The Home Office Memorandum contained the
following paragraphs.
2. We should like
as a background to our response to draw the Committee’s attention
to the fact that the Government is not changing the law by
including consensual sexual kissing between two 12 year olds
within the scope of the criminal law. Both would currently
commit an offence of indecent assault (sections 14 and 15
of the Sexual Offences Act 1956 (the 1956 Act)), since a child
under 16 cannot consent to an indecent assault. The Government
is not, however, aware of any prosecutions concerning consensual
sexual kissing by 12 year olds.
3. The legitimate
aim under Article 8.2 served by clause 6 of the Bill is principally
the protection of the rights and freedoms of others. The Government
considers that children under 13 have the right to be protected
from all forms of sexual activity. Arguably, clause 6 also
serves the legitimate aim of protecting morality, but the
Government’s principal concern is child protection. It may
be that some children close to the age of 13 have the maturity
to understand the nature of sexual activity but there will
be many other children who do not, and the Government considers
that the balance is correctly struck by protecting the vulnerable.
This applies irrespective of the age of the other participant
- research indicates that adolescent sex offenders probably
account for up to a third of all sex crime and many of these
will offend against others of a similar age.
4. In addition,
by removing the need to prove lack of consent, clause 6 serves
the purpose of protecting children under 13 from cross-examination
about sexual issues. Without clause 6, the prosecution would
have to prove lack of consent in a case concerning the non-consensual
sexual assault of a child under 13. The evidence is that children
of this age who face cross-examination about consent inevitably
involving cross-examination about their sexual knowledge and
experience can be severely damaged as a result.
5. Of course,
any age limit is to some extent arbitrary, but the Government
considers that the age of 13 is the right place to draw the
line and notes that it is well-precedented as a threshold
in sex offence legislation. The offence of sexual intercourse
with a girl under 13 (section 5 of the 1956 Act) carries a
maximum penalty of life imprisonment whereas the offence of
sexual intercourse with a girl between 13 and 16 (section
6 of the 1956 Act) carries a maximum penalty of two years’
imprisonment. Although the age of the onset of puberty is
variable, Setting the Boundaries commented that the
thirteenth birthday was recognised by society as the entry
to teenage years and is therefore a key milestone in the child’s
passage towards adolescence and eventual adulthood.
6. The Government
considers the discretion of the prosecutor is key to ensuring
that clause 6 is used proportionately and the Government intends
to make this clear during the passage of the Bill in Parliament.
In exercising his discretion as to whether or not to prosecute
under clause 6, the prosecutor must always consider whether
there is a public interest in prosecuting and must also, by
virtue of the Human Rights Act 1998, consider whether a prosecution
would be compatible with Article 8. Even where the sexual
activity in question is abusive, the Government considers
that a prosecution will in many cases fail these tests since
providing the offender with support and care through social
services may well be more appropriate. This was the line taken
in Setting the Boundaries and it received wide agreement
on all sides. Where the sexual activity is genuinely consensual,
is low level sexual activity and involves two children close
to the age of 13 and of a similar age to each other, the Government
expects that, even where this comes to the attention of the
authorities, it is almost inconceivable that it will be in
the public interest to bring a prosecution.
7. In looking
at the proportionality of its proposals, the Government considered
whether to try to make exceptions to the prohibitions, or
to formulate the law in a more targeted way. It took the view
that in dealing with an area of law concerning children as
potential victims of abuse, their protection (including their
rights under the ECHR) should be seen as paramount. Any approach
to dividing the law in this area brought anomalies and could
leave gaps, weakening the present protections afforded to
children. It could also be over complex and lose the simplicity
necessary for the law to be understood and workable. For example,
if it is acceptable in law for two 12 year olds to kiss sexually,
what about a 16 year old with a 12 year old? Where should
the line be drawn in defining acceptable activities? If sexual
kissing is acceptable, what about masturbation? Should there
be a distinction according to whether the masturbation is
or is not through clothing? All such activity could be potentially
abusive even if ostensibly consensual and even if done between
children of similar age. The Government therefore believes
the right course is to maintain the existing prohibitions,
offering maximum protection to children, but with prosecutorial
discretion allowed and indeed expected.
8. The Government
considers that everything said above applies equally to the
situation where a child of 13 engages in consensual sexual
kissing with a child of 12.
The JCHR report
The JCHR’s report in the light of the Home
Office Memorandum contained the following paragraphs.
2.3 Imposing or threatening criminal sanctions
on people who kiss consensually is an interference with their
right to respect for their private lives under ECHR Article
8.1. It requires justification under Article 8.2, which requires
any interference with the right to be in accordance with the
law, and necessary in a democratic society for one of the
legitimate aims listed in Article 8.2. To be ‘necessary in
a democratic society’, an interference must be a proportionate
response to a pressing social need. We accept that the interference
would be adequately in accordance with the law. The questions
are (a) whether the interference serves a legitimate aim,
(b) whether there is a pressing social need for the interference,
and (c) whether the interference is proportionate to the aim
pursued.
