Examination of Witnesses (Questions 1-19)
TUESDAY 8 APRIL 2003
MR PETER
ROOK QC, MS
JAN BERRY,
MS CATHY
HALLORAN, MR
MICK AYERS
AND MS
JANET ARKINSTALL
Chairman
1. Good morning, ladies and gentlemen, and welcome.
This is the first of two sessions we are doing on the Sexual Offences
Bill. The witnesses represent quite a diverse range of interests
and therefore our questions will have to be targeted. It is not
necessary for all five of you, indeed I am sure you will not want
to, to reply to all the points. Could I ask each of the witnesses
first of all to identify themselves and the organisation they
represent starting with Cathy Halloran.
(Ms Halloran) I represent the Rape Crisis
Federation of Wales and England and the Campaign to End Rape.
The Rape Crisis Federation represents over 40 groups providing
direct support services to female survivors of rape and sexual
assault and one aspect of their work is to provide a national
voice for service users. The Campaign to End Rape is a coalition
of organisations and individuals which has lobbied on law reform
on sexual offences and is conducting a new awareness raising campaign
The Truth About Rape.
2. How are you funded?
(Ms Halloran) We are a charitable organisation.
(Mr Ayers) I am Mick Ayers and I am Chairman of the
Central Council for British Naturism which is the national federation
for naturism in Great Britain and I am also a member of the International
Naturism Federation based in Antwerp which is the supreme world
body for naturism covering some 36 countries; I am a member of
their six-person executive committee. My own background is as
a former trade union official for UNISON and a district councillor
for some 25 years. British Naturism represents naturism within
Great Britain: 125 clubs, 20,000 members and also, because of
the casual and holiday nature of naturism, recent polls suggest
that there are perhaps 2.5 million people practising naturism
in Great Britain as a holiday activity or as a way of life.
(Ms Berry) I am Jan Berry and I am the Chairman of
the Police Federation representing an increasing number of police
officers, 129,000. We obviously have a responsibility for the
welfare of those officers but importantly also the provision of
an efficient police service.
(Mr Rook) I am Chairman of the Criminal Bar Association
of England and Wales. We represent barristers who both prosecute
and defend. I am co-author of a legal textbook Rook and Ward
on Sexual Offences. For reasons which I am sure the Committee
will understand, I am currently having to do a third edition.
I was leading counsel in the House of Lords case on previous sexual
history, R v A.
(Ms Arkinstall) I am the Director of Criminal Justice
Policy at JUSTICE, which is a British based all party law reform
organisation.
3. We are going to start with Clause 1, honest
belief in consent on rape, and I will begin with a question to
Mr Rook. Why is the Criminal Bar Association opposed to extending
the offence of rape to include penetration of the mouth?
(Mr Rook) Whilst we feel that forced oral sex should
be recognised as an extremely serious offence, we feel that it
should not come within the definition of rape. We fear that, if
it is included within the definition of rape, juries might be
less inclined to convict of rape itself. We would submit that
the obvious solution is to include it in the new offence, which
of course carries a maximum of life, of penetration and I forget
the precise words. That would be a natural home for it and that
would recognise the serious nature of it.
4. What are you saying the penalty would be?
(Mr Rook) The penalty for that offence of assault
by penetration—I think it is Clauses 3 and 4—would
be life. So, you would be achieving the purpose of recognising
the seriousness of events without diluting the definition of rape.
5. So, no practical difference in terms of the
potential penalty?
(Mr Rook) No.
(Ms Halloran) I disagree. There is a danger, in separating
this off from the most serious offence which is rape, of it being
treated in courts as a lesser offence by the court process and
therefore being given a lesser penalty. We know that people who
experience this form of assault find it as degrading and traumatic
and horrific as penetration of the vagina or of the anus and we
therefore say that it should not be separated off from the offence
of rape.
6. What do you say to Mr Rook's point that it
might make juries less likely to convict?
(Ms Halloran) I doubt that juries would be less likely
to convict if there were a direction at the end of a trial by
the judge that forced sex includes forced penile penetration of
the mouth. Did forced penile penetration of the mouth occur in
this case? If so, then I suspect that juries would convict. This
is after all forced sex and juries understand forced sex should
be in the category of rape.
7. What do you say to the point that actually
it is academic because the penalties available are the same if
you include it just under "penetration" in Clauses 3
and 4?
(Ms Halloran) There is a danger that it will be considered
a less serious offence despite the maximum penalty being available.
