Policing and Crime Bill

My Lords, I disagree with the noble Lord that the law is replete with examples of the extension of strict liability to acts of a criminal character. Strict liability is usually to be found in enactments that apply to particular trades—for example, the sale of food, drink or medicines—where it is in the public interest to enforce regulatory standards. The Law Commission, in its Working Paper No. 31, considered the mental element in crime and said: ""To make a person liable to imprisonment or criminal sanction for an offence which he does not know he is committing … is repugnant to the ordinary man’s conception of justice and brings the law into contempt"." Lord Reid—a very wise man, and very frightening to appear before—said, in the leading case of Sweet v Parsley in 1970: ""It does not in the least follow that when one is dealing with a truly criminal act it is sufficient merely to have regard to the subject matter of the enactment. One must put oneself in the position of a legislator"." We are the legislators. Lord Reid continued: ""It has long been the practice to recognise absolute offences in this class of quasi-criminal acts"—" that is to say, regulatory offences— ""and one can safely assume that, when Parliament is passing new legislation dealing with this class of offences, its silence as to mens rea means that the old practice is to apply. But when one comes to acts of a truly criminal character, it appears to me that there are at least two other factors which any reasonable legislator would have in mind. In the first place a stigma still attaches to any person convicted of a truly criminal offence and the more serious or more disgraceful the offence the greater the stigma. So he"—" the legislator— ""would have to consider whether, in a case of this gravity, the public interest really requires that an innocent person should be prevented from proving his innocence in order that fewer guilty men may escape. And equally important"," said Lord Reid, ""is the fact that fortunately the Press in this country are vigilant to expose injustice and every manifestly unjust conviction made known to the public tends to injure the body politic by undermining public confidence in the justice of the law and of its administration"." So the extension of strict liability to acts of a truly criminal character is extremely limited. The noble Lord, Lord McColl of Dulwich, referred to Section 5 of the Sexual Offences Act 2003 concerning the rape of a child under the age of 13. The offence requires merely proof of an intentional penetration with the penis but does not require knowledge that the child is under 13 and does not permit any defence of reasonable mistake as to age. It is not a question of changing the burden of proof; there simply is no defence. That was so far beyond the ordinary principle that it was subject to an appeal to the House of Lords in the case of G in 2008. It was contended that Section 5 of the 2003 Act was incompatible with a presumption of innocence guaranteed by Article 6.2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. That was considered but rejected by their Lordships in this House. They held that proof of the intentional penile penetration of a child under 13 years of age was all that was required for a conviction under Section 5 of the 2003 Act. So, to the extent that there was no defence but that the accused believed the other person to be aged 13 or over, it was an offence of strict liability. However, their Lordships said that the policy of the legislation was to protect children and there was nothing unjust or irrational about a law which provided that a male who so penetrated a young person who was in fact under 13 years of age had committed an offence. The focus was on that policy. The noble and learned Lord, Lord Hope of Craighead, who is very familiar to your Lordships, said: ""There is no doubt that when section 5 of the 2003 Act was enacted the protection of children was one of the primary concerns of the legislature. Furthermore, as Rose LJ said in R v Corran …its purpose is to protect children under 13 from themselves as well as from others who are minded to prey upon them"." The important point is that, by contrast, under Section 9 of that Act sexual activity with a child between the ages of 13 and 18 requires the prosecution to prove not merely intentional penile penetration of a child but also that the defendant does not reasonably believe that the child is 16 or over. In other words, when a child is 13, the Sexual Offences Act 2003 does not impose strict liability for that criminal offence, and the person who is a defendant for having sex with a girl over 13 and under 18 has a defence to say that he thought she was over 16. Why, then, should the concept of strict liability be introduced into the offences of paying for sexual services of a prostitute subjected to exploitative conduct? I am grateful to the noble Lord, Lord Pannick, who pointed out that it is at one remove at any event, and that a very considerable amount of harm and damage is being done by the exploiter. The offence put forward by the Government is not considered serious enough even to be an indictable offence. It can be prosecuted only in the magistrates’ court. The maximum penalty in the offence before your Lordships is a fine not exceeding level 3—that is, up to £1,000. Therefore, there is a defence to having sex with a girl between the ages of 13 and 16, which is that you thought she was over 16. However, the Government have put it as a magistrates’ court offence with only a fine but they wish to impose strict liability. It is a huge leap in principle. Is the use of prostitutes so great a social evil as to be compared with having sex with a child over 13 and more serious than non-consensual sex with a child between the ages of 13 and 18? The amendment tabled by my noble friend does not attempt to minimise the need to protect prostitutes who are subject to exploitative conditions. To be proportionate, the defendant must surely be able to say, when he is brought before the magistrates, that he did not know or have reason to know that a third party was exploiting that prostitute. Why do the Government say that, unlike the whole calendar of criminal law, including murder, rape, terrorist crime, armed robbery, and fraud, all of which require mens rea—an intention and knowledge in the head of the person—this new offence of strict liability, this magistrates’ court offence, is punishable by a maximum fine of £1,000? Why is this suddenly to become strict liability so that a defendant has no defence? Is it to send a message? We could abolish the need to prove intent or knowledge to send a message about murder or rape. Abolishing mens rea in all serious criminal offences would send a message. I suggest that the only message to be sent is that the Government have lost a sense of proportion in considering this offence.