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Ms Drown: I agree with my hon. Friend that accounts of the sexual history between the witness and the defendant should be limited. Does he accept also that sexual history is not always relevant? We cannot say that a husband can never rape a wife when we know that, unfortunately, that happens too frequently.
Mr. Cohen: My hon. Friend makes a very good point. Although a couple may have had a mutual consenting relationship, it does not mean that rape cannot occur subsequently. We should not offer a legal defence to the opposite effect and I believe that we should consider introducing a mandatory judge's warning in such circumstances.
I think it is right to prevent the defendant from cross-examining the witness, as that is akin to a double rape. However, it is possible that defence barristerscould be more aggressive, ruthless and clinical in cross-examination. We must address those issues in the law in order to protect the complainants--particularly the women--involved.
Mr. Douglas Hogg (Sleaford and North Hykeham):
I must declare an interest in the debate as I am a barrister practising in the criminal courts and may be involved in rape cases. I support the opening remarks of my hon. Friend the Member for Ryedale (Mr. Greenway), who said that this is an important Bill. It makes substantial changes to evidence in the criminal law, and I shall focus on that section of the Bill rather than on the first part.
I must make a general point in response partly to the comments of the hon. Member for Leyton and Wanstead (Mr. Cohen) and partly to the remarks of the hon.Member for Basildon (Angela Smith). I listened to their contributions, and I got the impression that they were inclined to lose sight of a very important fact: the House must safeguard the interests of defendants. It is perfectly true that we must ensure that witnesses and complainants are not subjected to greater trauma than need be. Obviously, it is a disagreeable experience to appear in court, to give evidence and to be cross-examined and one does not want to make that still more difficult. We also have a public interest in ensuring that complainants come forward, for all the reasons that hon. Members have advanced.
However, at the end of the day, the most important person in a criminal case is the defendant--especially when he is facing a serious charge such as rape and when, if found guilty, he will probably be sent to prison for a long time. The House must be sure that nothing that we do to address the legitimate concerns of complainants or witnesses detracts from the fairness of a trial. That general point underpins the particular issues that I shall raise.
I oppose the prohibition, in clause 33, of a defendant's ability to cross-examine in cases involving sexual offences. We must recognise that the situation contemplated seldom arises. That is not surprising, as most defendants choose to take advantage of legal aid, which is generally available. Most defendants assume--probably correctly--that a lawyer will do a better job than they would. However, a number of defendants, although not many, who do not like lawyers--I am not particularly critical of them for that--or who conclude that they would do a better job than a possible representative choose to conduct their own cases. In the great generality of criminal cases--there are one or two exceptions--a defendant has that right, and we should be very slow in a democracy to deny a defendant the right to conduct his own case. We should do so only if there is an absolutely compelling reason to justify that decision.
At the same time, we must be conscious of the possibility of abuse. We must recognise that abuse has occurred in the criminal courts. The Home Secretary--or perhaps the right hon. Member for Berwick-upon-Tweed (Mr. Beith)--referred to the cases of Ralston Edwards and Milton Brown. However, the fact that only two cases are in hon. Members' minds, emphasises the rarity of such abuses. As my hon. Friend the Member for Gainsborough (Mr. Leigh) and other hon. Members pointed out, the case involving Milton Brown went to appeal and the Court of Appeal spelt out the powers of the trial judge. The trial judge has a robust power, which he or she is encouraged
to use, to intervene in order to prevent an improper exercise of the right of cross-examination by the defendant.
The Court of Appeal heard that case in May 1998 and, so far as I am aware, there have been no further cases of oppressive cross-examination by defendants. I think that it is premature to conclude that the Court of Appeal's advice to trial judges is not effective. Therefore, I conclude that it is wrong at present to remove from the defendant the right to cross-examine in sexual offence cases. I might come to such a view in the future if trial judges do not heed the advice of the Court of Appeal, but I believe that they probably will do so.
