Police, Crime, Sentencing and Courts Bill (Eighth sitting)

Sarah Champion Excerpts

Committee stage
Thursday 27th May 2021 Public Bill Committees

[The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)]

As the Committee will remember, I gave a very quick example of circumstances in which it would be appropriate for the authorised person to use information extracted from a digital device: when a person is missing, it would be appropriate to do that rather than wait for a review of many hours of closed circuit television footage. I hope that has dealt with that part of new clause 49.

New clause 49 also incorporates a definition of “agreement”. In order for authorised persons to exercise the power to extract information from digital devices, device users other than children or adults without capacity must voluntarily hand over their device and agree to the extraction of information. Authorised persons must explicitly ask device users for their agreement. The code of practice will provide guidance on: how agreement is to be obtained by the authorised person; ensuring it is freely given; and how the device user is made of aware of their right to refuse. The code will set out the best practice that authorised persons should follow when obtaining agreement, such as providing a copy of the digital processing notice for the device user to read and sign.

The final change made by new clause 49 is that it would define an adult as a person aged 18 or over, rather than 16 or over, as set out in chapter 3 of part 2. I understand this was not raised by the Victims’ Commissioner, but we have listened, and have thought very carefully about the imposition of that age in the Bill. In setting the age at 16, we were keen to ensure that those aged 16 to 17 were given appropriate control over their personal devices. That is not dissimilar from the position in other legislation, such as the Mental Capacity Act 2005, which recognises the rights of young people aged 16 and 17. However, we note the concerns raised in the debate, and we will reflect on them.

[Sarah Champion (Rotherham) (Lab)]

May I say how grateful I am that the Minister is clearly in listening mode on this issue? The difference with the Mental Capacity Act 2005 is that it does not define 16 and 17-year-olds as adults. It is that particular word, not the inclusion of that age bracket, that we are concerned about.

[Victoria Atkins]

I thank the hon. Lady. As I say, we will reflect on the issue.

New clause 50 would provide that, where the user of a device was a child or adult without capacity, their views were sought and taken into account when someone else was making a decision on their behalf regarding the extraction of information from their device. We agree on the point about children. Indeed, clause 37(4) makes an equivalent provision, so we are not sure there is much between us on this point. We rely on clause 37(4) to ensure that the views of the child are taken into account.

We do not, however, agree that it is appropriate to include equivalent provision for adults without capacity. With such people, it is the capacity of the individual user that is relevant, and that is determined on the basis of a case-specific assessment. It is only if, as a result of that assessment, the person is deemed not capable of making the decisions that someone else is asked to make it. Authorised persons using that power will still have to comply with their existing responsibilities under the Mental Capacity Act 2005 and the associated code of practice or equivalent provisions in Scotland and Northern Ireland. We will, however, include guidance and direct authorised persons to the relevant statutory responsibilities in the code of practice.

New clause 52 seeks to expand the list of statutory consultees in respect of the code of practice to include the Victims’ Commissioner, the Domestic Abuse Commissioner and representatives of victims and witnesses, but clause 40 already places a duty on the Secretary of State to consult

“(a) the Information Commissioner,

(b) the Scottish Ministers,

(c) the Department of Justice in Northern Ireland, and

(d) such other persons as the Secretary of State considers appropriate.”

We believe this last line affords sufficient flexibility to capture those other persons listed in new clause 52. I can assure the Committee that we will work closely with the Victims’ and Domestic Abuse Commissioners, and other relevant groups, as we develop the code.

The new clause also lists matters to be addressed in the code of practice. We do not dispute the relevance of many of the matters listed in new clause 52(5), but putting such a list in the Bill is unnecessary. The code needs to be comprehensive and fit for purpose, and it will be prepared in consultation with interested parties and subject to parliamentary scrutiny.

Amendment 94 seeks to provide for independent legal advice for device users. Ensuring that victims are properly supported is a priority for this Government. The code of practice will make it clear that investigators should inform people about the use of the power, and ensure that they are fully aware of their rights. This information will include: why they are asking for agreement, what will happen to the individual’s device, what information will be extracted from the device, how long it may be retained for, and what will happen to any irrelevant material found on the device.

We are aware of the impact that requests for personal information can have on victims of sexual violence, and we believe that individuals should be supported in the process. We are fully committed to giving support to victims of crime, including access to independent sexual violence advisers, who we believe have a role in helping to explain the power to victims; as I have said, we are investing in 700 more of these posts this year.

We are exploring the findings of the sexual violence complainants’ advocate scheme, piloted in Northumbria, as part of the rape review, which will be published shortly. We do not think that chapter 3 of part 2 of this Bill is the right place to address this broader issue about the provision of legal advice to victims and witnesses, given the wider impact across the criminal justice system.

Amendment 115 to schedule 3 seeks to exclude immigration officers from the list of persons authorised to carry out a digital extraction. Immigration officers play a vital role in protecting vulnerable people, particularly those who may be victims of trafficking, and it is important that they are able to obtain information that may be vital in those and other investigations. The power in schedule 3 ensures that all authorities extract information in a consistent way, and put the needs and privacy of the user at the forefront of any request. Any person being asked to provide a device will be made aware of their rights, including their right to refuse.

The hon. Member for Rotherham asked about a parliamentary question that the Under-Secretary of State for the Home Department, the hon. Member for Croydon South, answered. I am told that mobile phones are seized under statutory powers where there is a reasonable belief that evidence of a criminal offence will be found. The subsequent examination of the device will be conducted in forensic conditions, and in such a way as to target only the relevant material. The handset will be retained for as long as is required to support any criminal proceedings before being returned to the owner.

Finally, there is also a Government amendment in this group: amendment 63, which ensures that the definition of the common council of the City of London is used consistently throughout the Bill. The City of London Corporation has both public and private functions, and it is therefore appropriate that public legislation applies to the corporation only in respect of its public functions. Government amendment 63 provides that the reference to the common council relates to

“its capacity as a local authority”,

which brings clause 37 into line with other provisions in the Bill referencing the common council.

To sum up, this is the first time that a clear and consistent approach to the extraction of information from digital devices with the device user’s agreement has been written into primary legislation. The provisions remove legal ambiguity around the practice and, for the first time, enshrine the protections and safeguards that authorised persons must adhere to when exercising that power. It is a significant step forward in driving a consistent approach across the Union for the law enforcement authorities that exercise these powers, and for victims and witnesses in the criminal justice system. Of course, there is more to do outside the Bill in a range of areas, but we are committed to working with victims and survivors and with charities and commissioners to ensure that when implemented, the provisions command the trust and confidence of victims and witnesses. Many of the issues raised in the new clauses can and will be addressed through the code of practice, so I hope that the hon. Member for Croydon Central will feel able to withdraw her amendments and support Government amendment 63 and clauses 36 to 42 standing part of the Bill.

--- Later in debate ---

[Sarah Jones]

The full package of these reforms will be named “Kay’s law” in memory of Kay Richardson, who was murdered by her ex-partner following his release under investigation despite evidence of previous domestic abuse. No conditions were imposed and the police gave Martin the keys back to the home he had shared with Ms Richardson. Martin let himself into the house and waited for Ms Richardson, who was 49, before attacking her with a hammer and strangling her. Kay’s mother Audrey Richardson said:

“They might as well have gone and opened the door for him”.

I think we will all want to keep in mind Kay and her family, and all victims of perpetrators who have caused harmed while on RUI, as in Kay’s case, or while continually in breach of bail conditions.

