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Mr. Edward Leigh (Gainsborough): In respect of the intervention by the hon. Member for Basildon (Angela Smith), does my hon. Friend acknowledge that the Court of Appeal in the Ralston Edwards case made it clear that the judge had full power to take authority and to take command of such a situation so as to prevent the unacceptable treatment of a complainant? The Court of Appeal made a firm judgment after that very bad case.

Mr. Syms: I thank my hon. Friend for those comments. The matter was certainly considered. Nevertheless, we must still be careful and the matter must be discussed in Committee. As has often been said in this debate, there are questions of balance. I have not come to a firm conclusion, but the matter must be tested in Committee. It is easy to use public examples of appalling cases to change the law and affect the rights of thousands of people about whom we never hear.

My final point is on press restrictions and clause 43. My hon. Friend the Member for South Cambridgeshire (Mr. Lansley) asked whether the blanket ban was overdoing it and whether such a ban conformed with the European convention on human rights. There are concerns about that blanket ban in Fleet street and it is another matter that must be considered in Committee.

I welcome most of what is in the Bill. We must test the proposition put forward earlier by the Home Secretary so that we ensure that the balance between the needs of victims and defendants is correct. I am sure that at the end of the process we shall make good progress and have a better Bill.

4.17 pm

Mr. Harry Cohen (Leyton and Wanstead): I agree with my hon. Friends and with some other hon. Members that this is a fine Bill. I welcome it; I welcome the youth justice provisions, which follow up Labour's election pledge to deal effectively with persistent young offenders. It adds alternatives to custodial sentences to give such

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young people future lives free from crime. The measures on witness protection are especially welcome; it is most important to convict the real criminals.

I want to concentrate my comments on sexual offences, especially rape cases, which are dealt with in the Bill. In 1992, I introduced the Sexual Offences (Amendment) Bill with the support of the organisation Women Against Rape. That Bill pressed for the wholesale reform of the rape laws and achieved some success. Following its introduction, case law made rape in marriage a crime; that had not been the case for centuries. That was welcome. Male rape was accepted as a criminal offence for the first time. However, many matters such as consent, or non-consent--especially in relation to rape--were not addressed. I welcome the fact that the Bill begins to address those matters.

Witness support for complainants in sexual offence trials is a welcome measure. Witnesses can be screened from the defendant; they can give evidence on live television link; or the court can be cleared while they give evidence. Unrepresented defendants will be banned from personally cross-examining complainants in sexual offence cases. The examples we heard showed that the victim relived the event; it was like a double rape because she had to endure the experience all over again.

The Government have made a laudable attempt to address the issue of the complainant's sexual history, to ensure that general allegations about the complainant's sexual history that are made purely to attack her credibility will no longer be allowed. The violence of rape is intolerable and is in no way mitigated by the victim's past sexual history--that has nothing to do with the violence that is rape. I note that the Government's "Speaking up for Justice" report, which was published last year, cited a study showing that judges allowed up to75 per cent. of defence applications to question the victim about her sexual history in a way

"that seems to go far beyond that demanded in the interests of relevance and . . . fairness to the defendant."

That is a clear reason for action.

At this point, I wish to return to an issue that I raised in an intervention during the opening speech of my right hon. Friend the Home Secretary--his assumption that there would be less chance of court prosecutions succeeding in rape cases than in cases relating to other offences. I do not understand why that is necessarily so. Already, the Crown Prosecution Service goes through such cases with a fine-tooth comb before they even get to court, and many cases that should reach court do not do so because of that practice. To assume that the cases are less likely to succeed in court is a double block on obtaining successful prosecutions. We need to challenge such basic assumptions, for they are one reason why only one in 200 rapists is ever convicted--a worrying statistic, which the justice system needs to address.

The loopholes in the Bill cause me concern, especially those concerning women's sexual history, such as the 24-hours provision, which relates to the complainant's relations with other men. In December, I wrote to the Minister of State on the subject of the consensual behaviour of the complainant with someone other than the accused, if it occurs within 24 hours of the alleged offence. I said that I acknowledged the purpose of the provision, but asked

"why should the complainant's sexual behaviour with someone other than the defendant in this time period be deemed to be relevant?"

