Policing and Crime Bill

I, too, support the amendments. I also am concerned about the strict liability element of the proposed offence. Your Lordships will, I am sure, accept that strict liability crimes are sometimes justified in the context of sexual offences. An example, which I hope is illuminating for our purposes, is Section 5 of the Sexual Offences Act 2003, which makes it an offence for a person to have sex with a child who is under the age of 13 irrespective of whether the defendant knew or ought to have known of the age of the victim. The differences between Section 5 and Clause 13 illustrate the problems with the proposed offence. Your Lordships may know that in June 2008, in the case of R v G, the Appellate Committee of your Lordships’ House considered and dismissed the argument by a man convicted of an offence under Section 5—having sex with a child under the age of 13—that the strict liability element in the Section 5 offence was a breach of his human rights. But the Appellate Committee emphasised that there were strong policy reasons for making that offence one of strict liability. The object there was both to protect children from predatory adults and to protect the child from premature sexual activity of all kinds. It is much more difficult to identify any policy which can justify strict liability in the present context. As noble Lords have already pointed out, it is not the policy of the Bill that all prostitution should be made a criminal offence by the customer; nor is the Government likely to accept the arguments powerfully advanced by the noble Lord, Lord Waddington, that paying a prostitute for sexual services should be made a criminal offence. In Clause 13, one faces the difficulty that the relevant ingredients of the offence are not clear by contrast with the Section 5 strict liability offence. In the context of Section 5 on having sex with a child under the age of 13, the child either is or is not under the age of 13. The age is discoverable by a number of means. By contrast, Clause 13 would mean that whether the criminal offence was committed by the customer would depend on specific factual matters—that is, whether a third person has used force, deception or threats or engaged in exploitative conduct—as outlined in the Government’s proposed amendment. But such matters are not objective; they are not incontrovertible facts but highly contentious matters. Indeed, they will inevitably be the subject of dispute between the prostitute and the third party. In the light of this, my question to the Minister is: can he give the Committee any other example of a strict-liability offence where that liability arises in a context that is not one where there is an absolute prohibition on defined conduct by reference to an objective criterion such as a person’s age, such as in Section 5 of the Sexual Offences Act, but rather an example of a case where strict liability applies only where criminal liability occurs that is dependent on so vague and contentious a criterion that is referable to the alleged conduct of a third party?