AD HOC COMMITTEE
OFFICIAL REPORT
(Hansard)
Draft Sexual Offences (NI) Order 2007
8 January 2008
Members present for all or part of the proceedings:
Dr Stephen Farry (Chairperson)
Mr Mickey Brady
Rev Dr Robert Coulter
Mrs Dolores Kelly
Mr John McCallister
Mr Declan O’Loan
Ms Sue Ramsey
Mr Alastair Ross
Mr Jim Wells
Witnesses:
Mr Avery Bowser )
Mr Martin Crummey ) National Society for the Prevention of Cruelty to Children
Mr Colin Reid )
Ms Margaret Kelly ) Barnardo’s
Ms Jacqui Montgomery-Devlin )
The Chairperson (Dr Farry):
I welcome Colin Reid, Martin Crummey and Avery Bowser from the National Society for the Prevention of Cruelty to Children (NSPCC), who have provided the Committee with a written submission.
Mr Martin Crummey (National Society for the Prevention of Cruelty to Children):
I thank the Committee for the invitation to present in more detail some of the issues that we have been involved in regarding the draft sexual offences Order. I am the director of NSPCC in Northern Ireland, Avery Bowser is assistant director regarding services for children, and Colin Reid is our policy and public affairs manager.
NSPCC welcomes this draft legislation and is supportive of many of its provisions. As many of you will be aware, NSPCC has campaigned to ensure that children and young people in Northern Ireland receive the same level of protection that children in England and Wales have under the Sexual Offences Act 2003. However, we do have some concerns about aspects of the draft Order and we welcome the opportunity to elaborate on those concerns. We believe that addressing these in the legislation will further enhance the protection and safety of young people in Northern Ireland.
We have some concern about the relationship between this draft legislation and section 5 of the Criminal Law Act (Northern Ireland) 1967, which deals with the requirement to report crimes. We also believe that there is a need for policy and guidance to ensure that children can seek help in relation to sexual-health matters. We are concerned about the exclusion of sports coaches from the articles relating to the abuse of trust. Furthermore, we believe that amendments are required regarding the sentencing tariffs for certain provisions. Finally, we are concerned about the absence of any reference to children and young people who sexually harm others.
Mr Colin Reid (National Society for the Prevention of Cruelty to Children):
I refer the Committee to paragraph 7 of the society’s written submission. I want to deal with two elements of the sexual activity of children about which the society is particularly concerned.
This legislation was introduced at Westminster as the Sexual Offences Act 2003. We are effectively getting sections 1 to 14 of that Act within this draft Order, as well as a codification of all sexual offences law. The UK Government tried to work out how they should deal with the issue of young children engaged in consensual sexual activity. They introduced a scheme that lowered the tariff and brought all children into the scheme; however, they then ensured that the Crown Prosecution Service had clear guidance to ensure that consensual sexual activity between older children would never be prosecuted. If Members refer to article 20 of the draft Order, they will see that that is how it is being dealt with here.
The problem is that section 5 of the Criminal Law Act (Northern Ireland) 1967 requires the reporting of an arrestable offence. The way in which article 20 of the draft Order works is that where two young children engage in consensual sexual activity of any description, each is both the victim and the perpetrator. In many circumstances, it will be completely inappropriate to prosecute their offence, but the effect of having the 1967 Act in the background is that it creates a duty to report an arrestable offence to the police. At its most extreme, a teacher who sees two children kissing behind the bike sheds is, technically, under a duty to report. I use that as an extreme example.
We raised that issue with the Northern Ireland Office; we said that we were very concerned about section 5 of the 1967 Act and that we would be looking for very clear guidance for both the police and public prosecutors in dealing with that sort of case, once the Order has become law. The police are also concerned: it places them in a position of having to investigate innocent activity — if I may put it like that — that will clearly not be prosecuted. Therefore, we want to see some movement; we think that it is impossible to implement this provision without tweaking the existing legislation.
Under the draft Order there is greater protection for children who are very young — under 13 years of age. The removal of the consent defence in such cases is a good thing. For any individual to have sex with a child under 13 will be rape. However, there is a balance: as in England, there are proposals to allow doctors and health visitors to provide contraceptive advice. The balance is between ensuring that children get health treatment when they need it, and ensuring that they are protected. We are concerned that the Order has been drafted almost in a vacuum. No discussions have been held between Government Departments as to how it should be implemented, and there is no clear understanding in Departments about how it will work. For example, the Department of Health has said that children under 14 years of age who are seeking contraceptive advice should normally be reported to social services. Section 5 of the 1967 Act is the rationale for that. We understand why that might be the case: however, our concern is that it will stop children seeking access to contraceptive advice, which will not help to deal with the high teenage pregnancy rate.
Therefore, the balance in the legislation needs to be addressed. We have said to the NIO that there is a need for a round-table discussion between the various Departments. On the foot of this legislation, we need clear guidance for all professionals working in the area, so that they know how to provide treatment and advice, and, more importantly, so that they refer children to social services for protection when that is necessary. We are concerned that there have been very few referrals for very young children.
The third issue that we want to raise relates to abuse of trust. The draft Order repeals and re-enacts provisions that are in place. It provides that the Secretary of State can extend the abuse of trust provisions to include other professions. At present, a residential worker in a children’s home who has consensual sexual relations with a 17-year-old child is breaking the law. It is a serious criminal offence, notwithstanding the fact of consent. The intention is to protect children who, in certain circumstances, would be vulnerable in such a case.