We are all largely pleased with the provisions on pre-charge bail, in that they reverse what amounted to mistakes made in the 2017 reforms, but it is important, if we want to achieve justice that is fair and efficient, that it comes alongside the Government investing in every part of our criminal justice system and tackling some of the many challenges that it faces.

To set the context, the reforms pursued by the Government in 2015 to 2017 introduced the presumption against the use of pre-charge bail. These reforms also introduced strict time limits on the use of pre-charge bail. They were designed to reduce both the numbers of individuals subject to, and the average duration of, pre-charge bail. That was supposed to address concerns that unconvicted individuals were being subjected to pre-charge bail conditions for long periods of time without due process.

The House of Commons Library says:

“There is no official data about who is released from police custody and how they are released. However, data obtained from various freedom of information requests suggest that the number of suspects released on pre-charge bail fell substantially following the 2017 reforms.”

The use of RUI

“increased rapidly as a result.”

A BBC investigation found that in one three-month period, 12 forces released more than 3,000 suspects of violent crime, murder, rape and sexual offences. Officers use RUI when they want more time to gather evidence and when the preconditions for pre-charge bail have not been met. There is no requirement for RUI suspects to report to the police, and the police have no power to place conditions on their movements or activities—although some RUI suspects will voluntarily attend further questioning at the request of the police. There are no time limits within which officers must conclude their investigations against RUI suspects and the police are under no obligation to keep them informed about the progress of their investigation.

Many stakeholders from across the criminal justice system have been critical of these 2017 reforms. The use of RUI, particularly in cases involving violent and sexual offences, puts vulnerable victims at risk because pre-charge bail conditions are not imposed on suspects. There are also concerns that the rights of RUI suspects are being undermined. Investigations against RUI suspects, on average, take longer and the police are not required to inform suspects about their progress while investigations are ongoing.

Zoë Billingham of Her Majesty’s inspectorate of constabulary said in December 2020, on the police and Crown Prosecution Services’ response to the changes, that the full consequences

“had not been thought through”.

The report said that of 140 cases examined, in 62 cases a suspect was released under investigation when bail with restrictions should have been used. The inspector said:

“These cases included domestic abuse, sexual offences and offences against children—serious crimes. This is extremely worrying, especially for the victims in these cases, who had no bail conditions in place to keep them safe.”

The report found one case where a suspected paedophile was arrested and, after three months, the bail restrictions lapsed. This was because delays in getting digital evidence from the suspect’s devices meant police feared they would fall short of meeting the threshold to get bail extended. The report also raised particular concerns about domestic abuse cases. Billingham said:

“It has a profound effect on victims’ confidence that they are being taken seriously and staying with cases that can drag on for months and years.”

We welcome the changes, but have suggested some amendments; I will talk about amendment 95 first. Part 3 of schedule 4 would impose a duty on officers to seek the victim’s views on whether pre-charge bail or street bail should be applied, and their views on what conditions should be attached, when it is reasonably practical to do so. Amendment 95 simply strengthens that wording, so that the views of victims must be sought by the investigating officer when setting pre-charge bail conditions, not

“if it is reasonably practical to do so”,

but unless there is an exceptional reason not to do so; it tilts the balance in favour of seeking the views of a victim. It is vital that there be greater consideration of the needs of the victim in setting bail conditions, to protect them and ensure that they are able to continue through the criminal justice process safely and with full confidence.

Amendments 96 and 97 would ensure that the personal situation and needs of the victim, as well as all the circumstances, are taken into account to ensure that any variations necessary to the conditions can be put in place to protect the victim. The needs and situation of the victims must be taken into account when setting pre-charge bail.

It has, sadly, often been the case that victims—largely female victims of rape, domestic abuse or sexual exploitation—are hesitant to provide complete evidence of their personal situation or needs due to fear that the perpetrator will find out and put them, or their family, at risk. It is not right that victims do not feel that the police can protect them enough. Pre-charge bail can be broken and, as this is not a specific criminal offence, the custody clock can currently be run down by continuous breaches of pre-charge bail conditions.

I will talk about the measures in the specific context of domestic abuse, which represents one third of violent crime recorded by the police, and approximately one fifth of all adult homicides—half of all adult homicides when the victim is female. It affected 2.3 million adults in the last year. The criminal justice system still has a long way to go in bringing perpetrators to justice and in providing a consistently good response for domestic abuse survivors.

Over the past couple of years, there has been a notable decline in the number of offences prosecuted by the CPS relating to domestic abuse, despite there being no reduction in prevalence and an increase in offences recorded by the police. Between April 2014 and March 2020, the annual number of domestic abuse-flagged cases referred to the CPS by the police fell by 37%, with similar declines in prosecutions and convictions. In the year ending March 2020, only 9% of domestic abuse-related crimes recorded by the police led to a charge or summons, and the CPS convicted 47,000 domestic abuse cases, compared to 758,000 police-recorded offences relating to domestic abuse.

As incidents of domestic abuse often take place in private, the complainant may be the only witness. CPS guidelines for prosecutors state that:

“Giving evidence may be very difficult for them, or may cause additional difficulties (for example, fear of reprisals; safety of their children; increased family pressures or serious financial repercussions; fear of being 'outed'; fear of a lack of support by the criminal justice system, or specialist support organisations; or, an emotional attachment or loyalty towards the defendant), leading to uncertainty about the course of action they should take.”

[Sarah Champion]

I support the amendments that my hon. Friend is putting forward, because the intention is to put the victim at the absolute centre of all of this. Does she agree that we also need the resources to enable the police to back that up, and to enable the voluntary sector and social workers to put in place the support that she is talking about?

[Sarah Jones]

My hon. Friend is absolutely right. Nearly 5,000 women are turned away from refuges each year, because the support just is not there and so much provision has been taken away. That applies across all kinds of different aspects of the support that should be in place.

It is well known that separation and reporting to police are periods of heightened risk in abusive relationships, and the effectiveness of bail conditions can be critical. The Centre for Women’s Justice has said that it hears from frontline women’s services that breaches of bail are extremely common, and that women often cease to report them once they find that nothing is done by the police after their initial reports. Some victims withdraw support for prosecution in such situations and sometimes disengage from the domestic abuse service. In its briefing, the Centre for Women’s Justice says that

“in the worst case scenarios women feel so unprotected that they reconcile with suspects and return to abusive relationships, because the separation has increased the dangers they face in the short term. As the only power available to police following a breach of pre-charge bail is to arrest the suspect and release him again on bail, officers sometimes say there is nothing they can do. Police often don’t contact a victim until some time has passed since the reported breach, and many breaches are by phone or electronic communications. In these situations there is little purpose in arresting and releasing the suspect on bail again, and it is understandable that officers take no action.”

New clause 54 has been tabled to probe the Minister and to seek some clarifications and assurances on a number of problems that the police deal with and that have been brought to my attention by several police organisations. New clause 54 would make a breach of any condition of pre-charge bail, such as not being allowed to go to someone’s house, to turn up at the school gates or to visit a certain restaurant, a criminal offence. That would prevent the custody clock being run down by purposeful breaches of bail, and it would particularly protect victims in domestic abuse cases, so that abusers are less likely to breach conditions by returning to the home of the victim. If the enforcement around breach of bail could be strengthened, it would likely drive down the number of offenders who breach bail conditions, and it would allow the police to focus on the worst offenders. It is a straightforward amendment, which was drafted with victims in mind but was recommended to us, as I say, by senior members of the police.

