Select Committee on Home Affairs Appendices to the Minutes of Evidence


Memorandum submitted by the Criminal Bar Association


  This paper should be read in conjunction with the CBA response to the White Paper "Protecting the Public". We have targeted clauses that give us our greatest concerns.

Clause 1—Rape

  We accept the case for the abolition of the rule in DPP v Morgan (ie that a genuine but mistaken belief in consent should NOT afford a defence unless it is reasonable). However we feel it is important that the objective test should be tempered by the jury considering what a reasonable person "sharing the characteristics of the defendant" would have thought. See Clauses 1(3)(a) and 1(3)(6). Otherwise the objective test could be too harsh on the young and those with learning difficulties. It follows that a similar approach should be adopted in respect of other offences involving a reasonable person doubting whether "B" consents. [assault by penetration Clause3(3), sexual assault Clause 5(3), and causing a person to engage in a sexual act without consent Clause 7(3)]

  We feel that forced oral sex should NOT be included within the definition of rape. We recognise that it should be treated as an offence of the utmost seriousness, but we fear that to include it within the definition of rape may lead juries to be less likely to convict.

  Accordingly, we recommend that Clauses 1(1) and 2(1) be amended with the removal of the words "or mouth" whilst the offence of assault by penetration (Clauses 3 and 4) should be widened to include forced oral sex by adding the words "or mouth" to Clause 3(1)(a) and Clause 4(1)(a). It should be noted that this will not undervalue the seriousness of forced oral sex, as the offence of assault by penetration will carry a maximum of life imprisonment Clause 3(5).

Clause 17—Meeting a child following sexual grooming etc

  We are concerned that this new offence will penalise a state of mind "thought crime" without appropriate safeguards. As presently drafted the two earlier meetings or communications could be entirely innocent. Accordingly we suggest that Clause 17(1)(b) be amended to ensure that the defendant will have been found to have had the appropriate intention at the time on at least two earlier occasions as well as at the time of the meeting or travelling to the meeting. This should be achieved by inserting the words after at the time in Clause 17(1)(b) ". . . and at the time of at least two earlier occasions.".

Clause 33—Sexual activity with a person with a mental disorder or learning disability

  Concern was expressed at the potential width of "learning disability". Whilst "Mental Disorder" has the meaning given by Section 1 of the Mental Health Act 1983 Clause 81(4), the Bill does not seek to define "learning disability", save that by reference to it the complainant is unable to refuse. The complainant is deemed under the Bill to be unable to refuse if (a) he lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or possible consequence of what is being done, or for any other reason), or (b) he is unable to communicate such a choice to A. Arguably "for any other reason" in Clause 33(2)(a) should be deleted and the Bill should seek to define "learning disability".

Clause 48—Care workers: interpretation

  We felt that "regular face to face contact" could be improved by adding the words "or frequent" after regular. See Clause 48(2)(b).

Clause 52—Indecent photographs of persons aged 16 or 17

  We cannot see any justification for the exclusion of the words "or make" from Clause 52(3) in respect of the insertion list 1A(2).

Clause 74—Sexual activity in public

  There is enormous concern at the potential width of the offence in Clause 74(1). There is a danger that it will be used by unreasonable neighbours in neighbours' disputes. There is also a danger that excepting from the offence activity witnessed only by willing observers will encourage the development of "no-go" areas in public places, such as parks and open spaces, which are known to be used at certain times for sexual purposes and which as a result the rest of the public avoid. To minimise this effect we recommend that Clause 74(1)(d) be amended so as to delete the bracketed words relating to the "willing observer".

Clause 78—Presumptions about the absence of consent

  This clause spoils what is otherwise a well drafted Bill. It is a classic example of legislative overkill. It will be difficult to operate. It will make trial judges' directions to juries more complicated and more difficult to follow. It will make convictions less likely rather than more likely. Shifting burden of proof depending on whether assumptions are established will do nothing to clarify directions on consent.