If it is separated off from the offence of rape, there is a danger
that it will be perceived as less serious than the most serious
offence. In our view, it should be coupled with rape because it
is as degrading, as humiliating and as horrific an experience.
It may involve a different mind-set for people but that occurred
recently when legislation included in the offence of rape anal
penile penetration and, in my view, it will not be difficult for
juries to adapt to that mind-set. The law adapts to cultural changes
and we have a different perception now of rape in that rape can
now be rape of a male and rape of a female, it can be vaginal
and it can be anal. In my view, it should become that rape can
also be penile penetration of the mouth and it will be accepted
just as anal penetration has been accepted as rape.
8. Mr Rook, do you want to respond to that?
(Mr Rook) I think I have put forward my arguments.
9. So, it is just a straightforward disagreement,
really. Jan Berry, do you have any comments on that?
(Ms Berry) I do not think that I have anything to
add. I think the offence needs to be there and that what section
it comes under is not a real issue for us. It is the fact that
it is there. There is a danger that if it is included in a separate
section, it would not have the same bearing in a court. So, I
tend to agree with Cathy. I think that is a similar argument we
have used in other areas of our evidence particularly regarding
children. That is not to say that I think we should underestimate
offences committed against children. The point being made is that
if you separate the offences, it can make a lesser offence of
rape against an adult and we would not want to see that. Any offence
of rape is a very serious offence, particularly when we are trying
to support victims, which obviously we deal with firsthand.
(Ms Arkinstall) As a matter of logic, I would prefer
that it be in Clause 1 simply because that is dealing with penile
penetration of an orifice of a person. To put it in Clause 3,
as a matter of logic, that refers to penetration by something
else. So, in terms of clarifying the law, I think that it probably
is desirable that it be as it is. In terms of Mr Rook's point
about whether it would downgrade the offence in the eyes of the
public, I tend to agree but that, with education, in much the
same way as in anal rape, it would not be such a problem.
10. What do you say to Mr Rook's point that
a jury might be less likely to convict?
(Ms Arkinstall) I think that with education, with
proper directions and with the stress that rape is actually an
offence involving penetration of an orifice by the penis, I do
not think that that would necessarily be such a great issue. I
do not think it is a huge issue and I think that Mr Rook's point
about the penalty being the same is important.
11. So, Mr Rook, not a huge issue?
(Mr Rook) No. In the grand scheme of things, not a
huge issue.
12. Shall we move to honest belief in consent
which I think is a bigger issue. Janet Arkinstall, I think JUSTICE
is split down the middle on this; is that right?
(Ms Arkinstall) Yes. I am maintaining my position
on the fence.
13. In that case, perhaps you could impartially
set it out to our Committee.
(Ms Arkinstall) It is an interesting thing. It is
one thing that I embarked upon thinking that it was an incredibly
important issue and I still believe it is but, in a sense, in
the great scheme of things and in terms of this Bill, it perhaps
is not and that was the view that I came to in the end which was
quite odd having written a paper about it. Essentially, the position
at the moment, as you may be aware, is that where a person has
a belief that somebody is consenting to have intercourse with
them, they do not have the requisite guilty mind that is required
and that can be an unreasonable belief and that is what the case
of Morgan found where indeed there was an incredibly unreasonable
belief on the part of the accused in that case. That caused controversy
at the time and continues to cause controversy because it would
seem that it perpetuates myths that some men have that women actually
mean to say "yes" when they say "no" to intercourse.
What the Bill purports to do is to completely take away the mens
rea element of the offence, if you like, so that it can be
committed negligently and that happens in subclause 3 where the
test of a reasonable person—not a reasonable belief but
a reasonable person—is applied to the mental state of the
accused at the time. That is a very radical step in terms of substantive
criminal law because most serious offences, as we know, require
that the Crown prove against an individual that they actually
had the intention of committing that offence. I was perhaps tasked
with the job of finding a middle way, if you like, where the unreasonableness
of the belief is gone. There has to be some sort of reasonableness
involved but does not perhaps involve the reasonable person test
which actually, in various other areas of the law, has caused
enormous problems. The obvious question is, which reasonable person
are we talking about? Other countries have grappled with this
problem as my paper explains and the Canadian system, which was
the one which the Sexual Offences Review decided it quite liked,
was to maintain the defence in order that it is not completely
objectified but limit the circumstances in which it can be used.
You would not be able to use the defence if you were involuntarily
intoxicated, if you were reckless or did not care less as to consent
or in circumstances where the accused had not taken reasonable
steps to ascertain whether or not there was consent. That last
one is the major change. It sort of puts an onus on the person
who is initiating a sexual encounter to take some sort of care.