The Police Superintendents Association has spoken to us about making the breach of pre-charge bail conditions a stand-alone criminal offence. Paul Griffiths was clear about this in the evidence session. He said that the PSA has concerns about breach of police bail and that

“bail conditions are imposed and then suspects continue to breach those bails. Of course, those bail conditions would be there to protect victims or even the wider public. It could be extremely useful to us for that to be an offence in its own right. I note that there is an introduction to prevent the start of the custody clock, which was another risk that we thought may come from somebody who would consistently breach their bail, risking an impact on the investigation custody time limits for other aspects for which they were under investigation. The Bill suggests that three hours is sufficient to deal with that breach of bail, and that seems appropriate, but it could be beneficial to the police service for that to be an offence in its own right in terms of processing individuals for such breaches.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 30-31, Q45.]

Could the Minister give us her views on that opinion and on the problem that we are seeking to overcome?

I appreciate that part 5 of schedule 4 would make amendments to the functions of the PACE clock, as it would suspend a detention clock for three hours when someone is arrested for failure to comply with bail. The amendments are supposed to prevent suspects from running down their PACE clock by repeatedly breaching bail. However, the view of many senior police whom I have met is that it is not long enough and that they would prefer the breach of pre-charge bail conditions to be a separate offence. I am aware that the Minister might say that to make the breach of pre-charge bail conditions a stand-alone offence could create an imbalance whereby the breach of post-charge bail conditions is not a stand-alone criminal offence, but I would appreciate her giving her views on how we can tackle this issue.

The Centre for Women’s Justice had a slightly different proposal, which is a two-stage process whereby a breach of bail conditions triggers a presumption that the police will impose a domestic abuse protection notice and apply for a domestic abuse protection order. Once the order is in place, a further breach would be a criminal offence, so it creates a “two strikes and you’re out” process. Perhaps the Minister will give us her view on that.

I reiterate that we very much welcome these much-needed reforms to pre-charge bail. Can the Minister talk us through what plans the Government have to monitor the changes to ensure they are effective and how they will ensure that the data on how each police force deals with suspects after they have been released from custody is clear and can be sufficiently reviewed so that victims across the country can be better protected?

[Sarah Champion]

I am in the unusual position of having found out that things were going wrong with pre-charge bail at the same time that the Minister did. We were both in Rotherham with the National Crime Agency, to learn more about how it was investigating past cases of child sexual exploitation. There was a throwaway line by the officer about how things had got a lot more complicated since pre-charge bail was brought in through the Police and Crime Act 2017, and I have to say that I did not know anything about it.

Pre-charge bail does exactly what it says. Before 2017, the police were able to put in place restrictions on a person before they were charged, such as “You cannot leave the country” or “You cannot go within 100 yards of the victim.” This is really important in a place such as Rotherham, because the victims—the survivors—and the perpetrators are sometimes both still living on the same street, or their children may still be going to the same school, but also because a number of the perpetrators are dual nationality and there is a flight risk. The problem the police had was that there was a window of 28 days during which they had to make the charge, and with child abuse cases, particularly past child abuse cases, it can take months if not years to gather all of the evidence they need to make that charge. We found in Rotherham that the police were having to sit on their hands and hope that the perpetrator did not either flee or—as unfortunately happened in a number of well-documented cases—engage in intimidation. There was a lot of intimidation of victims and witnesses because the police were not, for example, able to put distance restrictions on the then alleged perpetrators.

I really welcome that these restrictions are back. I do not want to reflect on the omission in the intervening years—the fact that they were not in place. I am grateful that the police were creative and used release under investigation, because that was really all that they had, but it was not good enough, and it is not good enough. I am proud to support my hon. Friend’s amendments on this topic, which I think strengthen the Bill and make it even more victim-centred. However, I thank the Minister for listening to the women of Rotherham, the National Crime Agency, and all the other forces up and down the country. These events demonstrate to me that we make legislation with the best of intentions, but sometimes the unintended consequences are severe, so I am grateful that the Government have recognised that mistake and redressed it through this Bill.

What I would say, though—I have to say something, Minister—is that child abuse cases and many sexual offence cases are, by necessity, resource-heavy. If she can do more to put resources within the reach of officers so that they can speed up these cases as much as possible in order to eliminate the ongoing trauma that survivors go through, that would be deeply appreciated.

[Victoria Atkins]

Before I explain the clauses, we should remind ourselves why the 2017 Act was passed. Colleagues may remember that in the first half of the past decade, there were several very high-profile investigations into very serious allegations of child sexual abuse and exploitation. There was an understanding that in some cases—not all—we had to look at bail conditions and so on to ensure that these complex investigations were carried out as efficiently and quickly as possible. That was the driving sentiment behind the 2017 legislation. We have listened to the police and to victims and survivors and charities that work with them. We want to improve the efficiency of the pre-charge bail system and encourage the use of bail where necessary and proportionate.

The hon. Member for Croydon Central explained the background to this clause and schedule and its reference to Kay Richardson, whose murder has already been described. When we scrutinised the Domestic Abuse Bill, I said that the experiences of individual victims and their families were behind many of the measures introduced to improve court processes, for example, and to help with services and refuges. This is such an example. Colleagues will understand that we wanted to take time to work through the measures in this Bill and this schedule in order to ensure they were as effective as possible in helping victims. It could not be included in the Domestic Abuse Bill, but I am pleased it is in this Bill.

The motivation behind Kay’s law is to provide better protection for victims through the anticipated increased use of pre-charge bail and to refocus the system, with victims at its heart. The hon. Lady’s amendments and new clause allow us to discuss two significant elements of this reform package: the duty to seek views from alleged victims on pre-charge bail conditions and the consequences for a suspect who breaches those conditions.

As with other measures in the Bill, our reforms to pre-charge bail put victims at the centre of the changes we are making, to help ensure that they are better protected and involved in decisions that affect them. The views of victims on bail conditions and how these can best safeguard them are vital to enable the police to build a full picture of all the relevant circumstances.

I hope we can all agree that this must be balanced against the need for operational flexibility within policing and the need to balance victims’ rights against those of the suspect. While I would expect officers to seek the views of victims in the vast majority of pre-charge bail cases, that may not always be practicable. For a variety of reasons, a victim may be uncontactable by the police. The duties imposed by the legislation must be proportionate within the investigation. It would not be right, and could be disproportionate, to require officers to hold a suspect in custody longer than appropriate until that contact is made. The current wording goes far enough to ensure that the duty is followed in all cases where it is practical to contact the victim.

We are not of the view that the Bill should be amended to require that officers discharge this duty in every case, unless there are exceptional circumstances. We need this change to work in practice for the benefit of victims and the wider public. I make it very clear that this is the expectation within this legislation, but we have to reflect operational practicalities and the balancing act of ensuring the rights of both victims and suspects.

Amendments 96 and 97 seek to provide that the personal circumstances of the victim are taken into account where bail conditions are varied. I agree with this view but believe that the drafting of the Bill as is, coupled with the current legislation in this area, already provides for this. When imposing or varying conditions, custody officers must take into account a number of considerations, including the need to ensure that the suspect does not interfere with witnesses or obstruct the course of justice, and that will include consideration of the victim’s circumstances and needs. The duty set out in the Bill also requires further consideration by the investigating officer to determine which of the bail conditions are relevant conditions—conditions that relate to safeguarding the victim. I anticipate that that will also require consideration of the victim’s personal circumstances and needs as part of this overall assessment.