We have said repeatedly that in Northern Ireland — and nationally — we would like to see sports coaches brought under the definition of abuse of trust. There are a substantial number of examples, both in Northern Ireland and nationally, of coaches who have abused the position of trust that they have by virtue of the nature of their job and had relationships with vulnerable children over the age of 16. We have recommended to NIO that the definition of abuse of trust be extended to sports coaches, and we recommend that measure to the Committee.
Mr Avery Bowser (National Society for the Prevention of Cruelty to Children):
Paragraph 14 of our submission also deals with children who sexually harm other children and, in some cases, adults. The draft Order defines sexual relationships between children under the age of 18. Therefore, we were particularly disappointed that neither the consultation nor the Order considered any aspect of sexually harmful behaviour by children, and how that should be dealt with. Such consideration is particularly important because research clearly shows that a large number of sex offenders begin offending when they are children. The research also shows that interventions at that age are important and effective.
It should also be remembered that a large number of the children who engage in sexually harmful behaviour are themselves victims to start with. A host of treatment issues can be considered for those children, in terms of both their own victim experience and effective treatment to prevent them from continuing to offend into adulthood. The arrangements in the draft Order are a sharp contrast with the arrangements under multi-agency sex offender risk assessment and management (MASRAM), where there is much clearer guidance and much more money is available to deal with those issues.
We also wish to highlight the role of the Public Prosecution Service. Mr Reid mentioned the way that the CPS had issued guidance in England, particularly considering the long-term consequences of conviction on a 14-year-old or a 15-year-old when an offence is scheduled. In our response to the consultation, we made two specific recommendations to NIO in that area.
First, we recommended that the proposed Order contain provision for the Secretary of State to issue mandatory guidance in the form of a prosecution protocol setting out the processes and considerations for making informed prosecution decisions. That should also include the use of diversionary youth conferencing arrangements, which are unique to Northern Ireland. In some respects, there is tension between the road that we have gone down of diverting all young offenders, including those who may have committed sex offences, through the option of youth conferencing. The draft Order has not addressed that tension in any way.
Secondly, the guidance from the Department of Health, Social Services and Public Safety (DHSSPS) on dealing with sexually harmful behaviour is fairly weak. The co-ordination between agencies is often poor, and we would like work to be done on the revision of ‘Co-operating to Safeguard Children’ to beef up that area substantially.
Finally, we have spotted a slight sentencing anomaly in articles 37 to 40 of the draft Order. It creates the unusual position that a person who paid for sex with a child under 13 would potentially be liable to life imprisonment, but the person who incited and controlled that act through child prostitution would only be liable to a maximum sentence of 14 years. That is a bit odd, particularly if it involves a child of, say, 10 years old, who has been controlled in a situation of prostitution. The Committee might want to consider that, and we have urged the NIO to consider that issue. Thank you for your time.
Mr Wells:
That has been very useful. You have teased out some important but obscure issues that would not have been obvious to everyone who read the legislation. I presume that you have had contact with the NIO and raised those issues with it?
Mr Reid:
We have had discussions with the NIO. We were to meet Minister Goggins, but he was diverted elsewhere and we met his officials. The NIO cannot introduce legislation in the absence of discussions with other Government Departments about its implementation. The responsibility for implementing such legislation will lie mainly with the Department of Health.
Mr Wells:
During that consultation, did anyone say, "It’s a fair cop, we did not spot that; we will change it", or will it require a bit of effort by this Committee to try to get those changes made?
Mr Reid:
Your second point is well made, Mr Wells. We have asked repeatedly for a round-table discussion between all the players in this area, particularly on how we deal with young children who seek contraceptive advice. There is no commonality of views between Departments at the moment.
Mr Wells:
There is an obvious disparity between the prison term handed down to a person who promotes sex with a 13-year-old and that given to a person involved in such an offence. That must be a mistake.
Mr Reid:
Those sentences follow from what is in the Home Office’s Sexual Offences Act 2003. From the discussions that I have had with NIO officials, it is my understanding that they are interested in the Committee’s view on that point, and that if it is made to them, they will go back to the Home Office about it.
Mr O’Loan:
I have a question about children who sexually harm other children. You referred to the situation in which sexual activity between children aged between 13 and 16 is, prima facie, an offence under this legislation, and you illustrated the problems around the obligation to declare that activity if it is observed by someone in a position of authority. We asked the NIO officials why that kind of sexual activity remained an offence, and the reply was that there was no form of words that would exclude that kind of activity, which no one wants to pursue through the courts, while also guarding against other cases in which harm is being done to a child. Can you explain in more detail why that does not give adequate protection to children?
Mr Reid:
You are quite correct. That matter was the subject of a lengthy debate in Parliament when the equivalent provisions were scrutinised at Westminster. The measure is there to protect children when they need to be protected, but the way in which the threshold has been lowered scoops up all children, whether victims or perpetrators. A large percentage of those children will be neither victim nor perpetrator, because it is normal, consensual activity between children. There was a lengthy debate in Parliament about how to deal with that. This scheme does protect children, but there is an added problem in Northern Ireland around section 5 of the 1967 Act, which creates the requirement to report. The police have said that they have to investigate such matters, even though they know that no prosecutions are going to result.
Mr O’Loan:
Are the guidelines not the secret here? The guidelines could rule out prosecutions where common sense dictates otherwise, but provide that, if there is an indication that harm has been done to a child, the legislation provides the remedy.
Mr Reid:
That is correct. The explanatory document that accompanies the draft legislation shows that that would be the case. However, that relates to the Public Prosecution Service. Our concern is what happens prior to getting to that situation. The police have told us that they would still feel duty bound to investigate.
