Issues - False Allegations
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
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
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
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'