2.4 Legitimate aim. The Government
says that its primary concern is child protection. (It also
mentions the protection of morals as a subsidiary objective,
but in our view it is unlikely to justify the provisions if
they are not justified by child protection considerations.)
Children under 13 have the right to be protected from all
forms of sexual activity, regardless of the age of the other
party. Removing the need to prove lack of consent also protects
children under 13 from being cross-examined about their sexual
conduct. While age limits are to some extent arbitrary, there
are both statutory precedents and social acceptance for treating
the age of 13, when a child enters teenage years, as an appropriate
dividing point.
2.5 Protecting the rights of others is a
legitimate aim under Article 8.2, and we accept that so far
as children are specially vulnerable to sexual abuse their
rights may be protected by special provision about sexual
touching.
2.6 Pressing social need. The Government
does not deal expressly with this issue, but we consider that
there is a pressing social need to protect children against
sexual touching in some circumstances, even if measures to
provide this protection interfere to some extent with the
right to respect for private life.
2.7 Proportionality. The next question
is whether this particular provision is proportionate to the
pressing social need. Interference with a right may be disproportionate
if, for example, it applies to more cases than necessary,
or it interferes more than necessary in those cases to which
it properly applies, or it deprives people of the very essence
of the right. By its nature, an assessment of proportionality
calls for judgment about the best way to balance competing
interests: it calls for common sense, an understanding of
the impact of the measures in different situations, and an
idea of the relative importance of different matters.
2.8 The Government’s view is that a total
prohibition on all sexual touching, including kissing, of
or by under-13s is justified because:
— many children
lack the maturity to understand the nature of sexual activity,
and these vulnerable children need to be protected;
— they need to
be protected against young people as against old: research
(which the memorandum does not identify) is said to indicate
that ‘adolescent sex offenders probably account for
up to a third of all sex crime and many of these will
offend against others of a similar age’;
— the prosecutor
would have a discretion, and that is the key to ensuring that
clause 6 would be used proportionately, as the prosecutor
would have to consider whether there is a public interest
in prosecuting, and consider whether prosecution would be
compatible with Article 8. It will often not be appropriate
to prosecute if provision of support and care through social
services would be a more satisfactory way of proceeding;
— in a field where
the protection of children should be the paramount consideration,
attempting to formulate the law in a more targeted way could
produce gaps and anomalies, as well as losing simplicity.
2.9 The Government’s position has the merit
of convenience, and facilitates simple drafting of the Bill.
It avoids leaving gaps in the protection offered to vulnerable
children through under-inclusive legislation.
2.10 On the other hand, we find it unpersuasive
as an argument on proportionality. Proposition (a) in paragraph
17 above is unexceptionable, but it does not follow, as suggested
in proposition (d), that a blanket ban on all sexual touching
is justified. It is of the essence of Article 8.2 that one
should attempt to target legislation so that it reflects a
proper balance between the rights and interests affected by
it. The Government does not suggest that it would be impossible
to do this, but it prefers not to try, in case the legislation
fails to cover every conceivable case in which one might want
to prosecute. Instead of striking a proper balance, this approach
in effect refuses to take on the task, leaving it to the discretion
of prosecutors to make sure that the legislation does not
systematically violate people’s rights. As we have frequently
said in earlier reports, official discretion should not in
general be regarded as offering satisfactory protection against
violation of rights.
2.11 This is particularly important in the
context of the creation of criminal liability. It is a fundamental
principle of the uncodified constitution, as well as of human
rights law, that in a free society legislation imposing criminal
liability must be justifiable, and that criminal offences
must so far as possible be framed in such a way as to impose
liability only when doing so is justifiable. That allows people
to depend on the rule of law, with its emphasis on the legal
enforceability of legal protections for rights, to safeguard
them against unjustified imposition of criminal liability.
Creating catch-all offences, and then relying on the prosecutor's
discretion to sort things out satisfactorily, undermines this.
It leaves prosecutors to do the job that Parliament should
be doing, and gives them discretion to prosecute (or not to
prosecute) people who ought never to have been within the
scope of criminal liability in the first place.
2.12 Even if we trust prosecutors to approach
the use of their discretion properly, it would not adequately
protect people against infringements of their rights resulting
from the application of the legislation. Children may be arrested
for fairly trivial offences. They may be subjected to reprimands
and final warnings under the provisions of sections 65 and
66 of the Crime and Disorder Act 1998 (as amended by section
56 of the Criminal Justice and Court Services Act 2000). If
they receive a final warning for a sexual offence, they are
automatically required to register under the Sex Offenders
Act 1997. That could blight their lives. All this can happen
in cases which do not lead to a prosecution. The discretion
of the prosecutor does not offer any protection against rights
being violated as a consequence of the application of sexual
offences legislation. There are reported examples of cases
in which relatively minor forms of indecent behaviour have
produced these consequences for children.[Footnote 13:
See, e.g., R. (U.) v. Commissioner of Police of the Metropolis;
R. (R.) v. Durham Constabulary [2002] EWHC Admin 2486, [2003]
1 WLR 897, DC.] The position would be far more dangerous under
clause 6, which contains no requirement for the touching to
have been indecent and takes no account of the consent of
the parties.
