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Mr. Llwyd: A defence of that nature--the subjective test--exists in relation to many other offences. It is nothing new, it is not peculiar to this offence and it does not seem to create any injustice in any other context.
Ms Drown: We are particularly concerned about the attrition rate in rape cases and the fact that so many vulnerable people will not come forward because of the sort of evidence that has been brought forward in the past.
I acknowledge that the Government are tackling the larger problem by reviewing the definition of rape. That is desperately needed, because we will not be able to give women victims confidence that the law will always protect them until unreasonable belief in consent is removed as a defence from the law of the land. For that reason, special measures are even more necessary, although in a sense we are putting the cart before the horse by considering special measures and evidence first rather than the offences.
The problem with unreasonable belief in consent is not the only reason why we need those special measures. Even though there are special protections in clause 41, there is still a need for special measures, such as clearing the court or being able to give evidence from behind a screen. Under subsection (3)(b), a person might have to talk about
In Committee, the Minister gave the example that it would be relevant to know that a couple had been seen kissing in a doorway or on a park bench--or, to take another example, that they had had consensual sex--an hour before the alleged incident took place. However, we were not given an example of behaviour with anyone other than the complainant which would be relevant to
consent, so should not the Government be considering that as at least an added restriction to subsection (3)(b)? Can they justify subsection (3)(c)(ii), under which any previous, strikingly similar sexual history is relevant to consent?
We need further scrutiny of these issues. The Government have gone a long way towards limiting sexual history evidence and providing better protection for rape victims. Nevertheless, until we review current sexual offences, we shall not be able to give proper protection to women and men victims of rape. The Government need to ensure that the sexual offences review concludes as soon as possible, and to get rid of the honest, but unreasonable belief in consent defence. Then we need to return to these clauses, and ensure that all irrelevant sexual history is excluded from trial and that victims can be guaranteed special measures protections that they request.
Mr. Bob Russell:
The amendments are to be welcomed. If I may, I shall draw the Minister's attention to the fifth sitting of the Committee when I asked:
Lorna Fitzsimons:
I wish to put on record how important this amendment is and how welcome the Government's new approach has been, in particular that of the Minister and his ministerial team. He has been open to people like myself with no legal background whatever and has helped us understand the problems in other bits of the law that we, as interested parties, face--specifically in the application of special measures. We acknowledge that the Government recognise the special needs of the most vulnerable people, to which special measures he is attending, and realise that we cannot do everything in this Bill.
The achievement of the women on the Committee needs to be put on record. They and the ministerial team have been working round the problems of our awful legal system where witnesses do not count because what matters is what can be proved in a court of law. Ordinary people cannot understand it. We have pushed back the boundaries.
We need to look at the review of sexual offences and other bits of the law, such as the definition of belief. I welcome the Government's approach and believe that it will achieve a lot for the most vulnerable whose voice is not heard at present.
Mr. Boateng:
I thank my hon. Friend the Member for Rochdale (Lorna Fitzsimons) for those kind remarks and echo them in relation to the Bill team who have been responsible for giving us the back-up that they have on these amendments and responding to the points made by hon. Members on both sides of the Committee during the debate.
It has been important, and it has guided our work as a Bill Committee, to determine that the courts should be required to put at the heart of their consideration of the matters before them the needs and views of individual witnesses, taken on board and understood in detail, in terms of the court determining the appropriate response to make sure that witnesses can give of their best evidence. This is all about ensuring that witnesses give of their best evidence because it is when witnesses have been able to present that best evidence to the court and the jury have had an opportunity to understand and appreciate it that the interests of justice are most likely to be served. The interests of justice are best served by our addressing the causes of attrition in a way that is based on research and developing best practice, and ensuring both through primary legislation and guidance to the court how best to give complainants the confidence and reassurance that they so desperately need to go forward with these prosecutions. Hence it is important to ensure that a menu of measures is available to the courts, so that they can consider which one will best meet a particular witness's needs. We intend to proceed down that route, rather than impose an artificial norm to be followed unless a witness protests.
Some rape complainants may find a screen helpful. In other cases, the court may decide that the witness should be kept out of the court altogether so as to be able to give of their best evidence, and that a video or live link would be better. In those cases, rather than a screen, the first thing the court should consider is a video or live link. Having taken into account the needs of the witness in some detail in the context of what is occurring in the court, the judge should be able to put those special measures in place.
The amendments ensure that sex offence complainants have confidence that they will get the understanding of the court to which they are entitled, and we must back that up with guidance. I can assure my hon. Friend the Member for South Swindon (Ms Drown) that guidance will be forthcoming: it will be clear and focused on the needs of witnesses to enable them to give of their best evidence.
The Government have heard the representations of the hon. Member for Colchester (Mr. Russell) and those of my hon. Friends in Committee, which is why we have come to this conclusion. We believe that it is important for the courts to retain proper control of how evidence is given at trial, and to strike a balance between the needs of the witnesses and the interests of a fair trial. That is necessary to accord with our European Court of Human Rights obligations. In response to my hon. Friend the Member for South Swindon, we are quite satisfied that the measures that we are introducing are entirely in
accordance with our ECHR obligations. The court will be able to consider the views of all parties, including the party calling the witness, who may take a different view from that of the witness. Having borne in mind the totality of all the circumstances, it will be able to come to a proper conclusion.
In her wide-ranging speech, my hon. Friend the Member for South Swindon raised the wider issues around consent and belief in consent. I hear what she says, and note her vigorous critique of the law of rape as it now stands. There will be varying views in the House about how best to constitute the offence of rape. I am glad to say that the Government are determined to take an inclusive approach by reaching out and giving everyone an opportunity to make representations, hence the importance of the sex offences review. I am delighted that so many hon. Members availed themselves of the opportunity that I gave them earlier this week to attend that seminar, and I am grateful to them for doing so. There will need to be more debate and discussion.
Amendment agreed to.
Amendment made: No. 5, in page 14, line 2, leave out from 'offence' to end of line 5 and insert
"sexual behaviour . . . at or about the same time as the event",
which makes special measures necessary. We need to consider whether that is the best way of protecting witnesses. It has been suggested that we should use special measures rather than look in more detail at sexual history, but we should look in more detail at the root of the issues relating to sexual history and consider whether we are doing all we can to make sure that guilty people are brought to trial. For example, clause 41(3)(b) concerns anything that happened around the time of the event and whether such events are relevant to consent, which is what the Government would argue. All those things could be brought in under rebuttal, which few people have mentioned, or under a restriction that is used in many other countries: sexual behaviour evidence should be limited to that between the defendant and the complainant.
"Would it not be to the advantage of all concerned if, when the victim requested special measures, they were granted? Otherwise, the victim might well have to go through the equivalent of a pre-trial hearing."--[Official Report, Standing Committee E, 17 June 1999, c.121.]
In reply the Minister said "No" and explained that answer. Do I now understand that his answer to my request of last month is now yes?
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