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Issues - False Allegations

Why the Act is indecent -
The new Sexual Offences Act is oppressive, heavy-handed and isn't even clear about what kind of behaviour it wants to prohibit, argues
Professor John Spencer QC
03 May 2004

Until this week, when the new Sexual Offences Act 2003 comes into force, offences against children have been dealt with by a rather muddled body of law spread over several different statutes. The new Act will bring these within one pair of covers and to that extent at least the reform is welcome.

Like the rest of the Act, however, it seems to me that there is much about the new set of child and family offences that is deeply unsatisfactory. The new offences are too many, and there is needless overlap between them; they are badly drafted in a style that combines an excess of detail on minor matters with a failure to deal with certain major ones.

Most seriously, the new law is exceptionally heavy-handed. It ratchets culpability requirements down, building grave and stigmatic offences on negligence or even strict liability. And more fundamentally, it renders theoretically punishable with severe penalties (2, 5, 10 and 14 years, and even life) a range of behaviour for which it is inconceivable that anyone will in practice be prosecuted - and for which it would be scandalous if they were.

That a major part of English criminal law has just been reconstructed on these singularly unappealing lines raises serious doubts about whether this country will ever achieve the rational criminal code that the Government supposedly desires as long as criminal law reform remains a matter for the Home Office, in the repressive womb of which the new law was conceived.

As an example, pornography, is defined as the making of an indecent image - and no mention is made in this part of the definition either of payment, or the intended dissemination of the pornographic image to others.

Thus, on the face of it, a young man whose 17-year-old girlfriend lets him take a picture of her in the nude for him to keep in his wallet or frame for his bedside table is potentially guilty of an offence and theoretically liable to 14 years' imprisonment.

The Act sweeps away the existing law on sexual acts with minors (including incest), child prostitution, and child abduction (insofar as this was contained in the Sexual Offences Act 1956). It leaves the existing law on child pornography in place, which continues to be covered by the Protection of Children Act 1978 - although it extends its reach by redefining the "children'' whose indecent images it is an offence to possess as persons under 18, instead of 16, as heretofore.

The offences it abolishes are all replaced, except for the abduction offences in the Sexual Offences Act 1956: these were already duplicated by the Child Abduction Act 1984, which remains in force.

The new offences in the Sexual Offences Act 2003 are more numerous than those they replace - and extend, in many cases, the range of behaviour that is criminal. In broad terms, nothing that was previously criminal has ceased to be; much is made criminal that previously was not, and most of it is made more severely punishable. The age of consent, as under the existing law, remains 16. But the effect of this is watered down by a range of provisions that punish consensual sexual acts where the willing participant is older.

Thus, the Act contains a group of new "familial child sex offences'' that criminalise all sexual acts where one of the participants was under 18 and the other was any of a wide range of relatives or carers; and, further expanding on the existing law of incest, the new Act also contains an offence called "sex with an adult relative'' that prohibits a range of sexual acts between consenting adults far wider than those that fell within the old offence.

If readers feel that the general criticisms of the new law in the opening paragraph of this article are justified, they might like to reflect on how it was that such a flawed piece of legislation came to be enacted.

At a purely technical level, I believe that many of the faults in this Act are due to the fact that the Home Office followed its usual practice of preparing a Bill "in house''. The draft of this became public only when the Minister introduced it in Parliament, under instructions to fight off amendments.

In the past, it has been the usual practice for the Lord Chancellor's Department when proposing law reform to produce a Draft Bill, on which comment is invited from the public, the judges and the legal profession. If the Home Office were to adopt this sensible practice, the technical quality of the legislation it promotes would be much improved.

The oppressive content of the new law largely stems, I believe, from the fact that those responsible for framing it have no intelligible philosophy as to what sort of behaviour the criminal law should and should not prohibit. They see nothing wrong in principle with enacting laws that make theoretically illegal whole swathes of human activity that is blameless or harmless, leaving it to the discretion of the police and other authorities to decide whom to prosecute, and for what.

But a crucial factor clearly is that, despite conducting "extensive consultations'' and a formal review that consumed £17,500 of public money on research and £31,025 on conferences, the Home Office devised the new law without troubling to obtain or consider any solid information about what is normal in the sex lives of children and young persons.

The review document also contains the following disarming statement: "We also tried to test the opinion of some young people and, at a fairly late stage in the review, had discussions with some Year 10 and Year 11 pupils (aged between 14 and 16) at one school (sadly lack of time meant we could not undertake a wider consultation).''

John Spencer QC is professor of law at Cambridge University. This is an edited version of an article published in May's edition of the 'Criminal Law Review'

SOURCE: http://news.independent.co.uk/uk/legal/story.jsp?story=517661

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