age of consent should stay at 17

It is impossible to consider a reduction in the age of consent without considering its effect on child protection, health, marriage and the family.

1. Protection from abuse

In law a person remains a child until they are 18.

Northern Ireland’s age of consent law means that children are deemed to be incapable of giving legal consent to sex below the age of 17. Consequently, any sexual activity with someone below that age is automatically a criminal offence.

It is well known that rape trials hinge on the issue of consent. This often means that (in order to best secure a conviction) the rape victim is placed in the witness box and faces cross examination by the defence barrister.

With an age of consent offence all the prosecution has to prove is that the sexual act took place. The child concerned is not required to testify in court that they did not consent, neither will they face cross-examination.

It is much easier to secure a conviction for a breach of an age of consent offence than it is to prove rape. In many borderline cases prosecutors can know that a rape prosecution would be unlikely to succeed and going in the witness box would involve severe trauma to the victim. For these reasons prosecutors can use the option of prosecuting an age of consent offence.

The Soham murderer, Ian Huntley, was accused on several occasions of having sex with underage girls. It emerged that North East Lincolnshire Social Services received four complaints of underage sexual relations against Huntley in the late 1990s.[1] Had the age of consent been properly enforced in these cases then he would not have been able to obtain a job in a school because of convictions on his record.

Lowering the age of consent removes an important protection for children and should not be taken away from them.

Sex Trafficking

The current age of consent law in Northern Ireland was put on the statute book because of the tireless campaign by Josephine Butler. She fought against the evils of human trafficking for the sex trade. Her key goal was to raise the age of consent from 12 (as it then was) to 16.[2] Her 18 year campaign led directly to the 1885 Criminal Law Amendment Act.

Sex trafficking is reported to be on the rise in Northern Ireland. A recent joint initiative was established between the Human Rights Commissions on both sides of the border to investigate human trafficking.[3]

Reducing protection for young people

Legislators wishing to lower the age of consent need to ask themselves, “Can this protection be safely removed from young people?”

The age of consent exists to protect children, and the lower it is, the more at risk young people are. The NI Sexual Offences Order recognises that 16 and 17 year olds are vulnerable and need protection. That is why they cannot be used for pornography.

Lowering the age of consentreduces the protection relating to sexual activity and exposes young people to greater danger. This change would represent exposing another 26,000 young people to the legal, potentially predatory, advances of adults.[4] This concern has already been expressed by the Belfast Rape Crisis Centre.[5]

2. Protection of child health and wellbeing

Bringing the age of consent down to 16 sends out completely the wrong signal by saying that sex is normal at a younger age. It also will have a damaging effect on the health and wellbeing of children.

Sex is not an activity for children. There are many activities which are unlawful for someone under the age of 18. They cannot gamble, buy knives (a recent change), buy alcohol from a bar, buy certain solvents, or own an imitation firearm.

Young people do not have the physical, emotional and psychological maturity necessary to cope with the consequences of sexual activity.

In 2001 the National Survey of Sexual Attitudes and Lifestyles asked a statistical sample of 16-24 year olds whether they had had sex before 16.[6] A Government study in the same year enables a comparison to be made with Northern Ireland.[7] The findings reveal a stark contrast, shown in table 1 below:

Table 1

  Percentage of 16-24 year olds that had sex before 16
Great Britain
27.9
Northern Ireland
15

The question legislators need to ask is whether they would rather 15% of under-16s engage in sexual activity or 28% (almost double the proportion - with all the attendant problems of teenage pregnancy and sexual disease).

The role of the age of consent no doubt makes a crucial contribution to this difference. Young people in the Province are safer for longer than their counterparts in Great Britain.

In other areas of health the Government is going in an opposite direction. In England and Wales the legal age for buying cigarettes has been raised to 18. Whilst smoking cigarettes is unhealthy and prolonged use results in many serious and often fatal illnesses, no one would ever argue that such consequences could follow from a single act of smoking. However, a single act of sexual intercourse can result in a young person becoming pregnant or contracting a serious, even fatal, disease.

If the age of consent is lowered there will inevitably be an increase in the number of young women travelling to the mainland for abortions.

Anal intercourse

The age of consent law covers anal intercourse as well as vaginal sex.

Anal sex carries particularly high health risks which 16 year olds would be exposed to if the age of consent was to be lowered. There are inherent health risks in anal intercourse because the rectal wall is not as tough as the vaginal lining, resulting in a greater danger that penetration will cause a tear, in turn leading to infection.

