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Earl Russell: My Lords, I support the amendment, to which I have put my name. The point of the first section of the amendment is the reversal of burden of proof where the defendant claims that the alleged victim consented. This is a very limited scope. The burden of proof still rests on the prosecution to prove that intercourse took place and that the victim did not consent. There is no change in that. The change in the burden of proof only arises when the man says, "I believe she consented".

Part of the problem that is being addressed in the amendment arises from the Morgan case, of which some of your Lordships may have heard. In the Morgan case, the victim's husband assured four of his military colleagues that his wife loved kinky sex, the rougher the better, and to take no notice of anything she said. The wife objected, to put it no higher. Because of what the husband had told them, the men concerned, the accused, took no notice. It was found on the existing law that they had a good ground for what they did.

Where a man claims that the woman consented, as my noble friend said, it is difficult to see into his mind. You cannot take his bare, unsupported word that he believed the woman consented. People have been known to believe most extraordinary things against the weight of the evidence. I think that it is quite fair to ask the man who says that, "Why did you believe that she consented?", and quite fair to require him to prove the contention he makes. That is as far as that goes.

The provision is in line with other areas of the law. Where a man is accused of intercourse with a girl under the age of consent, and he says that he believed she was over the age of consent, he has to show that he had good reason for believing that she was over the age of consent. The burden of proof similarly rests on him. Your Lordships may agree that it is quite right that the law is as it is in that respect.

Where a man is charged with bigamy, and where his defence is that he did not know he was committing bigamy, he did not know that the woman had a previous husband alive, in that case, similarly, I understand that the burden of proof rests on him. Your Lordships may agree that it is right that that is so.

The second part of the amendment applies only where the woman's previous sexual history is also put in issue. It is an amendment based on the principle of the level playing field. While I personally would prefer not to have the previous sexual history of either party taken in evidence, unless it was the sexual history of those two parties with each other, if it is to be taken in evidence at all there is a strong case for arguing that that should be on the basis of the level playing field.

The third plank of the amendment introduces anonymity not only for the woman but also the man. Again it is a level playing field amendment. Where you face a charge of this kind, the mere publicity is itself a severe penalty. You are recognised on buses. Your relations find out about the case from finding your face

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pictured on paper used to wrap kippers. These penalties are severe. The recognition may continue for years. It is a severe handicap to normal human relations. It is the contention of the amendment that that punishment should not be inflicted on those who are found innocent. If you are innocent you should not be punished. I think that that is only justice.

6.15 p.m.

Lord Ackner: My Lords, I may be entirely in error but it seems to me that the amendment overlooks Section 1(2) of the 1976 Act. It provides as follows:

    "It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed".

I should have thought that that makes perfectly good sense. One has the subjective test in relation to the knowledge and appreciation of the accused; and then one has drawn to the attention of members of the jury that in considering whether they believe his proposition that the woman consented to the sexual intercourse, reasonable grounds for such a belief is a matter to which they are to have regard. I should have thought that that was a satisfactory situation. It was the result of a committee set up especially to consider this matter, presided over by a highly experienced lady judge, Mrs. Justice Heilbron.

In regard to the second part, the same committee provided in Section 2(2) the prohibition on the cross-examination with regard to previous sexual history. But it provided a let-out in these terms:

    "The judge shall not give leave in pursuance of the preceding subsection for any evidence or question except on an application made to him in the absence of the jury by or on behalf of the defendant; and on such an application the judge shall give leave if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked".

It is only when the judge is satisfied that it would be unfair to the defendant that leave is given. And it would be unfair to the defendant if it went to the very core of his defence to bring out the material about the complainant's sexual history in particular with regard to him. The judge says to himself, "Is this necessary for the defence? If it is, then I will make a special order". Why on earth should that then result in an exception to one of the principal rules of criminal law, that an accused's character is not put before the jury? It can only be done on the basis that the defendant himself has so attacked the complainant that the exception applies, that when you attack the character of a prosecution witness then, for the sake of the level playing field, your own character is put before the jury.

But the defendant has ex hypothesi obtained the consent of the judge in order to put his defence forward. He is not allowed to put the defence forward on the basis of just going essentially to credibility. For instance, it might be said, "It is my defence that this woman and I have lived together for 10 years and that she is highly sexed," and whatever other characteristics she may have, "and this is what happened in truth and

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in fact". It penalises a defendant on the basis that if he puts forward this defence, then his sexual history can go in: evidence can be adduced that he has been convicted or charged with any offence listed in the second schedule.

Lord Goodhart: My Lords, will the noble and learned Lord accept that the position under Section 2(1) of the 1976 Act is that, in fact, leave is only needed when the sexual history that is sought to be brought in evidence is the sexual history of the woman's relationships with other men? So our amendment would not apply to a defendant who simply seeks to raise as an issue, as he is entitled to do without leave, the sexual history between himself and the complainant.

Lord Ackner: My Lords, the actual provision of Section 2(1) reads as follows:

    "If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial about any sexual experience of a complainant with a person other than that defendant".

Lord Goodhart: That is correct--

    "with a person other than that defendant".

Lord Ackner: My Lords, the permission to ask those questions, which can be achieved only on a separate application to the judge, is granted only if it would be unfair to the defendant to refuse to allow him to ask those questions. The unfairness could only be unfairness if the refusal meant that he could not properly put before the court his full defence.

So the proposition in this amendment is: "If you are going to be allowed to put forward your true defence, then you are going to have the entirety of your sexual character put in evidence, and everybody knows that, if that occurs, the inevitable result will be that you will be convicted". It would therefore mean that the accused would be inhibited from making the application which Parliament thought he would be perfectly entitled to make with the special leave of the judge. The consequences of getting that leave and taking advantage of it would be to let in--to his profound prejudice--the sexual activities which are covered by the amendment.