Mr Bowser:
From a practice perspective, social workers, GPs, teachers and police officers discuss such cases every day. In my own experience from years ago, we would have discussed situations in which children were clearly engaged in sexual activity, and we would have had to come to a judgement about whether such activity was harmful or exploitative, or experimentation. This legislation is quite a blunt instrument. Our concern is, as Mr Reid has said, that all the relevant Departments should be involved. It is not just a criminal justice solution; the guidance must be in place so that everyone is working in the same direction.
Mr O’Loan:
The Committee’s primary focus is on the legislation and whether it requires changes. That will throw up other issues on which we will seek advice from other agencies. Let us be clear: are you saying that this legislation requires some changes, or are you saying that broader advice must be given to the relevant bodies on how to deal with this issue?
Mr Reid:
The NSPCC thinks that the proposed legislation cannot be implemented in its present form The Department of Health and the police must provide guidance on how to deal with the matter. We must ensure that section 5 of the 1967 Act does not apply to this particular provision, because of the problems that it causes.
Ms S Ramsey:
At the Committee’s last meeting, prior to the Christmas break, we had a useful evidence session with representatives from the NIO. I was struck by a number of issues at that meeting. First of all, I agree totally with Mr Reid that there is a lack of joined-up thinking. Although the NIO is outside the remit of the Assembly, nothing can be done with regard to a number of those issues without the assistance of the Departments of Health and Education. At that evidence session, it was agreed that the NIO would return to the Committee with answers to specific questions. It would be useful to get those answers as quickly as possible.
When the draft strategy was first announced, there was a press release saying that the NIO had worked with the NSPCC and Barnardo’s. Someone mentioned that in a radio interview. If we want to get the matter right, we should get it right from the start. Can Mr Reid give any reasons why the NIO is not taking the suggestions of the NSPCC and Barnardo’s on board? He has highlighted the fact that, for example, a person who controls the exploitation of a 10-year-old stands to receive a lesser sentence than someone who has actually paid to take part in it. That is a big issue.
One of the issues that we raised at the last meeting was that, for example, if two 13-year-olds are involved in sexual activity, then each is both victim and perpetrator. The Committee is concerned that the PSNI will be caught in the middle of all of that because, if a report is made, the PSNI view it as a crime to which it must respond. In the case of the two 13-year-olds, each can report a crime. Does Mr Reid have any idea, or can the Committee find out, where that matter sits at present? The Committee’s deadline is only a few weeks away. I am concerned that when we reach that deadline there will have been no progress on the matter.
The Committee Clerk:
The NIO will return to the Committee to make a presentation next week. I understand that representatives from the NIO are present at today’s meeting, so we may be able to get answers to some of the questions before next week. That matter is in train.
Mr Reid:
We have said nothing today that we have not already said to the NIO. We had a discussion and, again, raised the need for cross-departmental meetings, and meetings with other stakeholders, about the implementation of the proposed legislation.
Mrs D Kelly:
Mr Reid’s presentation was most helpful. There may be an opportunity to impact on the cycle of abuse; I am interested in the NSPCC’s comments on the lack of services for dealing with child sex offenders who may continue to offend in their adulthood. In what way does the NSPCC envisage the legislation being implemented, or improved, in order to help prevent that cycle of abuse? How would those services be delivered?
Mr Bowser:
The important issue, for the NSPCC, is the prosecution protocol and joining up with the restorative elements that have been implemented in Northern Ireland and which are unique. We had problems with that one because of the success of the youth conferencing service. Previously, we had been in discussion with the NIO about what happens when one has to deal with sex offenders; it is not the same as doing restorative work with regard to burglary or car theft. I am conscious of Mr O’Loan’s comments about focusing on the legislation. However, there is a world outside of that, including, for example, the child protection, health and education elements. The guidance for prosecution, social services and education is not clear or robust enough for children who engage in sexually harmful behaviour. There are issues about availability of resources for that work.
The Department of Health, Social Services and Public Safety is in possession of research that would amplify the problems and suggest solutions, but it is currently sitting on a shelf waiting to be published, so we are caught. It would have been advantageous if any guidance that accompanied the legislation could have been much more explicit about this group of children, because the new offences that are created automatically push you into new ways of looking at those children.
Mr O’Loan:
There is the issue about whether persons who are in a position of trust, such as sports coaches, should be specifically named. There are references to people being involved in "training, supervising". Are they adequately captured under those words? There have been instances of people involved in sports coaching being guilty of abuse. It is a significant issue. I would be amazed if people could escape by saying that they were not in a position of trust.
Mr Reid:
When the Sexual Offences Act 2003 went through Westminster the Home Office was pushed to agree to a consultation on the issue of sports coaches, in particular. However, it went to great lengths not to do anything, and the consultation document is worded to let it out of having to do anything.
Mr O’Loan:
So sports coaches are not named specifically?
Mr Reid:
They are not named specifically.
Mr O’Loan:
I doubt if that would let them out.
Mr Reid:
On a consensual activity between a sports coach and a 16-year-old child they are exempted from the current legislation and also the proposed Order, and that is one of its weaknesses. Sports coaches should be brought within the definition of abuse of trust.
Ms S Ramsey:
What is the reason for not naming them?
Mr Reid:
My understanding is that the NIO claims that there is a difficulty around the definition of a sports coach. We have representatives from our Child Protection in Sport Unit here who deal with that issue. They work with sports in Northern Ireland and across the UK. There are now accredited coaching awards, so there are ways in which certain sports coaches could be brought under the definition of trust in the legislation.
Ms S Ramsey:
When we talk to the leading children’s charities they raise those issues, and my concern is: what is the NIO’s thinking in not including sports coaches? There are thousands of children and young people who are involved in sporting activities. We are trying to strengthen the legislation, and I do not see why, if there is an opportunity to do so, it should be blocked.
