Francis Bennion - 3rd Briefing on Sexual Offences Act 2003

We cannot arrive at a solution to the problem of clause 14 unless we first get to understand exactly what in detail clause 14 [section13] provides (and there is a good deal of detail). We do not receive much help from the wording of clause 14 itself. Its entire official text, as set out in the Sexual Offences Bill brought from the House of Lords on 18 June 2003, is as follows.

(1) A person under 18 commits an offence if he does anything which would be an offence under any of sections 10 to 13 [9 to 12] if he were aged 18.

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.

This is the usual sort of impenetrable drafting practised by the UK Parliamentary Office. [23] I make no complaint about that. As a member of the Office I drafted in that way myself for many years. There are very good reasons for its complexity. When fully understood, it provides accuracy and certainty, both highly desirable attributes in this area. To be fully understood however, it must first be unravelled. That is what I propose to do in this chapter.

The official Notes on Clauses tell us that clause 14 [section13] has only one object.

Clause 14 [section13] makes it an offence for a person aged under 18 to do anything that would be an offence under any of clauses 10 to 13 [sections 9 to 12] if he were aged 18 or over. The purpose of this offence is to provide a lower penalty where the offender is aged under 18. [24]

This lower penalty is set out in subsection (2) of clause 14, which is straightforward. Subsection (1) of clause 14 is meaningless by itself. It requires us to look at clauses [25] 10 to 13 of the Bill, the official text of which is as follows.

Text of Clauses 10-13 [sections 9-12]

10 [9] Sexual activity with a child

(2) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.

11 [10] Causing or inciting a child to engage in sexual activity

(a) he intentionally causes or incites another person (B) to engage in an activity,

(2) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.

12 [11] Engaging in sexual activity in the presence of a child

(c) for the purpose of obtaining sexual gratification, he engages in it in the presence of another person (B), knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it, and

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 [10] years.

13 [12] Causing a child to watch a sexual act

(a) for the purpose of obtaining sexual gratification, he intentionally causes another person (B) to watch a third person engaging in an activity, or to look at a photograph or pseudo-photograph of any person engaging in an activity,

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.

Subsection (2) of these four clauses provides different penalties for each. Clause 14 lays down a uniform lower penalty under the four clauses where the offender is under 18. I am not now concerned with the penalty, but only with the nature of the offence. This is the same whatever the age of the offender, from age 10 upwards. [26] Accordingly I will not spend any more time on subsection (2) of Clauses 10-14, but will concentrate exclusively on subsection (1).

Limited version of Clauses 10-13 [sections 9-12] as applied by Clause 14 [section 13]

As we are not concerned with people who are over the age of consent (16) I will modify the provisions set out above to express the effect of Clause 14 [section 13] in relation only to the children we are concerned with, namely those in the age range 10 to 15. I will also introduce two changes to the official text, apart from the change involved in limiting the statement of the proposed law to the way it operates in relation to offenders aged under 16. The first change converts ‘he’ to ‘he or she’, reflecting the effect of the Interpretation Act 1978 s 6 [27] . The second change, adding the italicised words in the provisions set out below, gives expression to a necessary implication. [28] We see that there are not really four offences here but eight. I make no apology for spelling them all out, because our game here is elucidation and we need to concentrate.

Moreover that is not the end of the modifications we need to make. The next step in concentrating our microscope on the area of the proposed law with which we are now concerned is to introduce the element of consent. We are limiting ourselves to sex in the age range 10-15. However a further limitation is that we are only concerned with consensual acts. If a boy of 14 rapes a girl of 15 we accept that he should be treated as a criminal. But we do not accept that, as clause 14 [section 13] provides, they should both be treated as criminals if all they engage in is consensual kissing and sexual fondling, or what used to be known as petting. So I will alter the above clauses to deal with that limitation as well. Note that in all the tinkering involved in producing the following eight clauses I am not changing the effect of clause 14 overall. The reader must imagine them accompanied by another eight clauses (with which we are not concerned) which contain what we have taken out. Together, the sixteen clauses would reproduce in full precisely what clause 14 provides. All we are doing is examine a part of the effect of clause 14 without in any way altering it. [The material below does not reflect the changes noted above which were made before enactment.]

10A Consensual sexual activity with a child under 16 but 13 or over

10B Consensual sexual activity with a child under 13

11A Causing or inciting a child under 16 but 13 or over to engage in consensual sexual activity

(a) he or she intentionally causes or incites another person (B) to engage in an activity,

11B Causing or inciting a child under 13 to engage in consensual sexual activity

(a) he or she intentionally causes or incites another person (B) to engage in an activity,

12A Engaging in sexual activity in the presence of a consenting child under 16 but 13 or over

(c) for the purpose of obtaining sexual gratification, he or she engages in it in the presence of another person (B), knowing or believing that B is aware, or intending that B should be aware, that he or she is engaging in it,

(e) B is under 16 but 13 or over and A does not reasonably believe that B is 16 or over.

12B Engaging in sexual activity in the presence of a consenting child under 13

13A Causing a consenting child under 16 but 13 or over to watch a sexual act

(a) for the purpose of obtaining sexual gratification, he or she intentionally causes another person (B) to watch a third person engaging in an activity, or to look at a photograph or pseudo-photograph of any person engaging in an activity,

(d) B is under 16 but 13 or over and A does not reasonably believe that B is 16 or over.

13B Causing a consenting child under 13 to watch a sexual act

For short I shall call the legal effect of the above eight clauses combined ‘the limited effect of clause 14’ because it is, if I may repeat myself, that part of the overall effect of clause 14 with which we are exclusively concerned. I shall call the 10A and B offences ‘sexual activity with another child’, the 11A and B offences ‘causing or inciting’, the 12A and B offences ‘sexual activity in the presence of another child’, and the 13A and B offences ‘causing watching or looking’.

Meaning of ‘sexual’

All these provisions are expressed to apply only where the activity in question is ‘sexual’. What does this mean? The difficulties are examined in chapter 8 below.

[23] Despite the wish of the Home Office Review to ‘recommend a law that is clear and comprehensible to the ordinary citizen’: Setting the Boundaries 1.3.5. This is a vain hope, which only a body unacquainted with the workings of statute law could have been innocent enough to put forward.

[24] Notes on Clauses, para 18. For the Notes on Clauses concerning clauses 10-14 see chapter 3 below.

[25] A provision in a Bill which is called a ‘clause’ becomes a ‘section’ once the Bill receives royal assent. Confusingly, a Bill while still going through Parliament refers to its provisions as ‘sections’ rather than ‘clauses’. This is to avoid changing references on royal assent.

[26] The general law provides that a child below the age of 10 can have no criminal liability: see p 69 below.

[27] This states: ‘In any Act, unless the contrary intention appears, words importing the masculine include the feminine’.

[28] For the use of implication in Acts of Parliament see F A R Bennion, Statutory Interpretation (4th edn 2002) ss 172-175.