That is very unfair. There are many exceptions, rightly made, in regard to sexual offences, but to carry still further a special exception which can only do harm to the defendant seems to me to be going too far.

The Solicitor-General (Lord Falconer of Thoroton): My Lords, these amendments are a valiant attempt to deal with a number of difficult problems in the law on rape. The proposed new clause deals with various different aspects of the law, including the definition of consent which goes right to the heart of the law on rape. It is a question of immense significance. I do not think it is appropriate to be dealt with in a quickly tabled amendment this late in the course of the Bill.

Subsections (1) and (2) on the definition of consent seemed to be intended to make it easier to prove a charge

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of rape. The Government have been concerned for some considerable time at the low success rate in prosecutions for rape. We are taking action in relation to that and I shall turn to that in a moment. While I understand why the noble Lords opposite have proposed these changes, they do not provide a better way forward.

The offence of rape is committed where a man has sexual intercourse with another man or woman; and at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it. The effect of that, as the noble Lord, Lord Goodhart, pointed out, is that a man cannot be convicted of rape at present where he believes, even mistakenly, that the other is consenting, because if he had such a belief he cannot have intended to commit rape or have been reckless as to whether consent was given.

As the noble and learned Lord, Lord Ackner, pointed out, Section 1(2) of the Sexual Offences (Amendment) Act 1976 permits the jury to have regard to whether or not the grounds for his belief were reasonable, but only on the issue as to whether he believed that there was consent or was reckless as to whether or not there was consent.

The effect of what is proposed would be that, instead of the jury being asked about the accused's state of mind, it would be for the jury themselves to ask: "At the relevant time, did the defendant have reasonable grounds for believing that the person was consenting to sexual intercourse?" If he did not have reasonable grounds, then assume the other elements, and if in particular the commission of the sexual intercourse was proved, he would be guilty of rape.

This proposal is not simply a change to the burden of proof, as the noble Earl, Lord Russell, suggested, but would mark a fundamental change in the law on rape. At present a man can be convicted only if he has intercourse knowing or being reckless as to whether the alleged victim consented. The proposal would allow the jury to say subsequently that such a person did not have reasonable grounds for any actual belief that he had, and was therefore guilty.

I could not recommend such a change, well-intentioned though it is. Later this year the Government will have available the report of a major research study into the attrition rate in rape cases; namely, the difference between the number of complaints that are made of rape and at the end the number of convictions. The Government must first identify the specific problems of why rape cases fail, then attempt to deal with them rather than the approach adopted by the noble Lords' amendment to change the law fundamentally without the benefit of that detailed research and without consultation on this most controversial of subjects.

Turning to the other effects of the amendment, subsection 3(a) extends the restriction on cross- examination on a victim's previous sexual history, currently limited to rape, to other serious sexual offences, while the effect of subsection 3(b) is to allow in evidence, during a rape or sexual offence trial, details of a defendant's previous convictions or any charges--whether or not they resulted in conviction--previously laid against him for rape or sexual offences.

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As this House is aware, to take forward our manifesto commitment to provide greater protection to victims in rape and other serious sexual offences cases, we established in June last year an interdepartmental review of the way in which vulnerable or intimidated witnesses are treated in the criminal justice system. One of the important issues that group is examining is the law in respect of the cross-examination of victims about their previous sexual history in rape and serious sexual offence cases. The group is due to report to Ministers shortly; it has had its last meeting. One should wait for that report before proceeding on a change of the sort identified by those opposite.

The law governing the admission of evidence of previous convictions in criminal proceedings applies to all criminal offences and not just offences of rape. Therefore, it is important that this issue is considered in the wider context. Such a review is currently being undertaken by the Law Commission. This is recognised as an exceptionally complicated area of the law and I believe it is important that before we embark on any reform in this area the law is subjected to rigorous examination. We shall of course give further consideration to changes in both these areas in the light of the work of the Vulnerable or Intimidated Witnesses Review and the work of the Law Commission.

On subsection (4) of the amendment, relating to the anonymity of a defendant, I appreciate the concerns of those who have suffered from being identified as an alleged rapist. Society attaches a stigma to those accused of such an awful crime. I also recognise that those accused of such crimes once had anonymity. But that anonymity was removed. Why? First, because in a system of justice in which openness is a fundamental principle, defendants are generally named, even in the case of murder and other reprehensible crimes. Why should defendants in rape cases receive special protection?

Secondly, anonymity for the complainant is designed not only to protect victims from hurtful publicity for their sake but to encourage them to report crimes of rape to ensure that rapists do not escape prosecution. Such an argument does not apply to the accused where the arguments are about preventing personal hurt and embarrassment rather than improving justice.

Thirdly, an argument advanced for giving the complainant anonymity is that he should be treated on an equal basis to the victim. I do not believe that that is right. A defendant's equality lies with other accused persons and it is an acquittal which will give him public vindication.

Fourthly, anonymity might help to ease the pain suffered by defendants in rape cases, but even without all the publicity some defendants will doubtless experience suffering and trauma. Notwithstanding press anonymity, they may still be identified by their local communities.

Lastly on anonymity, subsection (4) would do nothing to help deal with the problems which subsections (1) and (2) seek to address--namely, the problems surrounding the low conviction rates for rape. Often the naming of the accused can be used to provide the public with information which they can pass on to the police. This can be vital in obtaining the necessary evidence against an accused.

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Attractive though this amendment may superficially seem, for the reasons given I urge your Lordships to reject it.

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