The Chairperson:
On that particular point, are there other areas of life where a more specific reference to a position of trust could be added to the legislation, or is it possible to word the legislation in such a way that other scenarios that we cannot foresee at the moment can be taken under its ambit?
Mr Reid:
The legislation is worded in such a way that the Secretary of State can extend the provisions.
The Chairperson:
Given that the NSPCC is primarily concerned with the protection of children, what is its position on the age of consent? That is probably going to be one of the more difficult aspects of the legislation. There are obviously very different views in society on the best way forward.
Mr Reid:
The age of consent is a difficult issue, because sometimes it is more apparent than real. In Northern Ireland the age of consent is defined by what you cannot do as opposed to what you can, and it is not gender neutral. For example, if a 16-year-old boy has sex with a 14-year-old girl he is committing an unlawful carnal-knowledge offence, but if the boy is 14 and the girl 16, the boy is still committing the offence and the girl is not, if it is a consensual and not a forced act.
The age of consent has been largely changed by the 1985 Victoria Gillick case, which brought out the Fraser guidelines that prescribes, amongst other things, the competence of children to receive advice about contraceptives. Therefore, the age of consent in Northern Ireland is not necessarily what it seems.
Our policy position on the issue is that we supportive of it. Having a different age of consent in Northern Ireland compared to other parts of the UK has caused some difficulties. Northern Ireland has a high rate of teenage pregnancy, and there have been few prosecutions for unlawful carnal knowledge. On balance, the draft Order offers greater protection for children under the age of 16, and it is right and appropriate that children in this jurisdiction should have the same rights as children in other parts of the UK.
The Chairperson:
Is there any evidence of people being held back from accessing advice due to a difference between the age of consent here and in Great Britain?
Mr Crummey:
The issue for people, particularly children, seeking advice on sexual-health matters is confidentiality. We are currently considering how children might be given what we describe as "confidential space" in order to help them make decisions that are in their best interests. Rather than feeling the need to respond to a crime by immediately lifting the phone without consulting or bringing the child along, we believe that such actions could add to the child’s abusive situation because the system would have become abusive to the child. If children feel that as soon as they ask for advice or disclose something that something awful will happen to them, we are fearful that they will stop seeking advice. Therefore, we support any measures that will provide children with opportunities to do so regardless of the environment in which they find themselves.
Mrs D Kelly:
The age of consent will be one of the most emotive debates pertaining to the proposed legislation. If I understand you correctly, the argument for the proposed change to the age of consent is twofold. The first part relates to the circumstances in which charges or prosecutions might be brought, and the other concerns access to contraception and health advice. That is how I distil the argument concerning the proposed changes to the age of consent.
Although the UK’s age of consent is lower than in many other European countries, the UK continues to have amongst the highest rate of teenage pregnancy. What is your view on the success or otherwise of the lowering of the age of consent in Britain and its impact on teenage pregnancy?
Mr Reid:
We consider that the age of consent is slightly a side issue. Despite having a higher age of consent than in other parts of the UK, we have a high rate of teenage pregnancy. It is important to ensure that children get appropriate sexual-health advice, which may be to abstain from sexual activity until they are old enough to appreciate what they are doing or, if they are already engaging in sexual activity, support in order to ensure that their other needs are met. We will only be able to lower the current teenage pregnancy rate through a public-health approach.
Mr Crummey:
It is useful to continue to consider abusive and consensual relationships separately. In which case, the age of consent does not really matter because an abusive relationship is a criminal offence and should be processed through that system. No matter what the age of consent or the ages of children in any consensual relationship, those two issues are still alive, and we are in the business of protecting children. As Colin said, the age of consent is somewhat of a side issue.
Mr Bowser:
We welcome many of the provisions in the draft Order because they will tidy up much of the legal confusion; however, some situations cannot be legislated out of. Although we may all think that it is not good for a 12-year-old and a 14-year-old to engage in sexual activity — and we are not advocating that — criminal legislation may not be the best way to deal with the situation. We can lull ourselves into a false sense of security if we think that a lovely bit of legislation on the statute books will sort out the problems. In reality, the proposed legislation is about providing much more robust guidance for professionals working on the ground and to assist in training front-line doctors and other health professionals to make judgements about when to refer cases on and how to get support themselves when dealing with what are complex and difficult situations for children.
Mr Brady:
In my constituency of Newry and Armagh, which is on the border, many young people socialise in the South, as I did when I was younger. If the age of consent is lowered an anomaly will be created because the age of consent is 17 in the South. Do you envisage any problems if the age of consent is lowered to 16?
Mr Reid:
There are many anomalies in child-protection abilities between this jurisdiction and the Republic of Ireland. The age of consent does not stop children having sex or becoming pregnant, and, as Avery said, it is easy to get sidetracked by those issues. On balance, we are happy with the age of consent being lowered to 16 years provided that there are a number of other measures to support children. On the North/South dimension, we have consistently said that there must be improved co-operation on a range of issues — not just on sexual offences — such as exchanging information, safeguarding vulnerable groups and future legislation on vetting and barring. There are huge anomalies that are highly problematic.
Mr Ross:
You said that lowering the age of consent will not stop sex between young children, that there is no link between the age of consent and teenage pregnancies and that it is not relevant to forced sexual activity. Are you not worried about the message that lowering the age of consent would send to children? Do you not agree that if the age of consent is lowered, there will be an increase in the pressure on children to have sex the closer they get to that age, because there will be a perception that everyone else is doing it and that the Government have legislated for that.
