My Lords, I shall speak to Amendment 277 in my name and I fully support Amendment 292C in the names of the noble Baroness, Lady Newlove, and others.
In 2004, when this House also acted in its judicial capacity, it considered an appeal by a Mr J, who had been convicted of three counts of indecent assault and one count of gross indecency with a child. Mr J, 35 years, had seduced the 13 year-old daughter of a friend. The charges of indecent assault actually related to full sexual intercourse. There was no doubt that he did those acts, for which he was originally sentenced to three years’ imprisonment, but this House quashed the convictions for indecent assault. The reasons why are still relevant today. Men who seduced girls between the ages of 13 and 16 before 1 May 2004 are now immune from prosecution on account of this case. It is still possible to do something about this, but legislation is needed, hence my amendment.
The problem is that sexual offences committed before 1 May 2004 must be prosecuted under the Sexual Offences Act 1956. Under that Act, the applicable offence is unlawful sexual intercourse, as outlined in Section 6. In the 1956 Act, there is a time limit of one year from the alleged commission of the offence under Section 6. Proceedings must therefore be instituted within a year from then. This time limit is clear and unambiguous and can be found in paragraph 10 of Schedule 2 to the Act.
The problem had been going on for some time, since before May 2004, but prosecutors were for a long time able to evade the time limit. Instead of charging for underage sexual intercourse, which could not be done if the offence was discovered or prosecuted too late, they would charge for indecent assault in relation to the same underage sexual intercourse.
That is where the J case comes in. Mr J argued that this was impermissible and the House accepted that argument. Since that time in 2004, men who procured sexual intercourse from vulnerable and impressionable girls before 1 May 2004, perhaps introducing them to like-minded friends, have been practically immune from prosecution. The only applicable offences in the 1956 Act were time-barred as a result of the time limit relating to underage sexual intercourse.
To avoid confusion, I should say that the time limit problem does not apply where the offence has been committed since 1 May 2004. If a man had sexual intercourse with a girl aged between 13 and 16 after 1 May 2004, he can be prosecuted for the new offence of sexual activity with a child. That was created by the Sexual Offences Act 2003 and no equivalent time limit is applied to it.
Many cases, however, are historical in nature and precede 1 May 2004. The 1956 Act must then still be applied, with all its anomalies—including this time limit. In theory, if two women came forward today and woman 1 reported abuse that took place on 30 April 2004 while woman 2 reported abuse that took place the next day, on 1 May 2004, only woman 2’s case would proceed, because the modern law of the 2003 Act applies to only her case.
Some may read this speech and question why I am assuming female victims and not children of any gender. Here, the story gets worse still. This time limit
applies only to offences committed against underage girls; if the victim were a boy, it would be different, as historical cases of sexual intercourse between men and boys under 16 can still be prosecuted. The time limit applies only to girls. How can the law deny justice and discriminate in this way and this House not seek to put it right?
In fact, we can find anomaly after anomaly in this area. In my research, I read the work of Dr Jonathan Rogers, assistant professor in criminal justice at Cambridge University, who gives a full account of them. For example, Mr J was in fact still punished for the act of gross indecency with a child which related to oral sex with the same consenting child. It is incomprehensible that oral sex with the abused girl could be prosecuted at any time while the sexual intercourse had to be prosecuted within one year.
Some may say this is a past problem, but it is a present one, because we are still uncovering abuses that happened before 1 May 2004. Historical sexual abuse is, sadly, coming to light too frequently in the news. We know that girls are regularly threatened into silence for long periods. Many girls are victimised in this way and recognise themselves as victims or have the confidence to go to the police only much more than one year later. That is well known.
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Something else may come to light that encourages them to bravely break their silence. This was illustrated in May 2013 when the BBC highlighted the case of two women who were told they could not press charges against their former teacher because of the 12-month time limit. One of the women said:
“I didn’t understand how they could have gone the best part of the year and I would just be hearing about that. It was horrible. I just collapsed on the floor and just felt I had gone through this horrendous ordeal for nothing.”
There is no way of knowing if this is affecting 1,000 women or just a few. The CPS keeps tallies of cases it has prosecuted, but does not keep a record of cases discontinued at an early stage, such as when the time limit problem is noticed. There must be hundreds of thousands of cases where men seduced a girl aged between 13 and 16 before 1 May 2004 but those victims for various reasons never told the police during the next year. I do not believe that we should need much evidence of the extent of the problem to justify the removal of the time limit. Nor would we open the floodgates by allowing justice to be done now: the CPS would proceed only where the evidence is strong and it serves the public interest, as in the case of much older abusers such as Mr J.
Some may object that you cannot retrospectively make law in this way, but I believe that is wrong. It is true that you cannot retrospectively create new offences and punish people for them, but here the relevant offence always existed. Amendment 277 is just changing the rules relating to trials for those offences.
It has always been understood that rules of evidence and procedure can be amended and have immediate effect in subsequent trials, regardless of when the acts complained of actually happened. Is it not the case that courts would always try people according to contemporary law on procedure and evidence and
would not normally think to ask whether such law applied at the time of the offence? The noble and learned Baroness, Lady Hale, said in the case of J, when referring to the time limit:
“It is a procedural bar which brings a fortuitous advantage to a defendant”.
As I understand it, Article 7 of the European Convention on Human Rights applies to the definition of offences and defences, but not matters of procedure, which includes time limits.
Finally, some may argue that this amendment risks exposing those who were prosecuted for some other offence relating to the sexual intercourse to being prosecuted again, this time for the offence of underage sexual intercourse. That is not my intention with this amendment, but it is a point well made. To resolve this issue, on Report, an additional provision could be added to the Bill which states:
“Nothing in the above section shall permit the trial of a person who has already been convicted of an offence relating to the sexual intercourse in question.”
In conclusion, the CPS has been silent about this problem for many years, but it is quite right for us to use the legislation now before us to put this right. I have spoken to Dr Jonathan Rogers, whose work on the matter has been peer reviewed by other criminal lawyers, and I thank him for all his support on this issue.
I am not a lawyer—in this debate, that may become apparent—and am aware that noble Lords may quote sections of the law or results of judgments that I will not have the breadth of knowledge to reply to in great detail today. However, I will take all points made on board, read more and consult further with noble Lords who are willing to engage with me. I ask and hope that the legal minds in this Chamber and the Government will resolve this issue within the Bill, as I strongly believe this time limit is wrong. I therefore also ask the Minister to meet me and Dr Jonathan Rogers to discuss this further before Report.
Let us take the opportunity of this Bill to right a wrong. There are still women who are denied justice for what happened to them in their early teenage years and men who can be fairly tried. Let them now be tried if the CPS considers the evidence strong enough and that the case still merits prosecution. I beg to move.