Chairman
Examination of Witnesses (Questions 126-139)
TUESDAY 29 APRIL 2003
HILARY BENN
MP, MS MICHELLE
DYSON, MS
ANN COLLIER
AND MR
DAVID FORD
126. Minister, welcome. I think this is your
first meeting.
(Hilary Benn) It is.
127. Can you introduce your colleagues, please.
(Hilary Benn) Can I introduce David Ford on my left
who leads on sex offenders and the orders; on my right is Ann
Collier who leads on sex offences; and Michelle Dyson from the
Home Office Legal Affairs Branch.
Chairman: Thank you very much. This is
the second of only two sessions we are doing on this Bill. We
took some oral evidence from interested parties just before Easter
and we are going to concentrate on the detail of three or four
issues of main public concern in the Bill which I think will be
familiar to you, starting with rape and consent and Bridget Prentice
is going to lead on this.
Bridget Prentice
128. I am going to begin with consent and ask
you, particularly in light of the debate in the House of Lords,
why you are devising a two-staged test for belief in consent and
whether you think that this is going to be satisfactory in terms
of the way that a case will be conducted.
(Hilary Benn) We certainly do think it will be satisfactory
as far as the way a case is to be conducted. We certainly feel
that to introduce a test of a reasonableness on the issue of consent
is a change that does need to be made within the law because it
cannot be right—and I state this very firmly—that
currently no crime is committed where a woman is forced to have
sex against her will by a man who convinces the court that he
honestly interpreted whatever happened as consent to sex however
unreasonable such a belief might be. As a starting point, the
Government's view is that that cannot be right and that therefore
it is appropriate that there should be a test of reasonableness.
Obviously I am aware from your previous evidence session and from
the debates in the other place that there has been a lot of discussion
about the nature of that test but, if it would be helpful, I could
go on to say why I think that what is currently contained within
the Bill provides a reasonable test of reasonableness, if I can
put it in that way.
Chairman
129. Yes.
(Hilary Benn) There has clearly been a lot of debate
about a reasonable person and also about what would be the characteristics
of a particular defendant. A lot of that debate has focused on
that. If you look at the wording of subsection (3), we believe
that it provides the jury with sufficient flexibility to look
at particular characteristics where they are relevant in all the
circumstances and I would stress the words "in all the circumstances"
that are to be found in subsection (3)(b) because I think that
does provide the flexibility that the jury may require and it
is the reason why we do not think that it would be sensible to
make provision in the Bill for a test that would require the jury
to look at the particular characteristics of each individual defendant.
It may be relevant. An example would be the age of a defendant.
It may be relevant as far as a defendant who has a learning disability
is concerned. In other circumstances, it may not. We think that
the wording "a reasonable person would consider sufficient
in all the circumstances"—and this of course is applied
when there is doubt as to whether the complainant did in fact
consent—would allow the jury—and in the end we must
trust the jury and the judges to give sensible directions—to
take such characteristics as were appropriate into account without
the law saying that, in all circumstances, for all people, that
is what juries must seek to do. We think it gets the balance right
in this area.
Bridget Prentice
130. Would it not have been simpler to ask whether
the defendant's belief was reasonably held in all the circumstances?
Would that not have been a more simpler and straightforward way?
(Hilary Benn) We obviously thought about that. In
truth, in the end, we feel that these are two different ways of
achieving the same end and I personally find it hard to see in
what circumstances it would be likely to produce a different result.
I think it is a different way of achieving that same objective.
131. You appear now to be confident that if
the defendant's belief of consent was raised at the trial, the
jury could consider those individual characteristics of the defendant,
for example the learning disability. Are you confident that the
present wording covers that and that there is no need for an amendment
to say that they have to look at a reasonable person sharing the
characteristics of the defendant?
(Hilary Benn) Yes, I think it does for the reasons
I sought to outline a moment ago, that a reasonable person would
consider it sufficient in all the circumstances and, as you will
of course be aware, the case law on provocation has developed
over time and that too has made it clear that those kinds of considerations
can be brought into play in reaching a decision. On reflection
and, as I say, having thought about this very carefully, we think
that this will provide the flexibility that is necessary. I think
those are two very strong examples, that is youth and learning
disability and there may be others, but it would not apply in
every case and if one combines what subsection (3)(b) says with,
in the end, the commonsense of the jury and sensible direction
by the judge, we think that this will provide what is required
in order to meet the concerns that have been raised about this.
