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Safeguarding Vulnerable Groups Bill [HL]

moved Amendment No. 41:"Page 5, line 11, at end insert—" ““(   )   It is a defence for a person charged with an offence under subsection (1) or (2) to prove that he did not know, or could not reasonably be expected to know, that he should have been subject to monitoring.”” The noble Baroness said: My Lords, in moving Amendment No. 41, I shall speak also to Amendments Nos. 42 to 44, 48 and 49. The whole group is designed to do what the noble Lord, Lord Harris of Haringey, has just suggested as an alternative; namely, to reduce the criminality in the Bill. Amendment No. 41 would introduce a defence for a person who is engaging in regulated activity without being subject to monitoring and who is charged with an offence. I presume that the punitive framework in the Bill is intended to ensure that those engaged in the vetting processes carry out their duties extremely rigorously. However, the wide range of regulated activities in Schedule 3 means that many thousands of people who are not directly involved in teaching or caring will be subject to vetting. Of course I agree that every attempt should be made to ensure that people do not engage in regulated activity without being vetted, but the best way of achieving this is to ensure that IBB procedures and processes are clear and definite, not by criminalising those who make mistakes. Clause 8 makes it an offence to engage in any regulated activity without being subject to monitoring. The only defences to this are if the individual got permission to engage in the activity before the Bill came into force or was involved in a regulated activity ““on an occasional basis””. This means that a person who, for example, gets work involving child therapy or who comes into frequent contact with children in relevant childcare premises, or who has contact with vulnerable adults in a care home, will commit an offence if they are not subject to monitoring. It is of particular concern that such a strict liability offence can be committed as a consequence of involvement in an activity which is defined by as unspecific a term as ““frequent””. At earlier stages of our debates, ““five times”” was given as a definition of ““on an occasional basis””. I really do think there is a loophole in the Bill if a serious sex offender would not offend if he engaged in regulated activity just once, twice or maybe three times a year; it takes only once to molest a child. Unless we close some of the loopholes, this Bill could be seen as retrograde. However, I digress. The defence in the amendment is quite limited. The onus is on the person charged to prove that they did not know, or could not have known, that they should have been subject to monitoring. I accept that this would be quite difficult because it involves proving a negative. It is similar to the defence introduced in Clause 7. However, it differs from that defence in that it offers an alternative; a person can prove that they did not know or could not reasonably have been expected to know. The reason for this is that, when proving a negative, it is extremely difficult to establish that you could not reasonably be expected to know. It will be especially difficult to prove that he did not know whether the person has signed for a letter telling him that he is barred, as we discussed earlier in our debate on Amendment No. 10A, which the Government accepted. But things go wrong, and people need proper opportunities to prove their innocence. My theory is that if it can go wrong, it will go wrong. That was proved to us last weekend. Those of us who read the newspapers will have seen that the CRB branded as criminals nearly 1,500 people who were not criminals; it was a case of mistaken identity. We must ensure that the defences against the rather draconian criminal offences introduced in the Bill are robust and that people have an appropriate opportunity to prove their innocence. Amendments Nos. 42 to 44 would restrict the offence of the use of a person not subject to monitoring in Clause 10 to situations where a person knows that someone is not subject to monitoring but still permits them to engage in regulated activity. The definition ““reason to believe”” is far too subjective. What is good reason in one situation is not in another. I believe that it is far too draconian to be left in the Bill, especially in a field where the turnover of staff is high, as it is in some care homes. Someone should know that the person should be subject to monitoring, but is not, before that person commits an offence. The amendments would restrict the criminalisation to situations where a person actually knew that someone was not subject to monitoring but still allowed them to engage in regulated activity. Amendments Nos. 48 and 49 stem from exactly the same concerns. In this case, we decided to table amendments to Clauses 11 and 12, adding the word ““negligently”” to ensure that only negligent cases are included in the offences in these clauses. The word ““negligence”” is well understood in legal circles, and people should be penalised only in these cases and not simply if they make a mistake, or if they are badly trained or badly supervised, which is not their fault. I attach considerable importance to the amendments, because I believe that they redress the balance of fairness in the Bill. Although I would not in any way want to reduce the rigour of the measures to protect children and vulnerable adults, we should always bear in mind the human rights of those who might be incorrectly penalised and who might inadvertently commit a criminal offence under the Bill. I beg to move.