Finally in this group, new clause 54 aims to create a criminal offence of breach of pre-charge bail conditions. I understand that there is a long-held concern about the sanctions available when a suspect on pre-charge bail breaches their bail conditions. We should remember that officers will, in the first instance, consider whether the behaviour or actions that breached the conditions amount to a separate offence, such as harassment or intimidation. Equally, there are civil orders that can be put in place, breaches of which constitute an offence. I am thinking of a sexual risk order, a stalking protection order and when in due course they are piloted, the new domestic abuse protection orders. I also have concerns around creating an offence without an understanding of the number of people that it would be likely to affect. I am pleased to say that data collection in this area is being improved, but we do not yet have a full picture of what the effects of such an offence are likely to be on suspects, victims and the wider criminal justice system.

To support the increased data collection around breaches, the Bill includes provision for a pause on the detention clock following arrest for breach of conditions to encourage the police to arrest in those instances. The issues raised by the amendments are all ones that we would expect the College of Policing to address in the statutory guidance provided for in the new section 50(b) of the Police and Criminal Evidence Act 1984. In the longer term, across the board of Home Office policy, we will keep under review the case for any additional sanction where pre-charge bail conditions are breached as the reforms provided for in the Bill settle in and we have better data on which to make a decision. For now, however, I invite the hon. Member to withdraw her amendment.

Question put and agreed to.

Clause 43, accordingly, ordered to stand part of the Bill.

--- Later in debate ---

[Sarah Champion]

I will start with new clause 37 on extending double jeopardy. I start with a quote from Dean Radford in the Metro in 2019,

“Like many young boys who grew up with a dream of becoming a footballer, the sport was my whole life. It was the be-all and end-all. I didn’t even want to think about not being offered a contract. That dream looked like it could become reality when I made it to Southampton Football Club at 13 years old. They had produced some of my favourite football heroes and I was given the amazing opportunity to train with boys like myself, who wanted to be the next big thing in football. All of this came to a halt when I was subjected to sexual abuse at the hands of a coach I trusted and looked up to.”

In the 1980s, Radford was one of six boys allegedly abused by their football coach and scout Bob Higgins at Southampton football club. Higgins was acquitted of all charges in the ’90s and continued in same line of work. In 2016 the football abuse scandal rightly erupted, and more than 100 people came forward in relation to Higgins. Higgins was convicted of 45 counts of indecent assault involving 23 victims over a period from 1971 to 1996.

The Criminal Justice Act 2003 sets out exceptions to the law of double jeopardy if the offences are considered “severe” or “serious”. Murder, kidnapping, serious drug offences, serious criminal damage offences, and penetrative child sex offences all come under that definition. The schedule does not exempt any offences relating to non-penetrative sexual assault or sexual activity with a child. Due to double jeopardy exemptions not applying in sexual assault or indecent assault, the original six complainants against Higgins from the 1990s were prevented from having their case reheard. I find it shocking that the law does not deem non-penetrative child abuse as serious or severe enough for retrial.

The Government is right to acknowledge that extending the list of qualifying offences is not something to be undertaken lightly, but any form of child sexual abuse, whether it involves penetration or not, should be considered a serious or severe offence. Survivors do not differentiate between the severity of different forms of sexual abuse; they do not have a hierarchy. They judge it by the impact on their lives, which tends to be both devastating and lifelong. Abuse of a child should be the very definition of a serious crime, regardless of whether penetration has taken place. I return to the quote from Dean Radford in 2019. He says:

“even though Higgins is in jail right now, he spends no time in his cell for the abuse he [allegedly] subjected us to. He sits in jail knowing he got away with it when it comes to us. He took away years of my childhood and ruined my adult life, without paying any consequences for it. There isn’t one day that I don’t feel sick to the stomach, or sleep through one night without waking up and thinking of what he did to me.”

New clause 37 would amend schedule 5 to the Criminal Justice Act to include child sex offences set out in sections 7 to 10 of the Sexual Offences Act 2003 and sections 14 and 15 of the Sexual Offences Act 1956. Will the Government at the very least commit to a review of the law in this area? It has been 20 years since the Law Commission conducted such a review. The proposed changes to the double jeopardy laws have received widespread support, including from the Victims’ Commissioner, the all-party parliamentary group for adult survivors of child sexual abuse, and over 15,000 people who have signed a change.org petition.

The case of Dean Radford, who was abused by Bob Higgins, is just one that devalues the fairness that should exist in our criminal justice system. Higgins was convicted of abusing a total of 24 boys, but the police, Crown Prosecution Service and clearly the criminal jury and judge appreciated the veracity and importance of Radford’s evidence, because as he was a witness at Higgins’ trial in respect of the abuse—but he did not get the conviction in relation to Higgins’ abuse of him.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

My hon. Friend is making an excellent speech. My constituent Ian Ackley was also abused, by Barry Bennell. He was one of the first whistleblowers on the sexual abuse of young men by football coaches, but because he was one of the first, he did not get the support that others got subsequently. As a result, he was encouraged to allow certain offences not to be pursued as much as he would have liked. Does she think that, with additional support, that would change—and how does that relate to her new clause?

[Sarah Champion]

My hon. Friend knows that I have the great privilege of knowing and working with Ian. He is a remarkable survivor, who does everything he can both to prevent and to seek justice for child abuse. The problem in a lot of these cases is that the abuse happened in the past. As technology has moved forward—in the use of DNA, for example—the evidence available now will be so comprehensively different from that available to those brave enough and successful enough to try to get a case to court in, say, the ’70s or ’80s, that not to allow double jeopardy in the case of child abuse seems a really poor and morally reprehensible decision. We have the opportunity to change that now for these specific cases.

As I said, the last review into double jeopardy was conducted 20 years ago by the Law Commission. Since then, the disclosure in 2017 of abuse by Jimmy Savile and in 2016 of abuse within football, and disclosures in other parts of society have changed the societal landscape so radically that I ask the Minister to consider at the very least initiating such a review.

I will end with a question that I put to the Victims’ Commissioner:

“Non-penetrative child abuse offences are not seen as serious crime; therefore, they do not fall under the double jeopardy rule. Should they be?”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 113, Q178.]

Her answer, in a word, was yes. I urge the Minister, if she will not accept the new clause, to consider a review into this important topic, which is widely supported by the public and a number of bodies.

I will now speak to new clauses 39, 40 and 41 together, while giving a little bit more detail on each one. They all relate to online sexual abuse of children. It might seem silly to say, but people seem to see online abuse as not as severe as abuse in a room, which is nonsense, because online abuse is a child being abused; they are just not in the same room as the abuser. I have to put a health warning on some of the examples that I will give, but I need to give them to explain. Hopefully no one in this room has any knowledge about what is going on out there on the internet, but unfortunately some of us work in this field and so do know. It is pretty chilling, hence my earlier attempt to put “trauma” into the police covenant.

I have worked really closely on these new clauses with the International Justice Mission, which is a fantastic organisation.

[Victoria Atkins]

indicated assent.

[Sarah Champion]

The Minister is nodding. The IJM is leading the way in working collaboratively with international justice departments, police departments and local voluntary organisations around the world. It gave me one example from its recent work in the Philippines, where it has been spending a lot of time. Recently, Philippines police rescued a three-month-old baby in an operation to free children from online sexual exploitation, and weeks later they brought a two-year-old to safety. This is what we are talking about when we talk about online abuse.