Professor Gordon Stewart (Emeritus Professor of Public Health at Glasgow University) has studied the comparative risk of HIV according to the type of sexual activity. He has calculated that for men the risk of acquiring HIV through anal intercourse is at least 2,700 times the risk from vaginal intercourse.[8]

Anal sex carries such a high medical risk for homosexual men that the UK Blood Transfusion Service will not accept blood from any man who has ever had sex with another man, even if it was ‘safe sex’ with a condom.[9] The condom company Durex said in October 2000: “Anal intercourse is a high risk activity because of the potential for infection from STDs including HIV transmission. Currently there are no specific standards for the manufacture of condoms for anal sex. Current medical advice is therefore to avoid anal sex.”[10]

Studies have shown that many boys and young men can experience a period of same-sex attraction in their youth. In the vast majority of cases it is a passing phase.

The effect of the reduction in the age of homosexual consent

It was very strongly argued that the age of homosexual consent needed to be reduced from 18 to 16 in Great Britain (and to 17 in Northern Ireland) in order to encourage young people to feel less inhibited about going for sexual health advice and treatment.

As a matter of fact since the age of homosexual consent was lowered in 2001 HIV infections have continued to increase.[11]

3. Protection of the family

As the Government has admitted, “marriage is the surest foundation for raising children”.[12] The best outcomes for children are for those who are raised by married parents. This is across a whole range of factors including health, education, likelihood to have a stable family as an adult, likelihood to experience abuse and likelihood to have a criminal record.

Children are best protected when family life is strong.

Sex is a powerful thing. This can be illustrated by the fact that throughout the world there are laws which govern sexual activity. Lowering the age of consent makes it more likely that young people engage in recreational sex. This will lead to more teenage pregnancies and promote the sort of family breakdown which is seen in Great Britain.

Currently, marriage in Northern Ireland is considerably stronger than in the rest of the UK. The most recent figures available show that the divorce rate in Northern Ireland is 57% of that in England and Wales (see table 2).

There are fewer children born outside of marriage in Northern Ireland as compared to England and Wales (see table 2). It is well known that couples who conceive children outside marriage often go on to marry within a year of the birth of a child. Probably a greater proportion of such couples marry in Northern Ireland.

Table 2

  Divorce rate per 1000 
married couples
Percentage of maternities 
outside marriage
England and Wales [13], [14]
12.2
44
Northern Ireland [15],[16]
7
38

The proportion of families headed by a cohabiting couple in Northern Ireland is half that in the rest of the UK.[17]

Table 3

  Proportion of families headed by a cohabiting couple
England
13
Scotland and Wales
12
Northern Ireland
6

All of these figures demonstrate the much greater strength of the family unit in Northern Ireland when compared to other UK regions. The question for legislators is “Should this be put at risk?”

Confronting the main arguments in favour of lowering age of consent:

We have considered the submissions from organisations which want to see the age of consent reduced to 16. We rebut the main arguments below:

  • The need for parity with the rest of the UK

No such need exists. Northern Ireland has its own legislative assembly, with members elected by the local population to govern the jurisdiction. There are distinct differences in the legal framework between Northern Ireland and the rest of the UK. The fact that the Abortion Act 1967 does not apply to Northern Ireland is a significant example. Alcohol licensing legislation is also different between both areas.

Parity must have been irrelevant to the Northern Ireland Office when it consulted on proposals to legalise teenage sex down to 13 where there were no more than 3 years between the parties. There is no parallel law in any other part of the UK.

In the Republic of Ireland, the only country to share a land border with Northern Ireland, the age of consent is 17. The change would mean that a paedophile living in the Republic would have an incentive to abuse young people in the North.

  • It is a commonly held belief, by young people in Northern Ireland, that the age of consent is 16 anyway

The burden is upon those making this claim to support it with evidence, which we have yet to see. Even if it were true, it does not justify a change in the law. We question whether public opinion in Northern Ireland would support a lowering of the age of consent.

  • Lowering the age of consent will help combat a high teenage pregnancy rate and spread of sexually transmitted diseases because young people would feel less inhibited about going for sexual health advice and treatment

A lower age of consent will not reduce teenage pregnancy rates – otherwise the teenage pregnancy rate in other UK regions would not be as high as it is. The obvious comparison to make is with England and Wales, where the age of consent is already 16.

There are 3 times as many children born or aborted by 15 year old girls in England and Wales than there are in Northern Ireland. At the age of 16 the figure is still 2.5 times as many (table 4).