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In January, my hon. Friend replied, saying:


"The defendant may wish to say in his defence that he had consensual sex with the complainant shortly before or after the alleged rape and that the incident which the complainant now alleges was rape, was equally consensual."

I can understand that, but my hon. Friend went on to say:

"Or the defendant might have evidence which shows that the complainant had (consensual) sex with someone else shortly after the alleged rape. It would be wrong in the Government's view to prevent him from adducing evidence of this, or asking questions about it, in such circumstances."

I think that whether the complainant had sex with someone else is absolutely irrelevant. The issue on trial is what the accused did or did not do to her.

Mr. Hogg: Would not the hon. Gentleman concede that there are a number of cases where it might be relevant for the jury to know that the complainant is a person who is inclined to promiscuity? That can go to the question of consent.

Mr. Cohen: I do not agree with that. As I tried to establish through my 1992 Bill, the issue is purely one of whether consent is given or not given--if consent is not given, the act is rape. Whether or not the woman is promiscuous is irrelevant; if she has not given her consent, it is rape.

We must not accept the argument--and it should certainly not be used as a legal defence--that a woman having sex with another man, or even flirting with other man, somehow implies her consent to sex with the accused man. In Michigan in the United States, the law has been altered: except in cases where the identity of the accused is at issue, it allows evidence of sexual history only with the accused, but with no other man. I believe that that is the right way forward. In some cases, a jury needs to know if the victim and her alleged attacker have had a sexual relationship--it might explain how they came to be together on the occasion of the alleged rape--but questions about sex with other men are never relevant, serving only to demean and humiliate the victim, attack her character and divert attention from the facts of the rape. We should consider adopting the Michigan approach.

I am concerned that the Bill still allows legal credence to be given to an unreasonable belief on the part of the accused that consent had been given. In the other place, Lord Thomas of Gresford said that

"in almost every case where the defence is one of consent, there will be an additional defence that, even if the complainant did not consent, the defendant reasonably believed that she did consent. The two defences almost invariably run together.--[Official Report, House of Lords, 8 February 1999; Vol. 597, c. 51.]

Lord Goodhart said:

"English law has gone wrong in allowing unreasonable belief as a defence to a charge of rape."--[Official Report, House of Lords, 23 March 1999; Vol. 598, c. 1213.]

We should not give credence to an unreasonable belief.

The Government's women's unit wrote to Women Against Rape on that subject, saying that the Home Office view was that:

"For example, a defendant might claim that he believed the complainant was consenting because he had been told that she always kicked and screamed during sex. This would be relevant to his honest belief."

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That is not a reasonable view--it is the rough sex defence, which has been used repeatedly and quite unjustifiably in many rape cases. We know that a small minority of people engage in sado-masochistic practices, but it is dangerous to allow such a legal defence to be used in rape cases. The rough sex defence is only an easy excuse for non-consensual, violent rape.

Mrs. Teresa Gorman (Billericay): Does the hon. Gentleman agree that, if a woman decided that her best protection was to remain passive, she might be accused during the course of the trial of having consented, simply because she did not resist?

Mr. Cohen: That is a good point. That is why we have to come to terms with what does and does not constitute proper consent in such circumstances.

The other loophole that causes me concern is that defence barristers could still bring in evidence of behaviour "similar" to the woman's behaviour at the time of the alleged rape. That appears to give very wide scope--let me give one example. A complainant who goes to nightclubs regularly might be asked by a defence barrister whether she picks up men at those nightclubs and has sex with them. If she answers in the affirmative, that information could be used to justify the similar behaviour argument in the rape case. That is clearly unreasonable, and the clause concerns me.

It was suggested in another place that judges should give a mandatory warning that past consent with the accused does not imply consent every time. I think that that is the correct move. For example, in the case of rape in marriage, although consent would almost certainly have been given in the past, it does not mean that consent was given in the case of a brutal assault--and judges should make that point.

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