Serious Crime Bill [HL]

I am grateful to both opposition parties for their interest in this part of the Bill. Before I turn to the specifics of the amendments, it might be helpful to provide some background to Clause 47, to which they relate. Clause 47 provides an exemption from liability for the offences created by Clauses 39 to 41 where the offences encouraged or assisted are ““protective offences””. Such an exemption exists already in common law. For that reason, one could argue that there is no need to change things. Protective offences are offences that have been created to protect a particular category of people. One example is child sex offences. The exemption would apply where the person who provided the encouragement or assistance would in all circumstances be considered the ““victim”” of the offence had it taken place. For example, this clause would ensure that a girl of 12 who encouraged a man to have sex with her would not be guilty of encouraging or assisting child rape because if the offence had been committed she would be considered the victim. Amendment No. 101 would remove the definition of ““protective offence”” from the clause. A definition is necessary and would need to be sufficiently wide. It should not be limited to sex offences; for example, the Care Standards Act 2000 includes offences to protect vulnerable adults residing in care homes. It would be difficult to define ““protective offences”” in any other way, yet it is important to exclude this category of person from the scope of these offences. Amendment No. 101A would insert a new clause after Clause 47 and exempt a person who commits an act capable of assisting and encouraging an offence where he is both the perpetrator and victim of it and no one else is hurt. This would cover situations where the offence is not a ““protective offence””. I have already spoken about why there needs to be a definition of ““protective offence”” and why it should be limited. However, offences of this sort, where D is the victim of the offence, should not be exempt from liability. It would perhaps be helpful to provide an example to illustrate why. It is the example on which the noble Lord, Lord Burnett, drew. Two men are having a drunken argument in a pub. The first, D, states to the other, P, ““Go on, then, if you’re so tough, punch me””. P punches D repeatedly, causing grievous bodily harm. It is true that a person could in theory be guilty of encouraging an offence where he is the victim if the offence is not a protective offence. However, in the example that I have used, it would be unlikely that a prosecution would be brought against the victim for encouraging grievous bodily harm against himself, although there might be cases where it would be in the public interest for a prosecution to be brought. D might deliberately be provoking P in a way that he knows will cause him to use violence, or D might be spoiling for a fight and provoking P so that he can say, ““He started it””. It is not desirable that D should be able to encourage violence in this way and incur no liability. My guess is that those circumstances would be few and far between, but, for those reasons, we have to resist both amendments. The noble Baroness, Lady Anelay, probably caused some consternation on the Liberal Democrat Benches, because she rather found them out with her German cannibalism example. If the term ““finessing””, used by the noble Lord, Lord Burnett, is a cover for anything, it is probably for, ““Well, we know we’re going to have to withdraw this one because it just does not work””. ““Finessing”” is therefore what noble Lords on those Benches will have to do, because the German cannibal would certainly escape conviction under the Liberal Democrat amendment. The noble Baroness, Lady Anelay, asked why the point was not covered in the Sexual Offences Act. It is a fair point, and I do not have an answer to it. We will research it and include the answer in the growing correspondence to which we keep referring. I hope that, having heard that, noble Lords will feel able to withdraw their amendments.