Table 4

  Combined maternity and abortion figures per 1,000 girls
15 years of age
16 years of age
England and Wales[18],[19],
11.6
27.7
Northern Ireland [20],[21]
4
11.9

The pregnancy rates of 15 and 16 year olds are far higher in England and Wales than in Northern Ireland. The lower age of consent must be considered to be an important factor in this difference. The strength of Northern Ireland family life is another factor, but family life will be undermined by lowering the age of consent.

To suggest that lowering the age of consent will help to combat high teenage pregnancy rates flies in the face of clear evidence.

The rate of sexually transmitted infections (STIs) among under-16s is 2.5 times higher in England and Wales than it is in Northern Ireland (table 5).[22]

Table 5

  Sexually transmitted infections per 1,000 girls under 16
England and Wales
1.16
Northern Ireland
0.45

A critical difference between the two regions, which undoubtedly contributes to the higher rate of STIs in England and Wales, is the lower age of consent.

  • Research carried out by the Children’s Commissioner in 2004, found that young people and health professionals in Northern Ireland believe that an age of consent of 17 is discriminatory against young people in the Province

On the contrary, as seen from the above evidence, young people in Great Britain are suffering discrimination by having an age of consent at 16 rather than 17, exposing them to the risks of sexual activity at an earlier age.

  • Under the Sutherland v UK case, an unequal age of consent is discriminatory

The Sutherland v UK case related to the inequality of the age of consent between homosexual and heterosexual activity, not between geographical areas. It is therefore erroneous to cite the case as if it compelled harmonising the law between two legal jurisdictions.

[1] BBC News Online, 17 December 2003, as at 21 December 2007

[2] In 1950 it was raised again to 17 in Northern Ireland.

[3] The Belfast Telegraph, 23 June 2006; Belfast News Letter, 8 June 2006; The Belfast Telegraph (online), 30 May 2007

[4] See http://www.nisra.gov.uk/archive/demography/population/midyear/NI_Home_Pop_sya(1961-2006).xls as at 18 December 2007

[5] The Observer, 25 November 2007

[6] Erens B, McManus S, Prescott A et al, National Survey of Sexual Attitudes and Lifestyles II: Reference tables and summary report, page 27, table 1.1 and page 30, table 2.1

[7] Northern Ireland Health and Social Wellbeing Survey 2001, Sexual Health Results - First experience of sexual intercourse tables, page 1, see http://www.nisra.gov.uk/whatsnew/wellbeing/sexual_health/First%20experience%20of%20sexual%20intercourse.PDF as at 20 December 2007

[8] Stewart, G, ‘Scientific Surveillance and the Control of Aids: A Call for Open Debate’, Health Care Analysis, 2, 1994, pages 279-286

[9] ‘Why we ask gay men not to give blood,’ see http://www.transfusionguidelines.org.uk/index.asp?Publication=DL&Section=12&pageid=391 as at 19 December 2007

[10]http://www.durex.com/scientific/faqs/faq_4.html as at 26 April 2001

[11] HIV New Diagnoses Quarterly Surveillance Tables, Health Protection Agency, June 2007, table 3

[12] Supporting Families - A Consultation Document, Home Office, 1998, page 4, para 8

[13] Divorces fall by 7 per cent in 2006, ONS, see http://www.statistics.gov.uk/cci/nugget.asp?id=170 as at 20 December 2007

[14] Birth Statistics: Review of the Registrar General on Births and Patterns of Family Building in England and Wales, 2006, ONS, The Stationery Office, 2007, Table 3.2, page 10 [289,266/662,915=0.44]

[15] Married, re-married or separated couples, figures from Registrar General Annual Report 2006, NISRA, Section 8, Divorces, table 8.9

[16] Registrar General’s Annual Report 2006 – Section 3 Births, NISRA, 2007, Table 3.10 [8,772/23,044=0.38]

[17] Married couple families still the majority, ONS, see http://www.statistics.gov.uk/cci/nugget.asp?id=1161 as at 20 December 2007

[18] Taking 2006 figures of maternities (1,012, from Birth Statistics: Review of the Registrar General on Births and Patterns of Family Building in England and Wales, 2006, ONS, The Stationery Office, 2007, Table 3.2, page 10) plus abortions (2,948, from Statistical Bulletin – Abortion Statistics, England and Wales: 2006, Department of Health, ONS, 2007, Table 4a) divided by estimated 15 year old female population in thousands (342.5, from England and Wales; estimated resident population by single year of age and sex; Mid-2006 Population Estimates, ONS, StatBase, August 2007, Table 3); 1,012+2,948=3,960. 3,960/342.5=11.6