2.13 So far as proposition (b) in paragraph
17 above is relevant to the question of proportionality, it
is so vague and speculative that it seems to us to add little,
if any, weight to the Government's contentions. The Government
does not give details about the research on which it relies.
This makes it difficult for us to assess its significance
for the proportionality of the proposed measures.
2.14 Finally, the Government claims that
the Bill would not be imposing any new criminal liability.
The Government first asserts that it is not changing the law:
it claims that two 12-year-olds consensually kissing each
other would currently commit the offence of indecent assault,[Footnote
15: Sexual Offences Act 1956 ss 14 & 15.] because
a child under the age of 16 cannot consent to an indecent
assault. We disagree, for three distinct but related reasons.
2.15 First, to constitute indecent assault,
conduct must be both indecent and an assault. Touching which
does not cause injury is not an assault if it is consensual,
and a child can consent to touching of that kind, as she can
(from a relatively early age) to certain kinds of medical
treatment. Even if kissing could be regarded as indecent,
and as capable of amounting to an assault, it is not be an
assault if the child genuinely consents.
2.16 Secondly, kissing is not in itself generally
indecent. Kissing may become indecent for legal purposes in
some circumstances, for example if it is combined with a suggestion
of sexual intercourse,[Footnote 17: R. v. Leeson (1968)
52 Cr. App. R. 185 (kissing on face and shoulders with suggestion
of sexual intercourse) ] or perhaps if it is carried
out to gratify some indecent urge or perversion.[Footnote
18: R. v. Court [1989] AC 28, HL, where however the act
was not consensual kissing, but non-consensual smacking to
gratify the defendant's buttock-fetish; cp R. v. George [1956]
Crim. LR 52, where theft of a shoe to gratify a shoe-fetish
was held not to make the theft into indecent assault.] But
simple kissing, even if it constituted an assault (for example,
because there was no consent), would not be indecent assault.
2.17 Thirdly, the definition of assault for
the purpose of the offence of indecent assault may be limited
to hostile or coercive acts. There were suggestions in the
House of Lords in R. v. Brown (Anthony)[1994] 1 AC
212 that, in the context of the offence of indecent assault
under sections 14 and 15 of the Sexual Offences Act 1956,
an act does not amount to an assault unless it involves some
element of hostility. This is not universally accepted, and
the late Professor Sir John Smith QC claimed that the House
of Lords went on to treat so many activities as hostile that
it deprived the word of any meaning.[Footnote 20: Smith
and Hogan's Criminal Law 10th ed., pp. 411-2, 484 ] Nevertheless,
if, under sections 14 and 15 of the 1956 Act, there ‘must
be some compulsion, hostile act, threat or threatening gesture
to constitute an assault’, and the child must be reluctant
to accept it,[Footnote 21: Perry Hill and Karen Fletcher-Rogers,
Sexually Related Offences (London: Sweet & Maxwell, 1997),
pp. 171-2, paras. 6-25-6-26, citing DPP v. Rogers [1953] Crim.
LR 644 and Williams v. Gibbs [1958] Crim LR 127. Cp. the different
view of the later Professor Sir John Smith QC, Smith and Hogan's
Criminal Law 10th ed. (London: Butterworths, 2002), pp. 411,
412, 484 ] consensual kissing would never constitute
an assault, and so could never amount to an indecent assault
however indecent were the surrounding circumstances.
2.18 For all these reasons, but particularly
on the first two grounds, we consider that the Government
is wrong to suggest that consensual kissing between people
under the age of 16 is currently a criminal offence. This
could explain why, as the Government says, there is no recorded
case of sections 14 and 15 being used in respect of 12-year-olds
consensually kissing.
2.19 Even if the Government's view of the
current law is correct, and the Bill would not alter the criminal
liability of children, it would be important to subject clause
6 to the same level of human rights scrutiny as other provisions.
When the present law of indecent assault was enacted in 1956,
the ECHR was in its infancy, and there was no case-law from
the Strasbourg Court explaining its requirements. The Committee
should seek to ensure that the new legislation will be Convention-compliant,
even if the previous legislation did not produce markedly
narrower criminal liability.
2.20 In our view, the Government has not
established that the impact of clause 6 of the Sexual Offences
Bill, imposing liability on children under 13 for all sexual
touching whether or not there is consent and whether or not
it can properly be regarded as indecent, would be proportionate
to a legitimate aim so as to be justifiable under ECHR Article
8.2. The offence seems to us to be over-broad, to impose liability
in a way that is not adequately tailored to the legitimate
objective, to interfere with the right to respect for private
life more than is necessary for that purpose in a democratic
society, and to contain insufficient safeguards against violation
of the rights. We draw this matter to the attention of each
House.
