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7.15 pm

I am not aware of any authority or previous ruling that has laid down that screens--which we may take to be a minimum protection--breach article 6 by acting as an impediment to effective cross-examination. As my hon. Friend the Minister will be fully aware, the European convention on human rights allows for a margin of appreciation in the interpretation of its provisions by signatory states. Some leading lawyers believe that that margin would allow the Home Secretary to permit screens in court under article 6. Has counsel's opinion been obtained on that issue? If so, what was the advice?

Given that the minimum of a screen as a special measure would not restrict a fair trial of the defendant, I would want the Government to go further even than they have by tabling amendment No. 5. I should like them to say that a screen would be the minimum that they would expect for a witness in a rape trial.

Guidance would need to be given to judges, to say that the minimum of a screen does not prevent other measures--such as clearing the court--from being offered, but that the screen should be regarded as a minimum protection and that, if the witness requests further protections, the court must give the matter serious thought.

The huge advantage of setting the automatic right to at least a screen would be that we could then offer potential witnesses some certainty. They could be told from day 1, when they walk into the police station to report the crime, that if the case went to court, they would not have to face the accused if they did not want to. An automatic right for complainants to be afforded such protection would be better for defendants, too. If in all cases the judge hasthe ultimate say over whether special measures are appropriate, so that particular measures are allowed only in specific cases, it may be difficult to prevent juries from forming the belief that there is something especially sinister about the defendant in a case where a special measure has been allowed. If there is an automatic right to special measures, juries can be advised that the use of the special measures has nothing to do with any special features of the case or of the defendant.

Undoubtedly, the law needs to give better protection to witnesses. Some victims of rape say that they cannot face even the prospect that they might have to face their

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attacker again in court, and that they would prefer to let the attacker go free than to risk going through that experience. Amendment No. 5 would obviously help those victims.

Does my hon. Friend the Minister believe that, if amendment No. 5 is passed and if sufficiently strong guidance is given to judges, he will be able to give men and women rape victims the assurance that they need to enable them to report crimes of rape and face going into the witness box?

I should like further clarification. In Committee, my hon. Friend the Minister confirmed that complainants would not usually attend pre-trial hearings, but that in rare situations, that could happen. I then asked how complainants would be protected at pre-trial hearings in the unlikely, but possible, event that both they and the defendant turned up in the same room. I was very pleased to hear in Committee that a judge would have the power to prevent a witness from having to be in the same room as the defendant in such situations. However, can my hon. Friend assure the House that he will give judges sufficiently strong guidance to ensure that they exercise that power when the witness wishes her or him to do so?

Will my hon. Friend assure the House that the protections that, rightly, he has included in clause 41 to restrict the use of sexual history evidence in trials can also be extended, via the guidance or via further legislation, to apply to pre-trial hearings, too, so that victims know with certainty that they will have all the protections that the Government envisage through all parts of the justice system? One reason why special measures are so necessary is that, sometimes in rape cases and all too often in the past, sexual history evidence has been brought into rape trials. It could have been thought that fewer victims would need special measures if the Bill had outlawed all inappropriate sexual history evidence.

However, many of us now accept that we cannot do everything that we had hoped for in the Bill in terms of limiting sexual history evidence, which makes screens and the strong presumption in favour of screens as proposed in amendment No. 5 even more crucial. The barrier to our making as much progress on the matter now as would be desirable is that the rules on the admissibility of evidence must be framed in the light of the definition ofrape contained in the Sexual Offences Act 1956. Understandably, we cannot have two inconsistent laws.

The strong presumption in favour of screens, as proposed in the amendment, will encourage rape victims to come forward. I welcome the moves to limit sexual history evidence, but they cannot give complainants the complete assurance that they will not subjected in court to humiliating or intimidating questions about their sexual history. Many women have described the experience of a trial in which they have had to go through their sexual history in intimate detail as a humiliation which made them feel as though they had been raped again.

We must recognise that however much witnesses are protected from unreasonable questioning about their sexual history, it is inevitable that, in many rape cases, witnesses will have to give intimate and detailed sexual evidence. That is bound to be the case when the defence is that intercourse did not take place. We should not forget, therefore, that the experience is bound to be traumatic and intrusive for the complainant. We are discussing ways in which that trauma and intrusion can be reduced, but it

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cannot be removed entirely.I have discussed with my hon. Friends the many police officers, lawyers and women's refuge workers who told us that if they had been raped, they would not take their case to court. Their testimony is eloquent.

The strong presumption in favour of special measures is relevant. Although the Bill goes some way towards reducing the admissibility of sexual history evidence, particularly in cases where the defence is arguing that the complainant consented, the Bill cannot rule out inappropriate sexual history in all rape trials. That cannot be done because the definition of rape currently on the statute book allows as a defence the argument that the defendant had an honest belief in consent, even if he now admits that the victim did not consent, or worse--that the defendant had an honest, but unreasonable belief in consent. It is incredible that such a defence should be available. We must try to make sensible laws about what constitutes reasonable evidence and appropriate special measures in a rape trial. On discovering the possible defence of an honest, but unreasonable belief that the victim consented, I felt rather like Alice steppingthrough the looking-glass and moving into a world of make-believe.

However, even for this defence, through the Bill, we have introduced restrictions on sexual history evidence. Those restrictions are that refusing to give such evidence could lead the jury to an unsafe conclusion, that the main purpose of the evidence must not be to undermine the victim's credibility, and that the evidence must relate to specific instances of sexual behaviour of the complainant. That is as far as we can go while such a ridiculous defence is available. That makes this amendment essential.

I should be interested to hear whether my hon. Friend the Minister believes that the Bill introduces further restrictions, in addition to those that I outlined. We wanted to reduce the horrific cases in which inappropriate sexual history is brought out in court and widely reported, which deters other victims from reporting rapes. In Committee, we discussed a case in which it was pointed out in court that in the past, the witness had had sex with an Asiatic, and that the accused happened to be an Asiatic, and another case in which the witness was reminded that she had had sex with a man older than herself who was of the same age as the defendant. It is understandable that complainants would want the court to be cleared if such evidence were presented.

Although such evidence will now be ruled irrelevant, it could be relevant if it related to specific instances of sexual behaviour and the defendant claimed an unreasonable, but honest belief that the complainant had consented. The defendant could argue that he believed stupidly, but honestly that because the complainant had had consensual sex with a similar person, she consented to sex with the defendant on the occasion in question. The Minister said in Committee that offensive and irrelevant questions should not be allowed in our courts, but under the Bill, it will still be possible to present similar evidence. That further emphasises the need for the amendment. The Bill is intended to overrule the Court of Appeal judgment in the case of Viola in 1982, which argued that a complainant's promiscuity was relevant to consent--a ridiculous judgment. The overruling would apply to consent, but not to belief in consent, as a defence. Hon. Members will agree that victims in such situations have a strong right to special measures.

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I should be delighted to hear from my hon. Friend the Minister that the Bill precludes specific instances of sexual history being brought out to justify cases such as the three to which I have referred, in which case victims might not have to ask for all the particular special measures that we are making available through the clause. If so, surely we are changing the law of evidence in anticipation of how we want the law to change. That is precisely what my hon. Friend told us in Committee that we cannot do. As long as the defence of unreasonable, but honest belief in consent remains, unreasonable evidence may be admitted, which makes special measures all the more important.

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