| Previous Section | Index | Home Page |
Ms Beverley Hughes: Will the right hon. and learned Gentleman give way?
Mrs. Gorman: Will my right hon. and learned Friend give way?
Mr. Hogg: I shall give way to both hon. Ladies. First, however, I shall give way to the hon. Member for Stretford and Urmston (Ms Hughes).
Ms Hughes: Will the right hon. and learned Gentleman define promiscuous? Is there an absolute definition? If so, how should it be interpreted?
Mr. Hogg: If the evidence is that, in a particular case, the complainant in a casual way agreed to sex and there was evidence that, on many other occasions, she was inclined to do that with people she did not know well, that is a fact that should be before the jury. The jury might well conclude that, in the particular case, that is what happened.
Mrs. Gorman: Does my right hon. and learned Friend agree that, in other criminal prosecutions--for example, for assault or burglary--the crime of which the defendant is accused is dealt with in its own right? It is not linked to the history of the individual. Other aspects of his conduct are revealed only after sentence has been passed. Why, then, is a woman's history relevant to the case in point?
Mr. Hogg: My hon. Friend is muddling two principles. I am sorry to say that, as I do not wish to be unfair to her. She is speaking about the position of the defendant. As a general proposition, the antecedents of a defendant cannot be brought before a court, but as a general proposition, the antecedents of a witness other than the defendant can. The exception that is being argued for is an exception in favour of the complainant in sexual offences cases, which would take them out of the general pattern of the criminal law.
I have been arguing that there are cases involving consent where previous conduct is material, but there may also be other kinds of cases where it is material. For example, in a case where the complainant has undoubtedly had sexual intercourse within the relevant time frame and where there is forensic evidence to substantiate that, but the defendant asserts that it was not him but somebody else who had sexual contact, itmust be right to be able to adduce evidence by
cross-examination or otherwise to support that assertion. I accept that the Bill does not positively prevent that, but it makes it substantially more difficult.
Mr. Boateng
indicated dissent.
Mr. Hogg:
The Minister of State shakes his head and I disagree with him. The measure adds to the present law and makes that more difficult.
Mr. Boateng:
Will the right hon. and learned Gentleman explain how the issue of promiscuity is relevant to consent? Is he saying seriously to the House in this day and age that someone who is promiscuous does not have the right to say no?
Mr. Hogg:
As the Minister has some difficulty in accepting the proposition from me, perhaps he will accept it from the Lord Chief Justice. I quote from the Second Reading debate in the other place, in which the Lord Chief Justice said:
I shall touch on two other points which both relate to part II. Again, I make the point that the purpose of the criminal law is to be fair to defendants. We are in the business of ensuring that defendants get a fair trial. We must be extremely cautious before the House lends itself to a process that undermines the fairness of a trial.
I want to say a word about special measures and eligible witnesses. I understand full well the Government's concern--not an unworthy concern--to ensure that eligible witnesses as defined in the Bill can, in certain circumstances, receive special protection. I disagree with the hon. Member for Basildon who suggested that that should always be made available. On any view, it should be a matter for the discretion of the trial judge.
We should understand that special measures--for example, the erection of screens or an order requiring the court to be emptied can work to the prejudice of a defendant. Such orders can create an atmosphere that is prejudicial to the defence, because, by implication, they suggest to the jury that there is a risk of intimidation.
Video links are another example. I am not against all video links; there are cases in which they are appropriate. In many cases, however, they are not helpful. The immediacy of direct cross-examination is lacking. Hon. Members have only to reflect on how they watch the proceedings of the House on the television screens in their offices, and they will know that that lacks immediacy. Moreover, once the principle of video links is established, that emphasises the vulnerability or the sensitivity of the complainant or the witness. That may be appropriate in some cases, but we must not lose sight of the fact that the measures can work to the prejudice of a fair trial of the defendant.
I am not saying that we should not have the special measures; I am saying that, in Committee, that part of the Bill needs to be looked at critically from the perspective of the defendant. The Committee should ask itself whether the criteria should be more rigorously defined and whether the presumptions should be tilted against the party that makes the application for the special measures direction.
On video-recording of cross-examination, by definition, that cross-examination takes place before the trial. We are not talking about cross-examination through a live line, which the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) mentioned, which is also the subject of a special measures direction, but is different from what I talk about now.
It is a small point, but I hope that the House will keep it in mind. The Bill contemplates the possibility of cross-examination by a person other than the legal representative of the defendant. On the face of it, I find that difficult to countenance. The following point is much more important. I am glad to see that the Home Secretary is now present. It is always nice to see him, but it is particularly nice at this point. I was talking about cross-examination on a video before the trial, the point on which I intervened during his speech.
In principle, I am against that for the following reason. Until a case is under way, one has heard the evidence and seen the parties, it is extraordinarily difficult to be absolutely certain what the issues will be. The Home Secretary referred, fairly, to primary and secondary disclosure. That will sometimes make clear the relevant issues, but it will by no means always do so. I have been involved in many a case where I thought that point A would be the bull point, but it turned out to be largely irrelevant and what mattered was a different point. In the great majority of cases, that fact does not become apparent until the case has got under way and has been going for a while.
I accept that there are provisions in the Bill that enable further cross-examination to take place, but, as the Minister is aware, the criteria for allowing that further cross-examination is very tightly defined. There is no need for the provision, especially as there is the proviso in favour of the live link. It is positively undesirable. I hope that, in Committee, the provision will be struck out.
Ms Beverley Hughes (Stretford and Urmston):
I support the Bill in its entirety. I should like to speak on many of its aspects, but I intend to restrict my remarks to part II.
"The simple truth is that on an issue of whether a complainant consented to sexual relations with the defendant, the fact that the complainant has behaved promiscuously on other occasions outside the window of 24 hours before and after the commission of the offence may well--I emphasise 'may well'--be relevant."--[Official Report, House of Lords, 15 December 1998; Vol. 595, c. 1272.]
That is all that I am saying, and those are the words of no less a person than the Lord Chief Justice when the matter was debated in the other place, so the Minister had better be a bit chary of dismissing those views with the alacrity that he has shown.
| Next Section
| Index | Home Page |