Until this week, when the new Sexual Offences Act 2003 comes into force,
offences against children have been dealt with by a rather muddled body of
law spread over several different statutes. The new Act will bring these
within one pair of covers and to that extent at least the reform is welcome.
Like the rest of the Act, however, it seems to me that there is much about
the new set of child and family offences that is deeply unsatisfactory. The
new offences are too many, and there is needless overlap between them; they
are badly drafted in a style that combines an excess of detail on minor
matters with a failure to deal with certain major ones.
Most seriously, the new law is exceptionally heavy-handed. It ratchets
culpability requirements down, building grave and stigmatic offences on
negligence or even strict liability. And more fundamentally, it renders
theoretically punishable with severe penalties (2, 5, 10 and 14 years, and
even life) a range of behaviour for which it is inconceivable that anyone
will in practice be prosecuted - and for which it would be scandalous if
they were.
That a major part of English criminal law has just been reconstructed on
these singularly unappealing lines raises serious doubts about whether this
country will ever achieve the rational criminal code that the Government
supposedly desires as long as criminal law reform remains a matter for the
Home Office, in the repressive womb of which the new law was conceived.
As an example, pornography, is defined as the making of an indecent image
- and no mention is made in this part of the definition either of payment,
or the intended dissemination of the pornographic image to others.
Thus, on the face of it, a young man whose 17-year-old girlfriend lets
him take a picture of her in the nude for him to keep in his wallet or frame
for his bedside table is potentially guilty of an offence and theoretically
liable to 14 years' imprisonment.
The Act sweeps away the existing law on sexual acts with minors
(including incest), child prostitution, and child abduction (insofar as this
was contained in the Sexual Offences Act 1956). It leaves the existing law
on child pornography in place, which continues to be covered by the
Protection of Children Act 1978 - although it extends its reach by
redefining the "children'' whose indecent images it is an offence to possess
as persons under 18, instead of 16, as heretofore.
The offences it abolishes are all replaced, except for the abduction
offences in the Sexual Offences Act 1956: these were already duplicated by
the Child Abduction Act 1984, which remains in force.
The new offences in the Sexual Offences Act 2003 are more numerous than
those they replace - and extend, in many cases, the range of behaviour that
is criminal. In broad terms, nothing that was previously criminal has ceased
to be; much is made criminal that previously was not, and most of it is made
more severely punishable. The age of consent, as under the existing law,
remains 16. But the effect of this is watered down by a range of provisions
that punish consensual sexual acts where the willing participant is older.
Thus, the Act contains a group of new "familial child sex offences'' that
criminalise all sexual acts where one of the participants was under 18 and
the other was any of a wide range of relatives or carers; and, further
expanding on the existing law of incest, the new Act also contains an
offence called "sex with an adult relative'' that prohibits a range of
sexual acts between consenting adults far wider than those that fell within
the old offence.
If readers feel that the general criticisms of the new law in the opening
paragraph of this article are justified, they might like to reflect on how
it was that such a flawed piece of legislation came to be enacted.
At a purely technical level, I believe that many of the faults in this
Act are due to the fact that the Home Office followed its usual practice of
preparing a Bill "in house''. The draft of this became public only when the
Minister introduced it in Parliament, under instructions to fight off
amendments.
In the past, it has been the usual practice for the Lord Chancellor's
Department when proposing law reform to produce a Draft Bill, on which
comment is invited from the public, the judges and the legal profession. If
the Home Office were to adopt this sensible practice, the technical quality
of the legislation it promotes would be much improved.
The oppressive content of the new law largely stems, I believe, from the
fact that those responsible for framing it have no intelligible philosophy
as to what sort of behaviour the criminal law should and should not
prohibit. They see nothing wrong in principle with enacting laws that make
theoretically illegal whole swathes of human activity that is blameless or
harmless, leaving it to the discretion of the police and other authorities
to decide whom to prosecute, and for what.
But a crucial factor clearly is that, despite conducting "extensive
consultations'' and a formal review that consumed £17,500 of public money on
research and £31,025 on conferences, the Home Office devised the new law
without troubling to obtain or consider any solid information about what is
normal in the sex lives of children and young persons.
The review document also contains the following disarming statement: "We
also tried to test the opinion of some young people and, at a fairly late
stage in the review, had discussions with some Year 10 and Year 11 pupils
(aged between 14 and 16) at one school (sadly lack of time meant we could
not undertake a wider consultation).''
John Spencer QC is professor of law at Cambridge University. This is
an edited version of an article published in May's edition of the 'Criminal
Law Review'