[19] Maternities, 3,537 (from Birth Statistics: Review of the Registrar General on Births and Patterns of Family Building in England and Wales, 2006, ONS, The Stationery Office, 2007, Table 3.2, page 10); Abortions, 5,859 (from Statistical Bulletin – Abortion Statistics, England and Wales: 2006, Department of Health, ONS, 2007, Table 4a); Population, 339.7 (from England and Wales; estimated resident population by single year of age and sex; Mid-2006 Population Estimates, ONS, StatBase, August 2007, Table 3); 3,537+5,859=9,396; 9,396/339.7=27.7

[20] Taking 2006 figures of maternities (29, from Registrar General’s Annual Report 2006 – Section 3 Births, NISRA, 2007, Table 3.10) plus abortions (23, taken from Statistical Bulletin – Abortion Statistics, England and Wales: 2006, Department of Health, ONS, 2007, Table 12c) divided by estimated 15 year old population in thousands (12.8, from Registrar General’s Annual Report 2006 – Section 2 Population, NISRA, 2007, Table 2.1); 29+23=52; 52/12.8=4.1

[21] Maternities, 113 (from Registrar General’s Annual Report 2006 – Section 3 Births, NISRA, 2007, Table 3.10); Abortions, approximately 39 (half 16-17 figure of 78 from Statistical Bulletin – Abortion Statistics, England and Wales: 2006, Department of Health, ONS, 2007, Table 12c); Population, 12.8 (from Registrar General’s Annual Report 2006 – Section 2 Population, NISRA, 2007, Table 2.1); 113+39=152; 152/12.8=11.9

[22] Totalled figures of Chlamydia, Gonorrhoea, Syphilis, Herpes and Warts in under-16s seen at GUM clinics in 2006 (from Diagnoses and Rates of Selected STIs as seen at GUM Clinics: 2002-2006, Health Protection Agency, table 2a (England=2293), table 3a (Wales=109) and table 5a (Northern Ireland=35)) divided by population figures in thousands for 13-15 year olds (NI=77.3 from Registrar Generals Annual Report 2006 – Section 2 Population, NISRA, 2007, Table 2.1; E&W=2071.8 from from England and Wales; estimated resident population by single year of age and sex; Mid-2006 Population Estimates, ONS, StatBase, August 2007, Table 3). 35/77.3=0.45 per 1,000 in Northern Ireland; 2402/2071.8=1.16 per 1,000 in England and Wales.

Submission from Barnardo’s

Introduction

Barnardo’s wants to thank the Committee for this opportunity to present on the Order.

We have responded to the draft Order and made comment publicly on a number of issues within the Order that affect the children and young people with which we work. Barnardo’s is the largest children’s charity in NI and worked with 9,000 children and young people and their families last year. We have drawn on our experience of working with children who have suffered from sexual abuse, and with young people who have been commercially sexually abused. We also provide a service for young people who have engaged in sexually harmful behaviour and would like to raise this issue within the context of the legislation.

There are a number of aspects of the Order that are of key interest for us and we will keep the scope of our presentation to this but are of course happy to answer a range of questions.

We welcome codifying in one statutory order all the sexual offences in NI and think this will make it easier for all those involved in using the legislation to use it in an effective way.

Tariffs and Offences

We welcome the increased tariffs included within the legislation and in particular the increase to 14 years for sexual activity with a child and life for serious sexual assaults on children under 13.

Under current Unlawful Carnal Knowledge legislation the tariff for unlawful sexual activity with someone under 14 and 15 is two years but this is changed to a maximum of 14 years in the legislation where the defendant is over 18.

We particularly welcome the removal of consent as a defence for sexual activity with a child under 13 which will now always be rape. We think this is particularly important for child witnesses.

We are disappointed that this has not been extended to under 16 year olds to sit in line with the ‘age of consent’. In a survey of Barnardo’s managers in England and Wales two years after the introduction of the Sexual Offences Act there; they believed that this distinction had caused difficulty and felt that the police were not as likely to conduct a rigorous investigation in cases of victims who were just over 13 than those just under. Many children between the ages of 13 and 16 are targeted by adults to be sexually abused and exploited. Many of these children may well be vulnerable because of previous life experiences and they are as much in need of protection as those under 13. Our experience is that thresholds are often determined by money and workloads and we are concerned that this will introduce a threshold were those under 13 are more likely to receive thorough investigations and action than those under 16.

We believe that accepting that all sexual activity with children under a specific age by those over the age of 18 should be illegal offers the best protection for children and young people.

Age of Consent

Barnardo’s recognises the inherent difficulties in setting forward any age of consent. We would wish to emphasize that the age of 16 specified in the Order is the age at which it is no longer a criminal offence to engage in sexual activity rather than the age at which young people should engage or be encouraged to engage in sexual activity.