132. When I was speaking about the conduct of
the case, are you concerned about a judge's ability to give as
simple a direction as possible and is there not a chance that,
with the present wording, a judge's directions may have to be
more complicated than you would otherwise want them to be?
(Hilary Benn) I do not think so. Clearly there is
a process to be gone through. The prosecution has to establish
that sexual activity took place and that the complainant did not
consent, and then that a reasonable person would, in all the circumstances,
doubt whether the complainant consented because one has to test
what the complainant says against what the defendant says, and
then to ask whether the defendant acted in a way that a reasonable
person would consider sufficient or insufficient to resolve such
doubt. I do not think that is a particularly difficult process
to go through and, in the end, as we know in such cases, it will
come down to the jury judging the facts of the particular case
and it is often, as we know when dealing with rape cases, one
person's description of what occurred as opposed to another person's
description of what occurred in the circumstances and the jury
has to weigh all of those things in deciding in the end whether
the case is proved beyond a reasonable doubt. So, I do not think
it will be difficult. I realise that this is a new approach and
that people will look at a new approach and think, we are not
quite sure how that is going to work. We have of course tried
to simplify the process in response to representations that have
been made when we come to the presumptions by taking out the evidential
burden in relation to lack of consent because I think we did accept,
on reflection, that that introduced a complication that was not
in fact necessary because it was very easy to rebut it, i.e. that
the defendant could take the stand and say, "Actually, I
thought she was consenting." I think this will work for the
reasons that I have sought to outline.
133. How do you think the Bill will address
the problem of low conviction rates for rape because Lord Falconer
in the Standing Committee gave figures that showed that with the
defendants who appear at trial, just over 40% were found guilty,
as opposed to over 70% in the general overall rate of crown court
cases. That is quite a startling figure. How do you think you
are going to succeed in this Bill in ensuring that cases of rape
that are brought to trial will be on a par with other criminal
cases?
(Hilary Benn) Clearly the two significant changes
are firstly the test of reasonableness which we have just been
discussing and that is a significant change, and the second is
the presumptions which are really a guide to the jury and, in
the circumstances of the conclusive presumptions that consent
was not present and we may come onto those, we are pretty clear,
though the other circumstances which Setting the Boundaries
looked at—and we did not share the view of Setting
the Boundaries that, in all of those cases, you could conclusively
say, without giving the defendant any opportunity to rebut that
presumption that consent was not present—in the list of
examples, violence or fear of violence against the complainant
or someone else, unlawful detention, whether they were asleep
or unconscious, or because of a physical disability the complainant
would not have been able to communicate consent to sexual activity.
In many ways, that reflects case law, but it does provide specific
guidance and direction to the jury and it then places the onus,
in those circumstances, on the defendant to say that notwithstanding
the second list to which I have just referred, consent was present.
Those are really the two significant changes. The background to
all of this, as you will know of course, is that the conviction
rate in rape cases has fallen from about 25% to currently I think
I am right in saying about 7%. In the end, what will happen in
each individual case is of course going to depend on the facts
of the case, the circumstances and how the jury weigh the evidence,
but we think those are two changes that are worth making in the
interests, firstly, of applying a reasonableness test because
we do not see why a complainant should suffer the penalty in effect
of having to experience sex against their will when the defendant
in those circumstances has an honest but an unreasonable belief
and that is why we want to make that change because we think it
is appropriate and, secondly, we think that the presumptions we
are putting forward will offer helpful guidance to the jury in
what is, I think we all recognise, a difficult task of weighing
the evidence in such cases because so often it depends on one
person's description of what occurred as opposed to another person's
description of what occurred.
134. Do you have any indication as to whether
removing the honest but unreasonable belief that a defendant may
have at the moment to the two-stage reasonableness test will increase
the number of complaints? Do you think there will be more women
coming forward with rape cases if the law is changed in the belief
for them that the law will be more reasonable to them than it
is at the moment?