The International Justice Mission reports that children it has helped to rescue have been abused by family members. It has been supporting children who have, for example, contracted sexually transmitted diseases as a result of their abuse. Online sexual exploitation includes creating, possessing or distributing child sexual exploitation material such as photos or videos. Traffickers livestream the exploitation to satisfy the online demand of child sex offenders paying to direct the abuse in real time. That crime has been growing internationally, particularly during the covid pandemic, as online offenders have been at home with greater access to the internet and with fewer eyes on them, while victims have been locked into the same environment as their traffickers.

The National Crime Agency has stated its belief that the UK is the world’s third largest consumer of livestreamed abuse. That means that people here are sat in their homes directing the abuse of a child in another country. We must strengthen our criminal legal framework for apprehending those offenders in the UK. They may not physically not carry out the act, but they are directing it, and as far as I am concerned, that is as good as.

The International Justice Mission research shows a trend of relatively lenient sentencing for sex offenders in the UK convicted of abusing children in the Philippines, for example. Offenders serve on average only two years and four months in prison, even though they spent several years and thousands of pounds directing the sexual abuse of children. Those sentences do not represent justice for the survivors and, probably just as important, they do not deter the perpetrators. Prevention is vital, but a framework must be in place to give law enforcement the tools they need to act effectively.

I welcome some of the changes in the Bill, which will really help to deal with the problem, including clause 44 and the positive shifts on sentencing for those convicted of arranging or facilitating sexual abuse. We could go further simply by including online offences.

[Sarah Jones]

I cannot really argue with the points my hon. Friend makes, which seem completely correct. At the bottom of my road was the Shirley Oaks home, which was the scene of massively severe child abuse decades ago. Victims are still coming forward and being compensated for it. The internet now makes it possible for huge numbers of people to be involved in that kind of awful activity, so it is even more important not only that we catch up and stop seeing online offences as different criminal offences, but that we ensure that our response to that crime and our sentencing are such that we can stem the tide. We need to go even further, because that kind of abuse is so widely available that perpetrators can abuse children in any country around the world.

[Sarah Champion]

My hon. Friend makes absolutely the right point. I am talking about UK offenders abusing children internationally, but hon. Members, particularly the Minister, will also be very aware of the rapid escalation of abuse of UK children through online means.

I remember when I first started to research the issue. Simon Bailey, the National Police Chiefs’ Council lead for child protection, said, “Sarah, what you need to understand is that when a family is sat down watching ‘Antiques Roadshow’ on a Sunday night, and the six-year-old is there playing on their iPad, they could be being groomed and abused in the same room as the parents, and the parents just don’t understand that.” It always chills me. If I may deviate very slightly, Chair, it frustrates me enormously that the Government’s legislation for mandatory relationship education for all children from primary school age, which should have been introduced in September, still has not been brought forward. We have to address that because covid has really escalated the abuse faced by children in this country and internationally.

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Territorial application is making sure that it does not matter where in the world the offences happen, they can still be prosecuted. Section 72 of the Sexual Offences Act 2003 makes it clear that the offences can be prosecuted even when the physical act happens outside the United Kingdom. A section 14 offence—the one being strengthened by clause 44—again applies to acts conducted or carried out in any part of the world. The law allows prosecution for an act committed elsewhere, where the communication is online. That is already inherent in section 14; it is inherent in the 2003 Act, which we are strengthening.

[Sarah Champion]

The Minister’s speech is incredibly reassuring, and I am glad that it will now be in black and white in the transcript, because it gives the comfort that we need. However, hearing everything that he is saying, is there any objection to putting the words “online” or “international” in the Bill, just for clarity and just because there is a change? The likelihood of people reading through all the guidance when they are making a decision is slender, whereas they will go to the Act and it would be there in black and white, which would give a lot of comfort.

[Chris Philp]

I thank the hon. Lady for her question. My clear understanding is that the police already prosecute for these offences. I will go away and double-check with colleagues to make sure that there is no scope for misunderstanding by law enforcement authorities: the police; the National Crime Agency; and the Crown Prosecution Service. Having investigated that question further, I will write to her with the reply to her question. The law permits it, and the law is being used. However, I will just seek that assurance that there is no misunderstanding by practitioners. My understanding, as I say, is that they are prosecuting and getting some convictions, but I will double-check her point and get back to her in writing.

I think that speaks to the issues raised in new clauses 40 and 41. In relation to new clause 39, I think that the essence of what the hon. Lady is seeking to achieve is delivered by clause 44, as it is drafted, by making the maximum penalty the maximum sentence for the underlying act that is committed. To take the most extreme and distressing example, if someone is being raped and that has been incited, facilitated or arranged online, that facilitation will now—if we pass this clause—lead to that maximum sentence applying. It will be the underlying offence that triggers the maximum sentence, which I think addresses the point that she is quite rightly making in new clause 39. I believe that clause 44 addresses that issue.

Finally, there is the question of new clause 37, which is concerned with double jeopardy. I completely accept, and I think the Government accept, that this is an incredibly difficult area, where a very difficult balance has to be struck, because on the one hand we have long-standing interests of natural justice, which say that someone can only be tried for a given offence once for reasons of fairness, natural justice and finality, but on the other hand there are the points that the hon. Lady has very powerfully made concerning these very distressing offences.

As the hon. Lady said, this issue was looked at by the Law Commission in the early 2000s and then legislated for via the 2003 Act. In fact, the Law Commission initially only recommended that the exemption to double jeopardy should apply to murder. However, when Parliament debated this question, it decided to expand the range of exemptions, which were covered in schedule 5 to the 2003 Act, to cover, in addition to homicide, other offences, as she said, such as rape, penetrative sexual offences, kidnapping and war crimes. Such offences are generally punishable by a term of life imprisonment, or in one or two cases by the exceptionally high standard determinate sentence of 30 years.

A line has to be drawn as these things are balanced, which is an extremely difficult line to draw, because there will always be offences that are just over the non- exception side of that schedule 5 line, which are very grave offences. The hon. Lady very powerfully described why those offences are so appalling, offensive and terrible. She is right—they are—but we have to try to strike a balance in deciding where that line is drawn. Clearly, offences of rape and sexual assault involving penetration are exempted—they can be tried again—but those that do not involve penetration are not in schedule 5, so the rules on double jeopardy apply.

The Bill does not change that, and there are no plans to change where the line is drawn. As the hon. Lady raised the question in such powerful terms, I will raise it with more senior colleagues in Government to test their opinion—I can make no stronger undertaking than that—to ensure that her point, which she articulated so powerfully, gets voiced. I will let her know the response. I do understand her point, but there is a balance to be struck and considerations of natural justice that need to be weighed as well.

[Sarah Champion]

I appreciate what the Minister is saying. In that discussion, will he throw in the potential of another review? In relation to this crime, things have moved on so much, not in the last 20 years, but in the last five years, so it would be good to hear his colleagues’ thoughts on that as well.

[Chris Philp]

Well, I have reached the end of my remarks—

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[The Chair]

I know that members of the public get a little confused by this, so I remind them that the new clauses were debated as part of our discussion on clause 44 because that is where they sit most logically, but we will vote on them at the end of our consideration.

Question put and agreed to.

Clause 44 accordingly ordered to stand part of the Bill.

Clause 45

Positions of trust

[Sarah Champion (Rotherham) (Lab)]

I beg to move amendment 7, in clause 45, page 37, line 1, leave out subsections (2) and (3) and insert—

“(2) In section 21, after subsection (5), insert—

(5A) This subsection applies if A is regularly involved in caring for, training, supervising or being in sole charge of B and none of subsections (2) to (13) of this section otherwise applies.”