  Clause 78(2) is unworkable. It could lead to a defendant being arbitrarily prevented from relying on truly relevant evidence. A complainant's evidence cannot be divided into two parts where it is only admissible for one purpose.

  Clause 78(2) lists a set of circumstances which if proved to exist would mean that a complainant is taken not to have consented unless sufficient evidence is adduced to raise an issue as to whether the complainant consented. We feel that this represents a step backwards. For example under the law as at present if a complainant is asleep, he or she cannot consent, and a submission through fear is not consent etc. Our recommendation would be for a more tightly drafted set of circumstances which if proved would mean that the complainant did not consent.

  We oppose the reversal of the burden of proof set out in Clause 78(1)(b). This is not simply an objection of principle. If the circumstances set out in Clause 78(3) are established, then clearly there will be a heavy evidential burden upon a defendant with regard to the mental element, particularly with the abolition of the rule in Morgan. It will not increase conviction rate and shifting burdens of proof depending on circumstances will just serve to confuse. The provision may not be compliant with ECHR, and, in any event, is an unnecessary complication for trial judges and juries.

Anonymity for defendants in sexual offences

  1.  Should there be an exception to the usual rules about the publication of the name of a suspect or defendant in cases involving allegations of sexual offending? At present, unless the case falls into another exception, there can be reporting of the name of a suspect from the time of arrest. This has lead to a number of cases, usually involving high profile men, where the publicity has been extensive and critical even though no charge or conviction follows. It is our view that there should be pre-trial protection from identification in the media for suspects and defendants.

  2.  The two obvious exceptions to the general rule are age of defendant or because another case is pending and publicity would prejudice a future trial.

  3.  The Contempt of Court Act 1981 is designed to control the media in all cases but it is frequently acknowledged that it fails to curb an increasingly powerful media who ignore the rules for commercial gain. In the last 10 years there has been a marked increase in the "tabloid" media's obsession with crimes involving sexual allegations. The Government has accepted that details of the Sex Offenders Register should not be made public because of the dangers of the public acting as vigilantes, often encouraged by media coverage. The reality is that the Law Officers are powerless in the face of wide publication by many newspapers, radio or television stations.

  4.  The Human Rights Act 1998 also affords some protection. Article 8 protects the right to privacy. It can be argued that the freedom of the press to publish the name of a suspect or defendant is paramount. But the protection of the identity of the suspect or defendant is a proportionate response to the problems of extensive press reporting. See R. v. A Local Authority and a Police Authority in the Midlands, ex p. L.M. [2000] 1 F.L.R. 612, QBD. Archbold 2003 16-110a.

  5.  Sexual offences already fall into a special category because complainants are given anonymity at all stages of the criminal process. This, of course, extends beyond conviction unless lifted voluntarily by the complainant. The reason for this anonymity is obvious: a complainant is entitled to be spared additional embarrassment over and above the trauma of the sexual assault itself.

  6.  It must follow that the stigma of a false allegation of the same type of crime can be just as harmful to a suspect or defendant falsely accused. If the allegation is proved then the media can have publish almost as it chooses.

  7.  Crimes of a sexual nature are often based upon a complaint and this does not require corroboration. Indeed, because of the fact that these crimes arise from private circumstances this is bound to be the case. The law and procedure has been amended in recent years to support the complainant's allegation because it has been felt by many that the conviction rate for sexual offences, especially rape, has been too low.

  8.  However, the concomitant of this change is the increased danger of the false allegation by a complainant which will only later be explored fully at trial and, if false, exposed. By then the damage has been done. There are few other crimes of this seriousness and sensitivity where the trial would proceed on such limited evidence. It is right that this should be the case but there should be a balanced response that protects the defendant up to the point when the allegation is proved.

  9.  Anonymity for defendants would be lifted following conviction or in special circumstances upon application to a Circuit Judge. It is our view that the publication of details leading to the identification of a suspect or defendant should be forbidden at any time before a conviction.

March 2003

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