Sports Coaches (Positions of Trust)

Alex Chalk Excerpts

Wednesday 4th March 2020 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

It is a pleasure to serve under your chairmanship, Mr Paisley.

I thank my hon. Friend the Member for Chatham and Aylesford (Tracey Crouch) for securing this important debate and for her distinguished service as a Minister. Her speech was absolutely in the spirit of that distinguished service.

As my hon. Friend indicated, I have been in post for only a few short weeks, but it is already crystal clear to me that this is an extremely important issue which requires a clear, considered and decisive response. The Government have been reviewing the law in this area. I have said that we should urgently consider all options, including legislative change, and must be in a position to announce next steps by the end of May.

Turning to some basic principles, protecting children and young people from the scourge of sexual abuse and exploitation is a top priority for this Government. Ensuring that the law is effective in providing that protection is not just our priority, but our duty. As most stakeholders acknowledge, however, this area is not without complexity—that is not a reason not to tackle it, but we need to advert to it. I will set out some of the issues and explain why charting the way ahead requires careful thought.

It is worth taking a moment to summarise the state of the existing law. In a short debate, that can only be a brief overview. As we know, sexual activity with a child under 16 is of course always a serious criminal offence, regardless of consent, and non-consensual activity is a crime regardless of the age of the victim or the relationship between the victim and perpetrator.

Alongside those two offences, to turn to positions of trust, the Sexual Offences Act 2003 created a number of offences that specifically target any sexual activity between a 16 or 17-year-old young person and people who hold a defined “position of trust” in respect of that young person, even if such activity is consensual, as my hon. Friend indicated.

Those offences were designed to build on the general child sex offences in the 2003 Act, and are defined to target situations in which the young person has considerable dependency on the adult involved, often combined with an element of vulnerability of the young person. The offences are directed at those who are employed to look after young people under the age of 18, such as those providing care for a young person in a residential care home, a hospital or an educational institution. That particularly adverts to the fact that the state has a role in the child’s development or care.

As my hon. Friend made crystal clear, those offences do not cover all positions in which a person might have contact with, or a supervisory role of, a young person aged under 18. That was a deliberate decision by the Government of the day. In preparation for this debate, I looked up some of the relevant debates. The issue of scope was raised in the other place by Baroness Blatch, a Conservative, on 13 February 2003. She noted that she was “disappointed” that provision had not been made in the Bill to encompass those being supervised as scouts or in youth centres. Interestingly, when responding to her that same day, Lord Falconer said:

“I understand the noble Baroness’s argument, but a line has to be drawn somewhere and we think that is the right place”.—[Official Report, House of Lords, 13 February 2003; Vol. 644, c. 878.]

My sense is that that judgment may well be wrong but, in fairness to the noble lord, it is not a straightforward one to make. What is at stake here is a need to balance the legal right, as prescribed by Parliament, for young persons aged 16 and over to consent to sexual activity, with the proper desire to protect vulnerable young people from manipulation.

Another complicating feature is the evolving case law in the area. In certain situations, the criminal division of the Court of Appeal has already been clear that supposed consent may be vitiated or even negated, thereby creating a criminal offence in any event. To put that in plain English and to give an example, in the case of McNally, deception by a defendant as to her sex—she falsely claimed she was a man—was held to vitiate the victim’s consent to intercourse.

That is important because, as the Crown Prosecution Service now indicates in its charging decisions, in certain circumstances that ruling could apply where perpetrators were in a position of power in which they could abuse their trust over a victim. If we look at the CPS charging decision—in other words, when making a decision about whether there truly was consent in a relationship—one of the matters that has to be considered is:

“Where the suspect was in a position of power where they could abuse their trust, especially because of their position or status—e.g. a family member, teacher, religious leader, employer, gang member, carer, doctor”.

The point is that it is no longer necessarily automatically good enough for the defendant to say, “Look, she consented”, if in fact that will was suborned in some way. That might well be a very proper reason why the CPS could conclude that there had been no consent.

[Richard Graham]

On that point, does the list of categories for the CPS to consider include or exclude—or is it neutral on—the issue of sports coaches, music teachers and driving instructors, for example?

[Alex Chalk]

My hon. Friend makes a characteristically pertinent point. That is a non-exhaustive list, which is an important consideration to bear in mind. The proper points that he made are not lost completely on some charging prosecutors, and that is an important part of the context.

[Tracey Crouch]

If that is the case, let us scrap section 21. Then there would be no prescribed list, and a definition of “position of trust”, which the CPS is clearly working on, could include sports coaches, driving instructors and music teachers.

[Alex Chalk]

An interesting balance has to be struck. On the one hand, this place properly might want to prescribe where that happens, allowing no discretion for the CPS, but on the other hand, there may be a relevant public policy interest in saying to prosecutors that in other cases there is wider discretion. I have already made the point that in 2003 Parliament decided to draw a distinction that appears to focus on circumstances in which the state has a particular role in caring for the individual. That is something to be considered.