(3) In section 16—

(a) in subsection (2)(a), leave out ‘or (5)’ and insert ‘, (5) or (5A)’;

(b) in subsection (4)(a), leave out ‘or (5)’ and insert ‘, (5) or (5A)’.

(4) In section 17—

(a) in subsection (2)(a), leave out ‘or (5)’ and insert ‘, (5) or (5A)’;

(b) in subsection (4)(a), leave out ‘or (5)’ and insert ‘, (5) or (5A)’.

(5) In section 18—

(a) in subsection (2)(a), leave out ‘or (5)’ and insert ‘, (5) or (5A)’;

(b) in subsection (4)(a), leave out ‘or (5)’ and insert ‘, (5) or (5A)’.

(6) In section 19—

(a) in subsection (2)(a), leave out ‘or (5)’ and insert ‘, (5) or (5A)’;

(b) in subsection (4)(a), leave out ‘or (5)’ and insert ‘, (5) or (5A)’.”

This amendment aims to ensure that all adults who are in a position of trust are subject to the child sexual abuse offences provided for by section 16 to 19 of the Sexual Offences Act 2003, rather than simply extending the definition to those who coach, teach, train, supervise or instruct children in a sport or a religion.

I am sorry; everyone must be sick of my voice now. I must say that I am sick of giving this speech on positions of trust, because I have given it so many times. I will start, somewhat cheekily, by quoting the Under-Secretary of State for the Home Department, the hon. Member for Louth and Horncastle, back to herself on clause 1 and the police covenant. On Tuesday, she said:

“We have kept the wording deliberately broad to ensure that there is room within the legislation to allow the Secretary of State to consider issues of importance as they arise, and the issues that have been raised here will be included in those considerations.”—[Official Report, Police, Crime Sentencing and Courts Public Bill Committee, 25 May 2021; c. 198.]

I ask her to take a similar approach on positions of trust. I am hugely—[Interruption.] Oh. I will ask the Under-Secretary of State for the Home Department, the hon. Member for Croydon South, to listen to the other Minister’s wise words when it comes to considering positions of trust. It is a real collaborative effort when it comes to tackling child abuse, and I do appreciate that.

Let me set out my stall. At the time of the Sexual Offences Act 2003, it was rightly identified that certain adults had a position of trust over a child that made it all the more inappropriate for them to have sexual relations with that child. I am talking specifically about children aged 16 or 17 who are able to have sex within the law, and who are able to give consent. Because of the adult’s position of trust, they have a disproportionate amount of power over that child, which brings into debate the free gift of consent that a child could give because of that power imbalance. Clause 22(2) of the Sexual Offences Act defines someone in a position of trust, saying,

“a person looks after persons under 18 if he is regularly”—

that is a key word—

“involved in caring for, training, supervising or being in sole charge of such persons.”

I think we would all agree on that.

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[Alex Cunningham]

My mum is a wise older woman who will be 88 on 1 August. She has offered me many a statement, and sometimes direction, that has given me food for thought and helped me form opinions or even take action to work for change. One expression she would use in the past was, “We all come into the world the same way, and we all leave it the same way.” She knew, as we all do, that opportunities between and birth and death vary tremendously for our people. We need to work for equality wherever we can, particularly for our children and young people. We need to apply that work on equality to this Bill, to ensure that all young people are protected from adults in a position of trust over them and, where they are exploited, to ensure that the full weight of the law is felt by those who have betrayed that position and possibly ruined young persons’ lives.

The Opposition have worked for months with the police and policing and justice stakeholders from across the field in drawing together our various amendments. It has been extremely heartening that Ministers have already shown a great willingness to work together to improve the Bill. That has been extremely welcome thus far, and I hope it will extend to our discussion on clause 45.

This matter has strong cross-party support, and I am sure hon. Members join me in giving wholehearted thanks to my hon. Friend the Member for Rotherham and those she paid tribute to earlier—the hon. Member for Chatham and Aylesford and Baroness Grey-Thompson—for their tireless work prosecuting the case and campaigning for wider protections for our children.

The proposed extension to the definition of “position of trust” is very much welcomed by the Opposition, but it is vital that we do not miss this opportunity to introduce a comprehensive solution that protects children from potentially abusive adults in positions of influence over them in all activities and settings. It is time to Close the Loophole, as the NSPCC has called its campaign.

Before I discuss the excellent amendment from my hon. Friend the Member for Rotherham, on which she made an outstanding and meaningful speech, I would like to seek some clarity about who is covered by the definition currently in the Bill, to eliminate confusion. Can the Minister confirm that, with regard to sports, the current wording covers those adults who are instructing and training children in recreational physical activity that is not directly leading to a specific competitive event or display—for example, swimming lessons or dance classes? Can he also confirm that, with regard to religion, the current wording covers adults who are leading activities that have a religious ethos, or who are operating under the auspices of a specific religious organisation or denomination, but where the activities are not directly related to religious practice—for instance, a temple youth group, a church camp or outdoor activities? What happens there? I would welcome clarity on all those points. The possible confusion in the current wording, which has been pointed out by the NSPCC, means that the clause as it stands may not cover all sporting and religious activity.

The lack of clarity about the Government’s proposals goes to illustrate the issue at hand. Why are we excluding children from the protections of this clause in some settings, but not in others? I will repeat that point a few times. Why have the Government chosen to draw the line here? Why are some children being safeguarded and others left at risk? As it stands, the Government will be excluding children from this new protection in many settings, such as music, creative and performing arts, tutoring, cadets, driving lessons and youth clubs.

[Sarah Champion]

My hon. Friend is making a very strong point. I am thinking about this from a parent’s point of view. At the moment, they assume that everybody in a position of trust over their child, as they would see it, is covered by this legislation. It seems ridiculous that, when we are talking about a child in school—I will stay with the example of the maths teacher—the maths teacher would be convicted if they had sex with a 16-year-old, but if the child leaves school and goes to a maths tutor, the maths tutor could have sex with them and would not be prosecuted. The issue is just about getting clarity for everyone on this.

[Alex Cunningham]

I thank my hon. Friend for making that point. It illustrates exactly what we are about here, which is that everybody should be treated the same. Incidentally, I had an excellent maths teacher; I do not remember his first name, but he was Mr Fielding, and he was a first-class maths teacher.

I am sure that we all agree that extracurricular activities such as those that I have outlined are vital for children’s development. They provide opportunities for children to learn new skills, make new friends and develop self-confidence. But why should those young people not be afforded the same level of protection when doing them?

I discussed this issue recently with my hon. Friend the Member for York Central (Rachael Maskell), and she shared with me a number of horrendous cases of abuse by adults in positions of trust that have arisen in her constituency, yet the definition proposed by the Government would not cover these horrific abuses. I understand that she discussed one particular case in meetings with Justice and Home Office Ministers, so she was surprised, as I am, that no action was taken in this legislation to deal with people in similar situations in the future.

I am sharing details of the case here with my hon. Friend’s permission. She said:

“With regard to tutors, we had a dreadful case of grooming and then assault on a teenager who was a music student, by her private tutor.

She was groomed from the age of 14, was a rising talent, which he nurtured and there came a relationship of dependency in the light of this.

He then raped her when she turned 16.

The case went to the CPS but they did not proceed with the case despite the support of the local police.

It destroyed her.