Mr Crummey:
That depends on how that message is delivered. If it is delivered in a way that suggests that Northern Ireland is stepping outside of all other controlled areas and suggesting that the age of consent is lowered, that will probably have a traumatic effect on the public. However, if the message is delivered in terms of equality and rights for children across the UK, then a different message is being delivered. Colin is correct that it will not matter to children — they will have a consensual sexual relationship when they feel that it is appropriate, regardless of any legislation that aims to combat such activity.
Mr Wells:
I am disappointed that you said that because at least a child of that age can be told that such behaviour is illegal. Sexual relationships between 16-year-olds, consensual or otherwise, are downright wrong and should be discouraged for both the moral benefit of society and the welfare of those concerned. Saying that such behaviour is wrong does not mean that it will not happen; there are many offences, such as speeding and breaching parking restrictions, which happen all the time. However, we do not say that because those things are going to happen that we will allow them to. Instead, we send out a clear message that society believes that such actions are wrong.
I take Mr Brady’s point that there will be a ridiculous situation where a young couple in Strabane may commit an offence if they hop across to Lifford because what will be legal in Northern Ireland will still be illegal in the Republic. That is the crazy situation that will develop. We must try to raise standards and tell our young people what society expects of them and that we know that they will not always reach that target but that the target must be made as high as possible to try to raise standards in their sexual relationships.
Mr Crummey:
As an organisation, the NSPCC cannot afford to get involved in the morality of whether something is right or wrong — we must look at what we consider to be the best interests of children. We do not consider prosecuting two consenting 16- or 15-year-olds who are having a sexual relationship to be in the best interests of children. Although that may not sit comfortably morally, we cannot afford to mix and match the moral and legal arguments’ otherwise it would be me making a decision as opposed to the NSPCC or the general public. I do not know if the public at large have been asked their opinion on what the age of consent should be. I guess that you would get a huge variety of responses.
Mr Reid:
Children in Northern Ireland can get married at the age of 16, which is another anomaly.
Mr Crummey:
It is important that the Committee does not take from this discussion that the NSPCC is saying that it would support the lowering of the age limit to the age that it is in some of the European countries. That is absolutely not the case.
Mr Bowser:
If a sexual-health message is to be sent out to children and young people, clearly the message that we would want to deliver is that the later the onset of sexual activity, the better — particularly for girls, in terms of their health. We must ask ourselves if we are being effective on that front as well. It is a very complicated situation. You can get very easily get fixated on the age of consent, and that does not solve the problem that you want to address.
Mr Wells:
The logic of your argument is that if children aged 12 or 13 are regularly having consensual sexual intercourse, then the age limit should be brought down to reflect the practice. That is the logic of what you are saying.
Mr Bowser:
No, it is not. It is the difference between criminalising that behaviour and not criminalising it. It does not stop you from taking action in other forms. As a social worker, if I were faced with a situation whereby 12- and 13-year-olds were having sex, I would want to talk to those children and their parents and find out what had happened. I would want to find out if there was an exploitative or abusive element; if that was the case, you may well find that it is a criminal matter. Even if there were not such an element, you would ask what the parents, and the other people involved in those children’s lives, were doing. It is more an issue of where the criminal line falls rather than sending a message that such behaviour is OK.
Ms S Ramsey:
I understand the arguments that are being put forward by yourselves and the arguments that others have put forward. I was struck by the point that you made earlier, Martin, about there being two issues around the ages of consent. It could be a matter of two 15-year-olds consenting to a sexual relationship, or it could be a matter of a predator and a child.
In your presentation, you said that the legislation would bring this matter in line with what is happening in England and Scotland — I do not even think that it brings it in line with what is happening in Wales. Mickey made the point that the age of consent here would then be out of step with the Twenty-six Counties. From what we are reading, and from what you are saying, the majority of this legislation is good. Do we really need to get into an argument outside of this legislation? While it might bring it into line with what is happening in England and Wales, we are our own jurisdiction. I am conscious that we could get involved in that whole argument for nothing, when the legislation is there about the age of 17.
Mr Crummey:
I am not sure how you want us to respond, Sue. The same argument could be made for the age being set at 16.
Ms S Ramsey:
Point taken.
The Chairperson:
I thank the representatives from the NSPCC for their presentation and for attending this morning. Hopefully, the Committee will take on board the comments that have been made.
I now move on to a briefing from Barnardo’s on the draft Order. We have an updated written submission from Barnardo’s, which was circulated to members this morning.
I welcome Margaret Kelly, the director, and Jacqui Montgomery-Devlin, the children services manager, from Barnardo’s. I invite the witnesses to make their presentation and present their views on the draft legislation. We will then throw the floor open to members for questions.
Ms Margaret Kelly (Barnardo’s):
In the interests of accuracy, I had better say that I am the assistant director — otherwise the director might not be too happy.
Barnardo’s thanks the Committee for inviting it to make a presentation on the draft Sexual Offences (Northern Ireland) Order 2007. Throughout discussion on the draft Order, the organisation has commented on it and has worked on a range of issues that relate to it.
Barnardo’s is the biggest children’s charity in Northern Ireland. It works with around 9,000 children and their families every year. It has drawn on its range of service-based experience to inform its views on the draft Order. Some of that experience has been gained through protection work with children and young people who have suffered sexual abuse or have been engaged in or drawn into commercial sexual exploitation. Our presentation will focus on some of those matters. Barnardo’s also provides a service for young people who engage in sexually harmful behaviour and works with those who are most likely to engage in early sexual activity, who tend to be the most vulnerable young people. Barnardo’s also works extensively with school-age mothers and teenage parents. That range of experience has been brought to bear and has informed the organisation’s views.