(Hilary Benn) In all honesty, I think it is very difficult
to give an answer to that question. What I would hope is that
the changes which the Bill is proposing to make will give greater
confidence to those who are going to bring forward complaints
about the way in which the legal system is going to deal with
those and consider the cases. If one looks back historically in
relation to rape cases, we have seen a very considerable change
over time in the approach: the way in which the police deal with
complaints and the way in which women are received. Frankly, there
has been a transformation compared with that we saw very graphically
in the documentary on the Thames Valley Police some years ago
which gave rise initially to concern about the way in which rape
victims were being treated. So, there has been a big step forward
and I think that is reflected in the fact that more cases have
come forward where the complainant and the defendant are known
to each other and that certainly is reflected in the statistics.
I think it is hard to put a figure on what one thinks would happen
but I hope that people would look at the provisions in the Bill
and think that those are reasonable and sensible changes to make
and that they will add to a sense of confidence that the criminal
justice system will deal with such complaints properly and that
is what we are seeking to do.
Mrs Dean
135. Just on that issue, there were 9,008 recorded
rapes and in only 40% of those cases did someone appear for trial.
So, not only is the conviction rate low but the actual numbers
going to trial is very low as well. Is there anything in the Bill
that will help that?
(Hilary Benn) The Crown Prosecution Service in rape
cases, as in all others, has to look at the evidence and apply
the two tests which we know they do when taking decisions about
whether to bring a prosecution. As I think Mr Rook said to you
when he gave evidence in your first session—and I agree
with him—it is the gathering of the evidence and the presentation
of the case that is really very important to making sure that
prosecutions are successful in cases where the evidence is sufficient
to prove beyond a reasonable doubt that rape has occurred. I do
hope that these two changes which we are going to make will assist
in that process, but one can never escape from the fact that,
in the end, it will come down to the quality of the evidence and
how the jury then weighs it in the difficult task that they have
of reaching a judgment in rape cases. We are trying to assist
and we are certainly trying to give greater confidence to complainants
and to shift the balance in the direction of a complainant in
particular by applying the reasonableness test because we do not
think, which is the point at which I started, it is acceptable
for someone to have a belief which would be regarded by anybody
or a reasonable person as being unreasonable. We do not think
that is right. That is a significant change.
Chairman
136. Why do you think that the conviction rate
has fallen so dramatically between 1979 and 2000? According to
the figures we have here, a 32% conviction rate in 1979 and then
steadily falling to the point where it is perhaps 5.8% in 2001.
Certainly 8% in 2000. Yet, as you say, the police have greatly
improved their treatment of alleged rape victims.
(Hilary Benn) In part, that is of course very difficult
to answer because we do not know—there is no provision for
any research into why juries reach decisions in particular cases—what
the sum total is.
137. A matter that we will be addressing in
due course.
(Hilary Benn) Indeed and which we have discussed before.
We do not know what the reasons were for the individual decision
and therefore it is very hard to know what the sum total is. I
would however say that I think the greater reporting of rapes
between individuals who know each other personally—and my
colleagues may want to comment on this—must be a factor
because there the jury is having to weigh up, as I say, one person's
description of what occurred as opposed to another person's description
of what occurred between two people who clearly know each other
and that is very different from circumstances in which somebody
is raped by somebody they do not know.
(Ms Collier) I think the actual number of people convicted
of rape has remained the same from year to year but the number
of rapes reported has gone up very considerably, so the rate of
conviction is lower than it was. Of course, the question of DNA
means that in stranger rapes whereas previously people used to
say, "It wasn't me", now very often there is forensic
evidence which demonstrates that. A large proportion of cases
coming to courts are much more likely to be those where the individuals
knew each other to some extent and that poses particular problems
for the jury in taking a decision.
138. Would it include cases where the complainant
withdraws the allegation?
(Ms Collier) I think the figure relates to the number
of reported rapes and the number of convictions. I think that
someone who reports a rape and then withdraws the allegation would
be included in those figures.
139. It is still a remarkable and consistent
fall. With matters such as advances in DNA, one would expect the
figures to rise slightly but they are not doing so.
(Ms Collier) No, but the allegation very often is
not that sex did not take place but that it was not consensual.
Chairman: Thank you. We will turn now
to consent and presumptions against consent, which is Clauses
77 and 78, and Mr Clappison has some questions.
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