I do not disagree that it is only now being prosecuted. The point is that it is being prosecuted, and that is what I was trying to get over. The defendant in that case has pleaded guilty to two counts of inciting prostitution for gain, but as there is due to be a trial on an unrelated matter, it is probably not wise for me to comment further on this.
The noble Baroness talked about landlords. It is imperative that we ensure that landlords are not able to use their status and exploit any legal grey areas that could abuse their tenants or any other vulnerable people in society. The noble Lord, Lord Marks, also cited a number of examples. Local authorities and police forces are aware of these issues, and they will ensure that those convicted of these offences are banned from engaging in managing or letting residential accommodation.
Amendments 292M and 292R would require the Secretary of State to review the operation of two offences under the Sexual Offences Act 2003: namely, those of “exposure” and “administering a substance with intent”. As the noble and learned Lord, Lord Falconer, has explained, both amendments are in response to recent events. I appreciate the issues that the noble and learned Lord has raised, but I do not think that it is a requirement to put into primary legislation. I am sure he will remember from his tenure as Secretary of State for Justice that the Ministry of Justice, together with the Home Office, keeps the operation of the criminal law under review, and if there are problems they will act where necessary.
I am not sure whether it was the noble Baroness, Lady Fox, or the noble Lord, Lord Marks, who pointed out that we need to make legislation following full investigation of the facts and the consequences of making new laws, but we will continue to review the law in these areas and to ensure that it is up to date and fully equipped to protect victims of exposure and, indeed, spiking.
In relation to exposure and the police response to allegations in respect of Sarah Everard’s killer, the Committee will be aware that the first part of the inquiry announced by the Home Secretary will examine the killer’s previous behaviour and will establish a comprehensive account of his conduct leading up to his conviction, as well as any opportunities missed. We will, of course, want to learn any lessons arising from this and other aspects of the inquiry.
The recent reports of spiking—adding substances to drinks and injecting victims with needles—are concerning, and I have every sympathy with victims and anyone who might feel unable to go out and enjoy a night out for fear that they might be targeted. Any spiking constitutes criminal conduct, and the necessary offences are on the statute book. As with any crime, it falls to the police to investigate and ensure that those responsible are dealt with in accordance with the law.
The police are, of course, operationally independent, and it would not be right for me to comment on specific instances and allegations at this time when there are ongoing investigations, but they are taking it very seriously and working at pace to gather intelligence and identify perpetrators. My right honourable friend the Home Secretary has already asked the National Police Chiefs’ Council to urgently review the extent and scale of the issue and is receiving regular updates from the police, as has been widely reported. This is being done using resources at local, regional and national level, including the National Crime Agency.
Finally, turning to Amendment 292T, we return to the issue of the so-called rough sex defence. Noble Lords will remember the extensive debates on this topic during the passage of the now Domestic Abuse Act 2021. In that Act, the Government responded to concerns from the public and from across the House that defendants, invariably men, argued that the death of a person, invariably a woman, was caused by “rough sex gone wrong”.
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In the Domestic Abuse Act, we did two things. First, we created a new offence of non-fatal strangulation, which makes it easier for the police and the CPS to secure convictions for strangulation. Secondly, we reinforced the principle, set out in the case of R v Brown, that a person cannot consent to activity that results in serious harm or their death. We have therefore made clear in statute, in Section 71 of the Domestic Abuse Act 2021, that it is not a defence to claim that a person consented to activity that led to their death or serious harm.
I understand that concerns still exist about this issue, not least because of the recent and tragic death of Sophie Moss. We offer our sincere condolences to her family at what must be a dreadful time. I do not want to comment specifically on the charging decisions or sentence imposed in that case. I think it is clear that my right honourable friend the Attorney-General sought a review of that sentence as unduly lenient. We were disappointed by the decision of the Court of Appeal, but we of course respect the findings that it made.
I fully understand the context and the thinking behind this amendment. We do not disagree with the concern, but we have to realise what this amendment would actually do, and the noble Lord, Lord Marks, pointed this out: it would create a new offence that carries a life sentence where a person kills another person in the course of sexual gratification and intends the action that led to the victim’s death.
It is worth comparing that to the tests for murder and manslaughter. For murder, we need an intent to kill or to cause grievous bodily harm. For manslaughter, we need an intent to carry out an unlawful act that leads to the death. This new offence would require an intent to do only the act that leads to the death. As the noble Lord, Lord Marks, said, that means that an intention to do any act, lawful or unlawful, would be sufficient to be convicted of this offence and face a life sentence. In other words, this offence would cover a genuine accident caused by a lawful act.
I do not think it is necessary for me to go into great detail about the other issues with this approach, but we are concerned that such a significant change in the law needs to be extremely carefully considered. We need to get the balance right between those who act with malice or are reckless as to the welfare of their sexual partners, and those who engage in genuine, consensual and lawful activities without any malicious intent. I know that the noble and learned Lord will appreciate that this amendment requires further and in-depth consideration.
We also need to look at the wider issues surrounding these cases—for example, the emerging evidence of the limited pressure required to cause serious injury and therefore the test of whether someone intended at least GBH if they engage in strangulation. We do and will keep the law on this important issue under review. We consider very carefully the implications of court decisions and whether further legislative and non-legislative measures need to be considered.
In conclusion, we agree with the sentiments behind these amendments. We need to ensure that the criminal justice system, and indeed wider society, responds
effectively to these offences, but it is important that we create new offences only where there is a clear need to do so. As I said, we continue to explore whether further legislation is needed to tackle street harassment, and we continue to keep the law as it applies to so-called “sex for rent”, exposure, spiking and the so-called “rough sex defence” under review. On this basis, I hope that the noble and learned Lord, Lord Falconer, would be happy to withdraw his amendment.