Barnardo’s welcomes the introduction of the draft Order and the fact that all sexual offences will be dealt with under one piece of legislation. Current legislation, some of which is over 100 years old, is disparate. It is difficult for people who work in children’s protection to find their way around the legislation and to identify what parts of it are useful and helpful.
Barnardo’s is aware that the Committee is focused on the actual piece of legislation. However, we want to point out that the legislation’s implementation is as important as how it is drafted. Therefore, we want the Committee to emphasise the need for training to be made available when the legislation is introduced; not only to legal practitioners, but to social workers, GPs, health workers, and those in the voluntary and community sector who will interface with the legislation when they work with children and young people. Barnardo’s wants to emphasise the need for such training.
Barnardo’s welcomes the changes to tariffs and offences in the draft legislation. Often, we are aghast at some of the low sentences that are given to the perpetrators of sexual abuse against children. Therefore, we particularly welcome the increase in the tariff to 14 years for sexual activity with a child of 14 years of age and over, and life imprisonment for the serious sexual assault of a child of up to 13 years of age. Barnardo’s also welcomes the fact that the current tariffs for unlawful carnal knowledge are to be changed. The current tariff for unlawful sexual activity with someone of 14 or 15 years of age, which is two years’ imprisonment, will increase to a maximum of 14 years under the new legislation. Barnardo’s believes that that is particularly important.
Barnardo’s has had experience of children who were under 13 years of age at the time that they were abused, and the question of their consent being raised in court. Therefore, a particularly important part of the legislation that Barnardo’s wants to be introduced is that the question of consent will no longer be available. In future, if the legislation is introduced, the defence of consent for sexual activity with a child who is under 13 years of age will not be available. The offence will automatically be rape. Having had experience with children who have had to go to court and face questioning on consent, Barnardo’s welcomes that as a particularly important development.
In saying that, however, it creates a situation for those children who are between 13 and 16 years of age. If a child who is under 13 years of age suffers sexual abuse, that is clearly rape. The child does not have to face consent issues. If a child is 14 or 15 years of age, however, that is viewed differently. The issue of consent will be available. Around two years after the legislation was introduced in England and Wales, Barnardo’s carried out a survey among its managers who work with children in such situations. They felt that that distinction caused difficulty, because in situations in which children who were under 13 years of age had been sexually abused, a different attitude was taken towards that by the police and, to some extent, by social services. The level of investigation was much more rigorous and, to some extent, clearer and more supportive than it was in cases of sexual abuse of children who were 14 or 15 years of age.
Although Barnardo’s understands some of the thinking that led to the creation of that distinction, it is concerned that in practical situations — in which thresholds must be met, there are resource difficulties and the police do not have as much time as they need — it may be the case that children who experience sexual abuse at 14 or 15 years of age may not get the same response as those who are under 13 years of age. To some extent, that is being borne out by Barnardo’s experiences in England and Wales, and we might need to examine the issue of consent for 14- and 15-year-olds. Barnardo’s recognises that that is a difficult issue.
I will state Barnardo’s view on the age of consent, and I understand that it is a very difficult issue. We work with those children, so we know just how difficult an issue it is in practice. The organisation wants to make it clear that it recognises that early sexual activity is undesirable and that it goes with many other early risk-taking behaviours that can often lead young people into difficulties. Therefore, Barnardo’s does not underestimate in any way the impact of that early sexual activity, but the response to consensual activity should be to offer help to the individuals rather than to prosecute them.
We had a long, internal discussion about our position when the draft Order suggested that the age of consent should be 16. I have listened with interest to what Committee members have said about it, and I accept some of the points that they have made about where to set the standard. However, our experience and the range of our work suggest that many young people who engage in early consensual sexual activity are completely unaware that there is an issue about age. That does not enter their consciousness when they undertake such activity. On that basis, we do not consider that lowering the age of consent by one year will send out a huge message to young people that they should engage in sexual activity at 16. In fact, our organisation says clearly to young people that it does not think that that is a good idea and that they are too young. We must look at a range of other strategies for helping young people to make much more informed decisions about sexual activity, which are based on their self-beliefs, self-respect and self-confidence, rather than sending out a message which says, "You are 16; away you go." That would certainly not be our approach.
Barnardo’s view is that the legislation will equalise the age of consent with that in England, Scotland and Wales, and it will gender neutralise it. There will not be a massive difference in dropping the age of consent from 17 to 16. On that basis, Barnardo’s does not oppose that aspect of the legislation.
Barnardo’s shares some of the concerns that were raised by the National Society for the Prevention of Cruelty to Children (NSPCC) about mandatory reporting and its impact. Section 5 of the Criminal Law Act (Northern Ireland) 1967 must be taken into account in relation to the age of consent, and that issue must be addressed.
Another issue concerns children who engage in sexually harmful behaviour, and Barnardo’s provides one of the three services in Northern Ireland that work with those young people. In the past, it has undertaken some research on the experiences of those young people. In many respects, there seems to be very little guidance and protocol as to which young people are prosecuted and which are not. Whether a young person is prosecuted can often be a matter of geography and who the local district police commander is. Young people can be prosecuted under that legislation for a complete continuum of sexual offences, ranging from inappropriate touching to rape.
On occasion, Barnardo’s has asked for young people, who have been therapeutically assessed by our service, to be prosecuted, but that has not happened. In one or two cases, we said that we considered the young person to be a danger and that there really needed to be a prosecution. However, that did not happen.