Mr. Leigh:
It is not just a matter of defendants--who face possibly 10 years in jail--having an ancient right to cross-examine their accusers. Will my right hon. and learned Friend comment on the point made in another place that there are many more acquittals in rape cases these days because there are many more prosecutions for marital or date rape? In those circumstances, a defendant may have perfectly good reasons for wanting to cross-examine the complainant and put his case directly to his ex-wife or ex-girl friend.
Mr. Hogg:
My hon. Friend is probably right. Consent is the difficulty in cases of date rape or rape within marriage. When a consent has undoubtedly been given on previous occasions, it will take a great deal to persuade a jury that the consent has been withdrawn. Therefore, I agree with both parts of my hon. Friend's intervention.
I revert to the point that I had in mind on clause 33. The Home Secretary made the point--I understand it entirely--that the court has the power to appoint a legal representative to cross-examine on behalf of the defendant thus disfranchised. However, I do not regard that as a sufficient solution. To start with, a defendant who has been obdurate on the appointment of a legal representative in the first instance may well not be very co-operative when it comes to giving instructions to the legal representative who has been appointed by the court. In parenthesis, we need to keep in mind that the Bill provides in terms that the legal representative is not responsible to the defendant. That is the language of the Bill.
We may well find that the defendant will not give instructions--[Interruption.] The Minister of State shrugs, but he should not. The idea that the legal representative can necessarily gain a proper sense of the defence from the papers is an illusion. That is especially the situation if the defendant has declined to answer questions during the interview process, as might well be the case. I am sure that that is within the knowledge of the Minister of State, and certainly it is within mine. In that event, the legal representative instructed by the court on behalf of the defendant will not be able to put the case with any degree of clarity.
If we deny to the defendant the right to cross-examine in those cases, we are creating the risk of unfair convictions.
Ms Margaret Moran (Luton, South):
The right hon. and learned Gentleman is making an extensive case for cross-examination and self-representation. Does he accept that, in certain cases involving criminal sexual activity--
Mr. Hogg:
It will more than extend it because the Bill would extend it dramatically. The hon. Lady is right to say that there are some cases where the right of self-representation is restricted. However, we are thinking about a dramatic extension of that practice. That applies to clause 33 and 34. The reservations that I have expressed about clause 33 extend inevitably to the process that is contemplated in clause 34, which is to build on the precedent referred to by the hon. Lady and to extend it very much further. I am against the prohibition to which I have referred.
Ms Beverley Hughes:
I accept that the right hon. and learned Gentleman is raising some valid issues that are difficult to weigh in the balance. In trying to weigh those issues, will he accept that the main function of the court is to establish the truth and to administer justice? If the ability of a witness and a victim to tell the truth and to give full evidence in court is jeopardised by being cross-examined by her alleged assailant, that is of essential interest to the court and should carry more weight than at present the right hon. and learned Gentleman is giving to it.
Mr. Hogg:
The answer to the hon. Lady's question is that I do not agree with the underlying assumption. The purpose of a criminal court is to ensure a fair trial, which is not quite the same as trying to determine the truth. The process of a criminal court is to ensure that a defendant is not convicted unless the case is proved beyond a reasonable doubt. That is slightly different from the process of determining the truth. In one sense, the phrase "the process of determining the truth" is more akin to the civil standard of proof--on the balance of probabilities--than the criminal standard. I return to the point that the purpose of the criminal court is to ensure that the defendant receives a fair trial, by which I mean that the defendant is not convicted unless the case is proven beyond a reasonable doubt.
I move on to the clause 40 point. I do not support the proposal that would restrict the ability of legal representatives to cross-examine the complainant about sexual behaviour. On that point, I disagree with the hon. Members for Basildon and for Leyton and Wanstead. We need to keep in mind that there is already a restriction within the criminal law that is imposed by section 2 of the Sexual Offences (Amendment) Act 1976. In effect, that restriction prevents, without the leave of the judge, examination or cross-examination of the complainant as to sexual behaviour other than with the defendant. I believe that it is not necessary to extend the existing law or, to put it differently, I do not believe that the case has been made out.
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