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Mr. Cohen: Much of what the Bill does to limit the use of a woman's past sexual history as evidence in such trials is right, but will my right hon. Friend consider the loophole that I believe still exists in the Bill whereby a woman's sexual relations with someone other than the accused can be taken into account in the trial hearing? Why should that be the case? Why should a woman's relations with someone else be relevant in any way to an accusation of rape against a specific person?
Mr. Straw: We are dealing here with a process of justice. We want to see justice for victims but also for defendants. Making judgments on the matter has involved a very fine balance. If we go too far to protect the victims
by banning all sorts of cross-examination or adduction of evidence, we may end up with a situation in which a jury will not convict. We may end up with exactly the opposite of that which we wish to avoid. We have sought significantly to restrict the admission of evidence about previous sexual behaviour in terms of time and in relation to other individuals. Generally speaking, the evidence that is admissible will relate to what happened at and around the time of the alleged offence. There could be circumstances in which evidence relating to the woman's conduct with other people is relevant, and admission of such evidence is not completely ruled out in the Bill, but it will be restricted.
I am conscious that I have spoken already at some length. The issue of the reporting restrictions in the Bill understandably caused some controversy in the other place and I am sure that it will be the subject of discussion on the Floor of the House and in Committee. The Bill, like the report "Speaking up for Justice", seeks to make the law on reporting restrictions more consistent so that it is less confusing and less likely to be undermined by loopholes in the legislation. The idea is that all restrictions imposed in England, Wales or Northern Ireland will now be enforceable throughout the United Kingdom and will apply to all media, including the internet.
Ms Roseanna Cunningham (Perth):
I hope that the Home Secretary received advance notice of the precise point that I wish to raise. It relates not so much to the content of the Bill as to the inclusion of Scotland in clause 48 and the related clause 40. Given that it is unlikely that the Bill will be through the parliamentary procedure by1 July--the point at which the transfer of powers takes place--and given that, with the exception of abortion and drugs legislation, criminal justice and procedure are entirely devolved matters, what will be the parliamentary basis after 1 July for proceeding with the Bill as it relates to Scotland?
Mr. Straw:
I am grateful to the hon. Lady for giving me notice of that question. First, the provisions create an offence in Scotland, but only in so far as that is necessary to enforce court orders made in England, Wales and Northern Ireland. As the hon. Lady will know, and I certainly know all too well, it is a matter of some concern that, for example, injunctions can be imposed in England, Wales and Northern Ireland but require separate action in Scotland. I do not make that as an ad hominem point; it is just that I have had some experience of the matter. It is anomalous and we are seeking to deal with it.
I am advised that the Bill will become satisfactory law whether it receives Royal Assent after or before 1 July. I am happy to take further advice on the matter. I will ensure that my hon. Friend the Minister of State replies in more detail on that point. If we cannot get the best, if not the most expensive, legal advice by then, I shall write to the hon. Lady. My hon. Friend was very expensive when he was practising--high quality--and no one but he knows what a sacrifice he made in order to take the Queen's shilling.
The courts will have a new power to impose restrictions to protect witnesses whose fear of the consequences of publicity is so great that they are unable to co-operate fully with an investigation or to give their best evidence at trial. The Bill extends the restrictions on the reporting of information likely to lead the public to identify children
who are involved in criminal offences. At present, the law can protect children in that way only once charges have been brought. Under the Bill, it is proposed that the protections will start at the point at which a criminal investigation begins.
Those measures prompted a good deal of discussion while the Bill was in another place. Representations were received from the print and broadcasting media; their concern was that the changes proposed imposed an undue burden on them and their ability to report news effectively. We listened carefully to all that was said, and amendments have been proposed as a result.
Mr. Andrew Lansley (South Cambridgeshire):
I have a question about the general structure of clause 43. The Home Secretary states that, in his view, the Bill is compatible with the European convention on human rights. He will know that that convention sees the right to freedom of expression and the right to privacy as co-existing. Why, therefore, is the Home Secretary structuring the Bill so that the restriction on the right to freedom of expression in relation to those aged under 18 is effectively a blanket ban on reporting, rather than a ban that is in line with the convention? Such a ban would imply a set of criteria that presuppose a need to impose reporting restrictions, rather than the presumption that reporting restrictions, and the abridgement of the right of freedom of expression, are right in all circumstances.
Mr. Straw:
We are proposing that those restrictions can be lifted with parental permission. I signed a certificate on the front of the Bill stating that I believe that the provisions are compatible with the European convention on human rights.
Mr. Lansley:
It is not necessarily true.
Mr. Straw:
I can assure the hon. Gentleman that I would not have signed the certificate unless I had been convinced of that. If clause 43 ends up before the European Court of Human Rights in Strasbourg, the mere fact that I signed a certificate will not necessarily be taken as good evidence before that court. I accept that, but we do our best; it is an important part of the process of bringing legislation before the House.
The principle of reporting restrictions has long been accepted; it goes back at least to the Children and Young Persons Act 1933. At present, there is an anomaly because those restrictions on reporting names and identities kick in only when the proceedings start, and not, for example, at the time of arrest. That is anomalous because, if the evidence against someone is extremely strong and the proceedings begin quickly, that person receives greater protection than someone against whom the evidence might not be strong and might later be dropped. Such a person might be the subject of press reporting, while someone against whom there is strong evidence will not.
I have thought long and hard about this matter. I want to make it clear that, although we have moved a long way to meet the concerns of the print and broadcasting media, we want discussions to continue. We shall also take account of what is said on both sides of the Standing Committee, because achieving the right balance is very difficult. We need to protect children from undesirable and unnecessary publicity, and it needs to be borne in
mind that that includes children who are defendants or potential defendants as well as those who are innocent victims. At the same time, the press and other media have an important role to play both in our democracy, by holding institutions to account, and as part of the way in which we hold individuals to account for their criminal behaviour. To reinforce that, my hon. Friends and I fully backed the arrangements that were made in the Crime (Sentences) Act 1997 to give youth courts the power, after conviction, to lift bans on reporting altogether, without the consent of parents. We have sent out a circular to that effect and discussed it with the Guild of Editors and would like to see that power used more widely. The naming of young offenders, especially those in the older age bracket--15, 16 and 17-year-olds--is a powerful weapon and it should be used. That is not in any sense inconsistent with a concern to ensure that, up until the point of conviction, those people receive some protection. However, as I said, we do not believe that the provisions of the Bill as it stands are the last word; we are open to proposals on how to achieve a better balance, and my hon. Friend the Minister is taking a keen personal interest in that.
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