My Lords, before I turn to this amendment, I begin with an apology. I made an incorrect statement in an earlier group. On Amendment 104B, I said that in September 2019, we rolled Section 28 out to a further four courts” and then I identified them. I should have said “September 2021”, not “September 2019”. I have already sent a written note to the noble Lord, Lord Ponsonby of Shulbrede, correcting the point, but I take this opportunity to correct the record and apologise to the House for that error.
I thank the noble Baroness, Lady Kennedy of Cradley, for tabling the amendment, which is aimed at a narrow but important category of cases that remain subject to a highly unusual time limit—we do not usually have
time limits in our criminal law—and I thank her for the very useful discussions that we have been able to have on this topic. The amendment affects offences under Section 6 of the Sexual Offences Act 1956 of unlawful but consensual sexual intercourse with a girl aged 13 to 15 that were committed before 1 May 2004, when the Sexual Offences Act 2003 came into force and replaced the 1956 Act. It was a requirement under the earlier statute that a prosecution for this under Section 6 had to be commenced within 12 months of the offence. There is no time limit for the offences under the 2003 Act that have been chargeable since 1 May 2004, but when the offence was committed before that date, the 12-month limit for commencing a prosecution continued to apply. That, of course, has long since expired.
As my noble and learned friend Lord Stewart of Dirleton explained in Committee, Parliament usually acts on the principle of non-retroactivity. Although removing the time limit in circumstances where a prosecution was already time-barred would not have amounted to substantive retroactivity in the sense of criminalising conduct that was not previously unlawful, it still would have exposed a person to criminal liability where there had not been any before.
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When this matter was touched on in the House of Lords case referred to by the noble Baroness—R v J, 2004, UKHL 42—Lord Steyn simply observed without further comment:
“The change in the law is, of course, not of retrospective effect.”
The question now is whether it would be right, 18 years later, to legislate to render the time bar ineffective. The Government’s position has been that it would not be right, although I accept that we are not talking about making illegal something that was legal at the time; we are talking about removing a time bar with retrospective effect. However, there is more than one view on this subject. The contrary view was expressed clearly by the noble Baroness in support of her amendment. I am grateful to her for our discussions last week and for bringing along Dr Jonathan Rogers of Cambridge University, who really illuminated the discussion. He has written several important and helpful articles on this point; they repay careful reading.
It is fair to say that the position as regards the ECHR points is somewhat unclear. The question was expressly left open by the Strasbourg court in the case of Coëme and others v Belgium in 2000. Dr Rogers has argued that, in fact, the ECHR itself imposes a positive obligation on the Government to lift the time bar that would otherwise prevent prosecutions for this offence.
More recently, a case in the European Court of Human Rights called Antia reported in 2020. It is not particularly easy to follow but the interpretation on the court’s website suggests that the retrospective removal of a bar to prosecution might be in breach of Article 7 of the convention. The question is: can you retrospectively adversely affect the rights of defendants to give effect to the rights of victims? I accept that Antia is not conclusive as the offence was against the state, which cannot itself be a victim in convention law.
I hope it is clear from what I have said, if noble Lords are still with me on this, that this is a question involving complex but important legal issues—and one on which, it is fair to say, a variety of legal views can reasonably be held. Bearing in mind, therefore, that we are on Report, the Government’s position is that this issue would benefit from further consideration outside the time constraints of this Bill. I will ensure that it is given suitable consideration; I am happy to continue the discussions with the noble Baroness and Dr Rogers. On the understanding that it will be reconsidered and continually considered, I urge the noble Baroness, Lady Kennedy, to withdraw her amendment.