16 is the age of consent in England, Scotland and Wales. The Order also neutralises the age across on gender terms and on this basis Barnardo’s agree to it’s introduction as the age of consent.

We also recognise from our work that it is often the most vulnerable young people who will engage in early sexual activity and that it is vital that these young people feel they can access information and advice in-terms of their sexual health.

Barnardo’s shares the earlier concerns raised by NSPCC in-relation to mandatory reporting and the need to repeal Section 5 of the Criminal Law Act NI 1967 and the need for both the PPS and the police will develop guidance to ensure that young people are not inappropriately prosecuted for consensual and non abusing sexual activity.

Children Who Engage In Sexually Harmful Behaviour

Barnardo’s currently provides one of three services available for young people who engage in sexually harmful behaviour. Barnardo’s raised this issue in the consultation paper and are disappointed that the opportunity has not been taken to address it in the Order.

Approximately one third of adult sex offenders start offending when they are under 18 and research has indicated that there is a much greater degree of success in addressing offending behaviour among juveniles than adults.

The current guidance available on responses to children and young people who engage in sexually harmful behaviour is weak and the response diverse depending on the geographical location.

We believe that it is crucial that the Sexual Offences Order requires the Secretary of State to issue guidance on a prosecution protocol and provides considerations for making informed prosecution decisions.

Future revision of DHSSPS Guidance Co-operating to Safeguard Children should more clearly set out detailed guidance on inter-agency co-operation, assessment and management of children who harm others.

Trafficking and Sexual Exploitation

We remain concerned at the inclusion of a defence of reasonable belief where a child is over 13 years of age and under 18. In our experience this allows those who want to sexually exploit children to continue to do so knowing they can argue reasonable belief. We think that if this defence was removed it would provide much greater protection for children and young people. Or at that the very least that it could only be used where there was less than a specified age difference for example, five or ten years.

We welcome the inclusion of the offence of paying for the sexual services of a child and the other offences outlined in this section but believe that the defence of reasonable belief should be removed from these.

We think that the penalties associated with these offences should be reviewed so that the offence of causing or inciting abuse of a child through prostitution should have the same penalties as paying for the sexual services of a child.

We think that the offence of Sexual Activity in a Public Lavatory should be included in the new body of law on sexual offences and that it should include advertising for sexual activity. In our experience one of the main ways that children are advertised for sexual exploitation in Northern Ireland is through public lavatories.

Christian Institute handout page 1.tif

Christian Institute handout page 2.tif

NIO response to Committee’s request 
for statistics about prosecutions for 
teenage sexual activity and extent 
of application of Article 21

Convictions for offences against children committed by under 17s

 200320042005
Gross indecency with a child 0 0 0
Buggery with a boy under 16 0 0 0
Buggery with a girl 0 0 0
Indecent conduct towards a child 0 0 0
UCK of a girl under 14 0 0 0
UCK of a girl under 17 1 0 0
Incest by man with a female under 14 0 0 0
Indecent assault on a female child 0 0 1
Indecent assault on a male child 0 1 0
Distributing indecent photographs of children 0 0 0

2005 is the latest year for which figures are available.

Extent of application of Article 21

The issue of the application of Article 21 - arranging or facilitating commission of a sex offence against a child to Articles 16 – 20 only and not also Articles 12 – 15 - offences against children under 13, was raised by the Assembly researcher. This issue is still being considered and we are not yet in a position to provide a substantive response. We would however, point out that Articles 16 – 20 do cover sexual activity against a child under 13.

Appendix 4

List of Witnesses who gave 
evidence to the Committee

Mr Paul Goggins MP Minister of State for Northern Ireland
Mr Gareth Johnston Northern Ireland Office
Mrs Amanda Patterson Northern Ireland Office
Mr Jim Strain Northern Ireland Office
Mr Stephen Cowan Northern Ireland Office

Mr Martin Crummey National Society for the Prevention of Cruelty to Children
Mr Avery Bowser National Society for the Prevention of Cruelty to Children
Mr Colin Reid National Society for the Prevention of Cruelty to Children

Ms Margaret Kelly Barnardo’s
Ms Jacqui Montgomery-Devlin Barnardo’s

Mr Callum Webster The Christian Institute
Mr Matthew Jess The Christian Institute

Appendix 5

Contents of the Draft Order

Appendix 5 Contents - Part 1 and 2.tif

Appendix 5 Contents - Part 3.tif

Appendix 5 Contents - Part 4 and 5.tif

Appendix 5 Contents - Part 6 and 7.tif

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