Music lessons were conducted in private. He held her future career in his hands.

He was in a position of trust and abused that trust.”

Can the Government explain why they have chosen not to extend the positions of trust laws to cover all situations like this, where the adult holds the power to influence a young person’s future and is in close contact with the child? If we fail to close this loophole, we will fail young victims like the young woman in the case I just described.

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As noted by my hon. Friend the Member for Rotherham, while subsection (2) allows the Secretary of State to add or remove activities in the future, we are concerned by the challenge of collecting data on something that is not defined in law.

[Sarah Champion]

Like my hon. Friend, I am somewhat perplexed. He is right: subsection (2) suggests that the Government recognise that additional careers may need to come under the legislation, now or in the future, so why are they closing the door now when they recognise that they will need to open it again in a year or in 10 years? NSPCC research on the cases it already knows have been prosecuted identifies—as well as the teaching professions, faith and sport—transport, youth work, scouts, cadets, charities and the performing arts as the most prevalent careers for cases. We know that there are more cases.

[Alex Cunningham]

Yes, and that seems so obvious. The briefings we have received from different organisations outline that the fact that this is the case across all the activity that my hon. Friend describes. How will the Minister determine what is to be added or removed in future? What criteria will be used to determine which child should be protected and which should not?

No doubt a robust mechanism will be required to monitor the implementation and to ensure that no child is placed at unnecessary risk, but the legal framework makes it difficult to collect comprehensive data on the scale of abuse by those in positions of trust. We have insight to the scale of the problem, and I thank the NSPCC for providing these figures and pay tribute to it. The NSPCC is probably one of the clearest about what it is trying to achieve; when it sends me a brief, I know exactly what it wants, and I trust it tremendously when it tells me things.

The NSPCC tells me that the Office for National Statistics has analysed child sexual abuse data from the Crime Survey for England and Wales, which asks people over 16 to report on their experiences of abuse in childhood. It found that in 9.7% of all contact child abuse cases, and in 4.4% of all non-contact child abuse cases, the perpetrator was an adult in a position of trust or authority over the child. For males—this actually surprised me—19% of contact abuse was by a person in a position of trust or authority.

In the data from the Crime Survey for England and Wales, the definition of a person in a position of trust or authority included positions currently included in the definition of positions of trust, such as teachers and social workers, and persons included within the Government’s proposals in clause 45, such as sports coaches and religious leaders, as well as positions that remain outside the Government’s proposals, including private tutors, youth workers and those leading music and creative activities, which we have covered.

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[Alex Cunningham]

Indeed I do. People say, “It doesn’t matter what laws you pass; people will find a way.” That is one of the terrible things in our society.

Having heard what both my hon. Friends have said, I reflect on the parents and the trauma that parents face when they realise that they have allowed their child—their daughter—to be tutored by a particular person to learn the piano, or entrusted them to a sports coach working with 20 children, who goes on to abuse them. The parents have that guilt—guilt they have to live with. It is not their fault, but they still have to live with the guilt.

We must strengthen the law as much as possible, so that if such cases come to light the perpetrators face the full force of the law, and we must not allow any loopholes whatever to protect any of those people.

The figures from the NSPCC that I mentioned come from a series of freedom of information requests on all local authority children’s services in England and Wales between 2014 and 2018. The NSPCC found that over a four-year period there were 653 complaints about adults who were not covered by the criminal law having sex with 16 and 17-year-olds in their care. That compares to 1,025 criminal offences of abuse of a position of trust of a sexual nature in the same period.

The NSPCC also asked local authorities to provide information about the fields of work of the referrals: 26% were cases in sport and leisure settings; 12% were in religious group settings; 11% were cases involving transport or involving drivers—my hon. Friend the Member for Croydon Central referred to cases involving driving instructors; 5.7% were in settings of voluntary or charity work; and another 5.7% were in cadet organisations. That is 653 cases where our law did not protect vulnerable young people.

We have a chance to extend that provision to protect children in those settings future and I urge the Government to take it—please do not lose the opportunity. Those figures are deeply disturbing, but statistics alone do not convey the impact that abuse of a position of trust has on children and young people, including the truly devastating impact when someone is told that what happened to them is not a criminal offence and nothing can be done about it. Too many young victims are being given the message that the adult who abused their position did nothing wrong and that to have prevented it from happening the young person should not have consented.

With support from the NSPCC, “Hannah”, whose name has been changed, and two other brave young women directly affected by that form of abuse wrote directly to the Lord Chancellor and Secretary of State for Justice. “Hannah” told the NSPCC, “When I turned 16, ‘Jeff’, my swimming coach, began to comment on my appearance. He would tell me that I looked nice or that clothes looked good on me. No one had ever said these things to me before, and I wasn’t sure how to feel. Soon he started pushing the boundaries. Initially he would just give me a hug. Then one day he gave me a hug and put his hand on my bottom. ‘Jeff’ spent a long time making me feel comfortable. I remember the first time we kissed. After training, we started to be intimate in that way a couple would. After some time, we started having sex. This was my first sexual experience. ‘Jeff’ told me to keep this a secret. I was under the impression when ‘Jeff’ told me not to tell anyone that it would be for the best for my swimming, and this would develop into a proper relationship and we could tell everyone. I wanted to tell my friends, but I knew I couldn’t. When this relationship came tumbling down, I changed with it. I was left feeling really angry, I was a difficult person to be around. It took me a long time to trust friends and family, to let them hug me again.”

Hearing the devastating impact of that horrific abuse is absolutely heartrending. I want to put on record the great debt of gratitude that we as parliamentarians owe to the courageous young people, such as “Hannah”, who work with the NSPCC to lobby the Government on the issue. Their civic-mindedness in the wake of such dreadful abuse is so very admirable, and because of their work, alongside others, the law will be improved to protect more young people.

In the event that the Government do not support my hon. Friend’s excellent amendment, will the Minister say how the risks associated with positions that remain outside the definition—for example, private music tutor or cadet leader—will be monitored? The consistent collection and monitoring of data relating to the implementation and effectiveness of clause 45 are vital if it is to protect the full range of young people who may come into contact with personal abusers. If the Minister will not do what the Opposition consider the right thing, will he please provide clarity on the review mechanisms the Government will put in place to decide whether further extensions of the definition of “positions of trust” in clause 45(2) should take place?

I want to consider some of the Government’s previous objections to the extension of the ambit of the “positions of trust” definition. In March 2020, during a Westminster Hall debate on sports coaches in positions of trust, the Under-Secretary of State for Justice, the hon. Member for Cheltenham (Alex Chalk), said:

“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.”

Although I agree that it is not our place to deny age-appropriate rights as prescribed by Parliament, this is not an attempt to raise the age of consent by stealth. It is an attempt to offer extra protection to young people when they are specifically in a context where there is a disproportionate power imbalance.

[Sarah Champion]

I hear that the Government use that excuse a lot, and my rebuttal is always that it has not been an issue for the past 18 years when it has been in place for teachers, so why would it suddenly be an issue with different professions?

[Alex Cunningham]

Again, my hon. Friend makes it very clear that we are bamboozled by the approach that the Government are taking. Surely the figures that I mentioned earlier show that there is significant prevalence of abuse in such settings, and that Parliament should step in and offer protections to our young people. Later today, we will be talking about memorials. Apparently, the law could be changed, and one person extra might go to prison as a result of the new legislation, yet here is a serious situation whereby many people could be sent to prison for the abuse of young people, but the Government are not making the necessary changes. We hope that the Minister is actually listening.