Young people have also used our service — and I am thinking of one example in particular. A boy of 14, who had severe learning difficulties, inappropriately touched the child who lived next door. He was prosecuted, but his brother and an older friend who had abused him were not. I want to give the Committee the sense that the issue that Barnardo’s is raising is not simple, and it can be horrifying. I was horrified that the young man in that case was prosecuted and that the two people who had raped him were not. For whatever reason, they could not be prosecuted.
As a matter of urgency, this piece of legislation must be used to put in place the sort of guidance and protocols that will make clear the circumstances under which young people will or will not be prosecuted for engaging in sexually harmful behaviour.
My understanding is that the NIO will organise round-table talks on this issue. It does not belong to one Department — it belongs to a range of Departments. For some years, the NSPCC and Barnardo’s have been trying to get the Public Prosecution Service, the police, the NIO, the Department of Health and the Department of Education to come together on the issue. We welcome the fact that the NIO will take the matter forward, that, but we would welcome the Committee’s support in highlighting the issue.
Finally, I wish to highlight the issue of trafficking and sexual exploitation. Ms Montgomery-Devlin manages our sexual exploitation service.
Ms Jacqui Montgomery-Devlin (Barnardo’s):
The service was set up in response to the sexual exploitation of young girls in Belfast. We started in the Eastern Health and Social Services Board area but have consequently done work in other board areas. What we say today is based on the young people — particularly young women and girls — who we have worked with, and on what we have heard from other agencies that work with young people who are either being sexually exploited in various scenarios or at risk of sexual exploitation.
Ms M Kelly:
The legislation includes a defence of reasonable belief in age where a child is over 13 and under 18. When young people are drawn into sexual exploitation, one of the most common defences is that the perpetrator thought that the young person was, say, 20 when they were actually 14. This defence can allow those who wish to sexually exploit young people to continue to do so, knowing that they can argue reasonable belief. We recognise the difficulties of taking that defence away completely; it can be difficult to tell a young person’s age. However, where there is a gap of five years or more — particularly with a young person of 14 or 15 — that is often one of our indicators of potential sexual exploitation.
Quite often, young people who have been drawn into sexual exploitation will be very vulnerable; they may have been in care, and they may have been sexually abused. Our experience in Northern Ireland is that, for example, a 40-year-old might establish a relationship with a 15-year-old who is in care, take her from the care home and draw her in to a world of sexual exploitation. We recommend that reasonable belief in age only be available where there is a specified age difference. If the child was 14 or 15 and the perpetrator was 25, say, a claim of reasonable belief in age should not be allowed in the same way. I can see some difficulties with that, but we are also looking for mechanisms to try to protect those children. They are a group of children whom it is difficult to protect, and it can be difficult to get prosecution.
Ms Montgomery-Devlin:
I cannot say this categorically, but that defence is used in most cases where prosecutions are being dealt with. The very fact that our service is set up to work with young people who have been sexually exploited shows that there are adults out there who want to sexually abuse young girls.
In addition, a lot of young girls with whom we work will say that many of the adults who abuse and exploit them will ask them to find younger girls for them. Their ultimate aim is to have sex with a young girl. To then stand up in court and say that they believed she was a certain age is nonsense and does not afford the young people the protection that they need.
Ms M Kelly:
Barnardo’s supports the NSPCC belief that those having sex with children should not receive a lower penalty than those who organise and exploit such sexual activity, and I hope that the Committee picks up on that.
We welcome the inclusion of the offence of sexual activity in a public lavatory, because we have clear evidence that pubic lavatories are used by people who are sexually exploiting children. They display relevant telephone numbers, and they put up information on the ages of children who are available. We have records of that occurring in public lavatories in Belfast. It is, therefore, important that that offence is included in the legislation.
Mrs D Kelly:
In relation to trafficking and sexual exploitation, I take it that you are really talking about prostitution. Assistant Chief Constable Drew Harris has said that most of those in Northern Ireland who become involved in prostitution have previously been in care. I support your suggestion regarding the sentencing arrangements for those who organise such sexual activities as opposed to those who participate. I am shocked by your comments about public lavatories. What have you done with your research? Where has it gone? Have you had success with it? How should the legislation be amended to meet that need?
Ms Montgomery-Devlin:
We have not had a lot of success. About two years ago — and having looked at what our colleagues in England had done looking at how young people were being sought — we decided to go round some of the public lavatories in Belfast with representatives from Belfast City Council. What we saw mostly consisted of adults seeking boys and young men, both over and below the age of consent. We reported that to our management group within the Eastern Board, which had a meeting with the PSNI and Belfast City Council. We suggested that we put up some Barnardo’s posters, which would have had our helpline number and details of how we could be contacted by any young people affected by the exploitation. We wanted to let the young people know that there is a way out. However, we were not permitted to do that, unfortunately. We were told that the problem was not particularly serious and that drawing it to the attention of the public was an issue — even though it was up there on the walls anyway. We did try to do something about it.
Mrs D Kelly:
Those advertisements would be a way of investigating, and that might lead to prosecutions.
Ms Montgomery-Devlin:
Absolutely.
Ms M Kelly:
It has been done in other places.
Mrs D Kelly:
I am amazed that you were not allowed to put your posters up.
Ms M Kelly:
Police in England and Wales have used information from public lavatories.
Ms Montgomery-Devlin:
And information found in train toilets. That investigation was initiated by a journalist, and it led to the conviction of a large paedophile ring.
Mrs D Kelly:
There is nothing in the legislation. Did you raise it with the NIO or others?
Ms M Kelly:
At one stage, it was questioned whether the offence of sexual activity in public lavatories would be included in the legislation. We said that public lavatories can be exploitative locations and that it is important that the offence be included in the legislation.