In 2019 the Government, recognising the concerns powerfully and properly expressed by my hon. Friend the Member for Chatham and Aylesford, began a review of the law on such abuses of positions of trust. Notwithstanding the narrow focus of this debate—on sports coaches—concerns about scope range far wider, as indicated by my neighbour, my hon. Friend the Member for Gloucester (Richard Graham). That is why the review also took account of the IICSA report—independent inquiry into child sexual abuse—on the Anglican Church, which focused on the diocese of Chichester and the response to allegations against Peter Ball, a former bishop who in 2015 pleaded guilty to a series of sex offences. Recommendation 3 of that report stated:

“The government should amend Section 21 of the Sexual Offences Act 2003 so as to include clergy within the definition of a position of trust. This would criminalise under s16–s20 sexual activity between clergy and a person aged 16–18, over whom they exercise pastoral authority, involving the abuse of a position of trust.”

Other settings might conceivably be relevant, such as youth clubs and scouts—as Baroness Blatch pointed out in 2003—and drama groups, choirs, Army cadets and learner drivers, whom my hon. Friend the Member for Gloucester has done such a good job of drawing to the attention of the House.

Ministry of Justice officials have engaged with a wide range of stakeholders across youth and criminal justice sectors, including, in the area of faith and religion, the Anglican dioceses of Chichester and Lincoln, the Board of Deputies of British Jews, Gardens of Peace, the Hindu Council UK, Marriage Care, the Sikh Council UK and St Philip’s Centre. In the sporting sector, the review team has heard from British Canoeing, British Fencing, British Gymnastics, the Football Association, the Lawn Tennis Association, the Royal Yachting Association, the Rugby Football League, the Rugby Football Union, Sport England and Swim England—I could go on.

A huge number of people have been consulted on this important issue. Officials have gone beyond those two areas to speak to youth organisations, including the National Citizen Service, the National Youth Agency, the Scouts and Volunteer Police Cadets. Those discussions were candid and wide ranging, and views were shared throughout the process. On behalf of the MOJ, I am extremely grateful to those who have given of their time for that important process.

A number of themes and suggestions emerged during the review, and it is right to note that many were non-legislative in nature. They included the better provision of education, the consideration of the effectiveness of the DBS system in practice, raising awareness and understanding of what grooming and genuine consent really look like, and the measures needed to protect young people from this type of abusive behaviour. Many measures can be taken alongside any potential changes to criminal law, which I am not ruling out at all—we will look at them very carefully. It is important to note that they deserve careful consideration.

[Christina Rees (Neath) (Lab/Co-op)]

As a former national coach for Squash Wales—I notice that squash was not on the Minister’s list—part of my role was to hold coaching courses and increase the number of coaches. There are clear guidelines in squash that coaches cannot form any sort of relationship with a person under their care. I do not think that is good enough. If I could say to those coaches that it is against the law to form a relationship, it is clear cut and definitive. That should be the ruling.

[Alex Chalk]

That is precisely the matter that we have to grapple with. I am grateful to the hon. Lady for expressing her point.

Returning, for completeness, to the exhaustive process of review, most stakeholders that the MOJ heard from felt that a change in the law was required. Most also agreed that any change or reform of the existing laws raised difficult and complicated issues. Some expressed concern that drafting the law too narrowly, or perhaps simply listing roles or jobs considered as a position of trust, risked creating loopholes or definitions that could be easily exploited or circumvented by abusers. Equally, others raised the point that any broad or wide-sweeping new definition could raise the age of consent by stealth.

If we do not get this right, it is not difficult to think of hard cases that would risk undermining confidence in the criminal justice system. One could imagine, as was imagined specifically by Lord Falconer in the 2003 debate, a consensual relationship between a 19-year-old coach and a 17-year-old footballer where no abuse of power or trust had taken place, and with no suggestion of any sort of bargain whereby sexual activity was traded for, say, team selection. In such circumstances, there might be proper public concern about criminalising that coach. Let us be clear: he or she would be at risk of conviction, punishment and disgrace, alongside a conviction that would remain on the police national computer for life. He or she may well be subject to stringent notification requirements. His or her life would be, to a large extent, ruined.

With that in mind, the Government are considering all options, including legislative change, and they are doing so with pace and care. As noted already, I have asked that that work be prioritised, and I will be in a position to announce next steps before the end of May.

This debate has offered a valuable contribution to the evaluation of these important issues. They are important because safeguarding young people in all situations, not just those limited to sport, is essential.

[Tracey Crouch]

Before the Minister concludes, will he give two guarantees? First, will he meet the NSPCC, which is asking not for guidance but for the legislative loophole to be closed? It is the country’s largest child protection charity and it ought to be listened to with respect for the campaign that it has run for a long time. Secondly, will he listen to some audio of former athletes who were abused or were in coercive relationships with their coaches? Once he has listened to their stories and the likes of Sport England and the Child Protection in Sport Unit, perhaps he will come to a different conclusion and take a different path.

[Alex Chalk]

Yes, of course I will be delighted to meet the NSPCC. Secondly, if my hon. Friend wants to send me footage to listen to, I will gladly listen to it. My door remains entirely open if she would like to take up these matters further with me.

I invite my hon. Friend not to presuppose what road the Ministry or I am on. In the short period that I have been seized of this matter, I have recognised its urgency and pressing nature. I have, I hope, properly adverted to the fact that there are complexities that needs to be ironed out. The singular injustice to any victims would be that, in a legitimate attempt to improve safeguarding, we undermine public confidence in it. That is why we have got to get this right—because, ultimately, safeguarding young people will remain a relentless focus of this Government.

Question put and agreed to.