In Westminster Hall, the hon. Member for Cheltenham said:

“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… 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’”—

including, as he said himself—

“‘a family member, teacher, religious leader, employer, gang member, carer, doctor.’”

He continued:

“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.”—[Official Report, 4 March 2020; Vol. 672, c. 304WH.]

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[Chris Philp]

I think that was the constituency case raised by the hon. Member for York Central. In that case, the victim alleged rape—she was saying that there was no consent—and in cases where there is no consent, it is obviously appropriate that it is investigated as rape and prosecution is sought for rape. The legislation we are discussing today deals with cases where there is consent. I do not know the particulars of the case—the shadow Minister said that it was not subsequently proceeded with—but that is a non-consent case. We are discussing cases where, even with consent, it is still held that an offence has been committed.

I think we are agreed about the need for reform. We have listened carefully to the cases that have been made, and have made these proposals. The shadow Minister and the hon. Member for Rotherham have raised a number of questions through their amendments and in their speeches, the first of which is, “Why shouldn’t this be much broader? Rather than specifying sports and religion, why not—as amendment 7 does—have a very broad clause that says

‘if A is regularly involved in caring for, training, supervising or being in sole charge of B’?”

That is an extremely broad set of definitions, and it is not completely clear from that very broad drafting who might or might not be included in them. The shadow Minister asked, “Why be specific? Why not be general?” The first reason for wanting to be specific rather than general—specifying these two roles, religion and sport, to start with—is so that people have certainty about which side of the line they are on. If the clause is drafted very broadly—“caring, training, supervising”—supervising is an extraordinarily broad term, so it would not be immediately obvious who is included and who is not included. One of the features of good law is that the people who might be subject to it have some pretty good degree of certainty about whether they are going to be affected or not. The Government’s concern about terms as broad as “supervising” is the question of what is covered by them. What is included, and what is excluded? There are a lot of things that could be covered by the term “supervising”.

[Sarah Champion]

As I am sure the Minister is aware, amendment 7 is a direct lift from the Sexual Offences Act 2003, so the definition that he is pulling apart now is already law. The bit that we are challenging is adding the specific job titles to the legislation, which I think is already fit for purpose.

[Chris Philp]

I understand the hon. Lady’s point. However, the point about providing some degree of certainty for someone in a particular role in this context, which is at the edge of the law—where the law is evolving—none the less has some validity.

Having said that we want to be specific rather than general for the reason just outlined, the question that then arises—which the shadow Minister and the hon. Lady have asked—is, “Why these two roles? Why sports and religion to start with?” I stress the words “start with”. The reason is twofold: first, those particular roles carry an unusual degree of influence.

Religion is a powerful force. Ministers of religion or people who lead religious congregations often wield very extreme and high levels of influence over their congregations and their followers. It therefore seems appropriate to recognise the high degree of influence that flows from that particular religious context.

In the case of sports coaches, there is clearly a degree of physical proximity. In fact, the shadow Minister, powerfully and eloquently illustrated in describing the case of Hannah—the case of the swimming coach—how it is that sports settings are so easily abused. That is why sport was selected as one of the two specific areas. It also flows from the data. In fact, the shadow Minister referred to the January 2020 report of the all-party parliamentary group on safeguarding in faith settings, chaired by the hon. Member for Rotherham. It analysed the 653 complaints mentioned by the shadow Minister and, in 495 of those, the type of role that the person was discharging was identified. The figures I have are slightly different from the shadow Minister’s—they are broadly similar, though—and the top two categories were sport, at 31%, and faith, at 14%. Therefore, the two roles here are the two top roles revealed by that survey. Of course, there were other roles with smaller percentages.

[Sarah Champion]

The frustration of wearing a mask is that the Minister cannot see that I am smiling. He is quoting back all the arguments I have been making for the last five years—I am grateful that they have sunk in. He is right that we went for the most obvious and biggest offenders, but that is now. As I said in my speech, I am concerned that in five years it may be counsellors, whom we have not mentioned today but have a huge influence over the people they support, or an online form that turns online grooming into real abuse. I completely agree with him, but this measure needs to be future-proofed so that we do not keep having the same arguments as the professions and influences change.

[Chris Philp]

I pay tribute again to the work done by the hon. Member in this area over many years and the work done by her all-party parliamentary group. I am glad that we agree on the starting point, because she has called for it and the data of her all-party parliamentary group points to it as well. The question is how it is best future-proofed and whether one tries to do so with the general provisions in amendment 7, which would run the risk of giving us a lack of clarity and potentially inadvertently criminalising some situations that hon. Members may not feel appropriate, or with the other approach of starting with these two specifics—I think we agree they are the right starting point, because the evidence points there—and adding further positions as the evidence base develops. That is what proposed new section 22A(4) of the 2003 Act will do: it will give the Secretary of State power to add other specific roles as that evidence base develops.

--- Later in debate ---

[Chris Philp]

The criteria are not specified in subsection (4), which simply says:

“The Secretary of State may by regulations amend subsections (1) and (2) to add or remove an activity in which a person may be coached, taught, trained, supervised or instructed.”

However, providing the profession or category of person being added is involved in coaching, teaching, training, supervision or instruction—provided they do one of those things—they are capable of being added.

On the criteria that might be applied, that would be for the Secretary of State and a Delegated Legislation Committee to determine. I suggest that what would make sense is for the criteria to consider two or three things: first, the degree of influence that the person has—that case has been met in the case of sports’ coaches and religious ministers or practitioners—and, secondly, that there is an evidence base to demonstrate that abuse of that position of authority is occurring. Again, that case has been made for sports and ministers or practitioners of religion, because the data that the APPG received shows that.

I suggest to the Committee—this is not in the legislation—that if those two criteria are met, it might be appropriate to make further additions, but that would be for the Secretary of State and a Delegated Legislation Committee to decide, case by case. I have no doubt that the hon. Member for Rotherham, the APPG and others will make that case. The mechanism is there to add things pretty quickly from month to month, or year to year, as the cases get laid out.

In conclusion, it strikes the Government that the provision is the best way of protecting vulnerable people—we have started with sports and religion—but we have also created the facility to expand the list quickly and easily by delegated legislation, as the case gets made by campaigners over time. On that basis, I hope that the Committee will be content to see clause 45 stand part of the Bill. I hope that the provisions that I have been explaining mean that amendment 7 does not need to be pressed to a vote.

[Sarah Champion]

I have heard everything that the Minister said. I 100% put on the record my gratitude that our work to research and prove the case around faith leaders was heard and listened to. However, my concern is the clarity. No legislation is effective unless it is out in the public domain, whether that is for the professionals who need to use it or, for example, the victims or families who need to know it is there.

As the Bill stands, my concern is that, were we to go to for the

“regularly involved in caring for, training, supervising or being in sole charge of”

persons as the definition that means it is a crime, any parent or individual would know what that meant. I do not want to press the amendment to a vote now, but I will reserve the right to later, because 21 MPs spoke on this in the Chamber, so I think it needs to be heard by the Minister. We need that clarity so that any parent or child knows what their rights are. Just having certain professions defined muddies the waters further rather than a blanket definition based on role and responsibility. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[The Chair]

We have had a fairly thorough debate, so I am not sure there is any need for a clause stand part debate.

Clause 45 ordered to stand part of the Bill.

Clause 46

Criminal damage to memorials: mode of trial

Question proposed, That the clause stand part of the Bill.