When you think about it, at the moment, if you imagined a situation
where it is not a stranger-rape case, it might be a marital-rape
case, people who are known to each other, where the jury accept
that there was no consent but the accused is saying, "I believe
that she was consenting", the most obvious question that
any prosecutor is going to ask an accused when they get into a
witness box, as they would normally do in that situation because
they have an evidential burden to overcome, is, "Why did
you think that this person was consenting? Did you ask?"
I am sure that is what would happen in the courts today. It may
then be that it is not such a radical change to put that in legislation.
It would have the benefit of creating a situation in which there
can be community education as to what is acceptable and what is
not and, with proper directions from the trial judge, it may indeed
work. That was one solution. It does go some way to objectifying
the test, but perhaps not as far as what is in the Bill does.
14. Mr Rook, what is the evidence for the proposition
that the existing test is not working or is causing problems?
(Mr Rook) I am not sure that I can answer as to what
the evidence is. There is a general feeling that it should not
be an entirely subjective test. Criminal lawyers are divided on
this issue. The Criminal Bar Association however is firmly in
favour of changing from the rule in Morgan to not a wholly
objective test but what one might call a subjective objective
test. It seems to us that, if you had a wholly objective test,
then there is a great risk, if you have it judged by some standard
external for the defendant, the reasonable man, that, in a case,
say, where the defendant has a learning difficulty or is simply
very young, if they are judged by some objective reasonable man
standard, then there may be a risk of injustice in that sort of
case. So, we would contend that the answer is to abolish the rule
in Morgan but to have a test where the characteristics
of a particular defendant are taken into account when judging
reasonableness. There is a precedent for this in respect of the
defence of provocation and manslaughter. We support the amendment
that was put forward by Lord Thomas of Gresford on 31 March that
"sexual violation by rape is where A penetrates the vagina"
etc "without the consent of B and without a reasonably held
belief." That, to us, seems a very neat solution because
you are looking at reasonableness but in the context of the particular
defendant.
15. Would the change as proposed not result
in more convictions?
(Mr Rook) That is a very interesting question. Of
course, if one simply had the stark objective test, some juries
might find difficulty with it. I would have thought that if it
were tempered in the way I have suggested, the short answer is
yes.
16. Many more convictions or . . . ?
(Mr Rook) I come from the camp where we believe that
vigorous investigation and good interviewing is going to achieve
more convictions rather than actually changing the law.
17. At the back of all this lies the belief
that, for whatever reason, the chances of an alleged rapist being
found not guilty are much higher than almost any other category
of serious offence.
(Mr Rook) That arises for a number of different reasons.
As we all know, rape trials, tend to be what the Americans call
a swearing match, one word against another. It is extremely difficult
for the CPS to form a value judgment as to the strength of the
case and cases go ahead and it may depend on to what extent there
is supporting evidence and so on. I am sure it is an area the
Committee is familiar with.
18. Obviously the argument about consent can
only be had where the defendant is known to the victim. What proportion
of cases involve people who know each other rather than stranger
rape where obviously consent is very unlikely indeed?
(Mr Rook) I cannot give you a precise figure. Obviously
far more cases are brought nowadays where parties know each other
and, yes, that is probably one of the reasons why there is a high
acquittal rate because a jury may be less inclined to convict
in those cases.
(Ms Halloran) We believe that the objective test in
the Bill should stand. We think it should be introduced because
it provides a fairer approach and we are taking into account the
perspective of the person who has experienced rape as well as
the perspective of the defendant. We also think that it is likely
to produce more convictions where a conviction is warranted. We
think that, on an objective analysis, the honest belief defence
probably leads to acquittals where there should have been convictions
although we do not have any specific data to show that. It is
very difficult to show why juries acquit or convict because there
is currently no analysis of that. However, we are not in favour
of including in statute specific characteristics of the defendant.
We say that the objective test, as it stands in the Bill at the
moment, invites the jury to consider the defendant's reasonably-held
belief and all the circumstances in which he found himself holding
that belief and it is our view that a jury will be able to take
account of particular characteristics of the defendant that are
relevant. So, we do not think that it need be incorporated into
statute that certain characteristics of the defendant must be
taken into account.
19. I notice that in the Lords debate on this,
Ann Mallalieu said that she did not think in practice it would
make much difference; do you think it would?
(Ms Halloran) I am sorry, what would not make much
difference?
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