Mr O’Loan:
Thank you for your presentation. I will support you strongly on one issue and question you about another. You mentioned the defence of reasonable belief in age in cases of sexual exploitation. That must be closely looked at. If that defence is too easily presented or sustained, it will become a dangerous loophole.
I want to ask you about one of the recommendations in your submission. Under the proposed legislation, children under the age of 13 simply cannot give consent to sexual activity, and everyone will agree with that. However, I find it somewhat surprising that you advocate that the same stipulation should be extended to the age of 16. If I understand you correctly, that would mean that the defence of consent could not be used, or ever brought into play, in cases of sexual activity involving a child, or children, up to the age of 16. Given what goes on in the real world, that could create a minefield, with people demanding prosecutions when common sense should dictate that that is not the appropriate action to take.
Ms M Kelly:
That is a genuine difficulty. Perhaps the legislation needs to unpick some of the issues to a greater extent because, to some degree, it is just following what they have in England and Wales. Our concern is that cases involving 14- and 15-year-olds do not receive the same level of investigation — and, potentially, those children do not get as much support — in terms of recognition that a criminal act that has taken place, where it has been abusive.
Perhaps that is not the best way to handle that concern. Our concern is that the issue needs to be addressed by formulating appropriate guidance in addition to the legislation. In England and Wales, 14- and 15-year-olds have fallen off the priority list to some extent. To some extent, if a crime involves a child who is under 13 years old, where there is no question of consent, the prosecution becomes easier. It is much more difficult to prosecute when the case involves 14- or 15-year-olds.
The Committee should prioritise and examine those issues. We do not want 14- and 15-year-olds who have been abused to find themselves at the bottom of the priority list for investigation. In our experience, that has started to happen.
Mr O’Loan:
I agree that guidelines are very important, and they could be developed in consultation with groups such as Barnardo’s.
Ms M Kelly:
Yes.
Ms Montgomery-Devlin:
I will give the Committee an example of what happens on the ground and of the frustrations that have led us to this stance. We sit in one strategy meeting after another at which there are strong suspicions that, for example, a group of young girls are being sexually exploited. We hear that a 14- or 15-year-old has "consented" to being horrifically raped, to the extent where she almost died — and that is almost accepted. In addition to introducing legislation to protect those children, such attitudes must change.
That is where I am coming from. We need to extend that protection to 16 to protect young girls who are 14, 15 or 16 and who believe that such abuse is part of life and is supposed to happen. They almost believe that they have consented to it. Their background is such that they need to be protected by legislation.
Ms M Kelly:
The context is that we have faced real difficulties in getting investigations and prosecutions in cases where 14- and 15-year-olds have been sexually exploited. There is some degree of acceptance that that may be the case, but that nothing can be done about it. To some extent, our request reflects our frustration at that situation. When 14- and 15-year-olds are being sexually exploited — and social services and the police know that it is happening but do nothing to address it — we need to take action.
Mr O’Loan:
I take your point.
Mr Wells:
Your founder would be rolling in his grave: I am sure that you have heard that phrase before. An organisation that started out with strong Christian principles seems now to be simply going with the tide. I assure you that that is my personal opinion.
I accept that, in practice, many of the people in Northern Ireland who are involved in underage sexual activity are unaware of the restrictions. Then again, the same could be said of lots of activities that children are involved in, including underage drinking, solvent abuse and many other issues. In those instances, no one argues that such actions should be made legal simply because children are doing it anyway. A standard should be set and people should be encouraged to aim to reach that standard.
Barnardo’s has fallen into line with other organisations in saying that as the difference is only one year and it will bring us into line with the rest of the UK, it should be accepted. Why not try to raise the standard for young people and send out a clear signal that underage sex — consensual or otherwise — between 16-year-olds is unacceptable? People should be encouraged to desist from that, and their parents should be discouraged from allowing it to happen.
Ms M Kelly:
I respect and understand your point of view on that issue. I want to make it clear that, in our practical services on the ground, we do not encourage young people to engage in early sexual activity — in fact, we discourage it as risk-taking behaviour. I can understand why you feel that setting the age of consent at 17 sets a standard. I believe that what is required is information and advice for young people. As I said, I respect your point of view.
Mr Wells:
There is no inherent reason why your organisation has to support the change to the age of consent, apart from the fact that everyone else seems to be supporting it and all the other organisations seem to be rallying behind it.
There is a worrying trend at the moment regarding underage sexual activity. It seems to be going all in one direction. Surely someone should be considering that and trying to drive standards up rather than down. Inevitably, in a few years someone will argue that the age of consent should be reduced yet again because most 14-year-olds are having consensual sex and they do not know that it is illegal. If that continues, there will be no moral absolutes at all in society.
Ms Montgomery-Devlin:
What is happening in this discussion is the same as what happens with the young people who we work with, in that the focus is on the young people yet again. There should be more focus on adults — those who are exploiting, abusing and having sex with children and young people. We can be sidetracked yet again. Every day I see the focus on the young people and their consenting to it, whereas those who are exploiting and abusing them often get a by-ball because we get sidetracked with such discussions.
The Chairperson:
Maybe we could explore this issue from another angle. In your daily work, do you have much experience of people below the age of 17 being apprehensive about accessing information regarding sexual health?
Ms Montgomery-Devlin:
Most of the young people who we work with are already involved with social services or will have accessed information from other agencies, such as Brook Advisory Centres. We can make information available to them should they need it, but it is not a major component of our work with them. Obviously, advice is always available and we have to assess their level of knowledge.
The Chairperson:
Thank you. The Committee will take your comments into account in its report to the Assembly.
Ms M Kelly:
Thank you very much.