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Lord Goodhart: My Lords, as I indicated in my speech on the previous amendment, my party now supports the amendment just moved by the noble Baroness, Lady Anelay. It does not necessarily have the unqualified support of all my noble friends but it has my support and I encourage the Government to accept it. The jurisprudence of the European Court of Human Rights makes it clear that a restriction of this kind on the rights of a defendant in person does not contravene the European Convention on Human Rights. There have been a number of cases over the past two or three years in which the rights of a defendant in person have been abused.
It is in any event absolutely clear that anyone who is charged with an offence as serious as rape is either deeply misguided or malicious if he decides to defend himself. It is essential that legal aid should be provided. I take it that that is implicit in the amendment and that legal aid will be provided to any defendant who is denied the right to defend himself, except in the very exceptional case where the defendant is sufficiently rich to be able to afford to pay his own legal expenses. In those circumstances, we believe that this amendment is justified. There are other matters that can be added to it. There is a possibility that if a defendant absolutely refuses to instruct counsel to appear for him the judge may be able to appoint an amicus curiae to examine the complainant and put the questions that can properly be put to her. The principle underlying this amendment is one that I fully support. I hope that the Government will see fit to accept the principle if not the precise wording.
Lord Ackner: My Lords, before the noble Lord sits down, perhaps he can assist me in regard to Article 6(3)(d) of the European Convention on Human Rights. That provision gives to everyone who is charged with a criminal offence the right to examine, or have examined, witnesses against him. I can find nothing in the convention that in any way prohibits a person from acting on his own behalf. There is nothing to oblige him to accept lawyers to act for him. Can the noble Lord inform the House of the jurisprudence of the European Court of Human Rights that supports what is proposed in the amendment, which would otherwise breach Article 6(3)(d)?
Lord Goodhart: My Lords, there is a decision of the European Court of Human Rights which states specifically that the defendant does not necessarily have the right to appear in person provided that he is able to instruct a lawyer, or is provided with the finance to do
Lord Monson: My Lords, I was not present when this matter was debated at Committee stage, so I apologise if the argument that I am about to advance has already been made. Although the status quo is on occasion unsatisfactory and unfair to the victim, one wonders whether this amendment tilts the balance a little too far the other way. I note that some of the press shares that view. A man who is convicted of rape is certain to spend a long time in prison even if the rape is non-violent or involves a last-minute change of mind on the part of the victim. Therefore, it is extremely important to ensure that the conviction is 100 per cent. safe. Surely some compromise can be found to permit the trial judge to intervene much more rapidly and decisively when the cross-examination by the defendant becomes aggressive and offensive.
Viscount Tenby: My Lords, I rise to support the amendment very ably moved by the noble Baroness, Lady Anelay. In recent years the country has been disturbed by the spectacle of defendants in rape cases conducting their own defence and subjecting the victims to prolonged cross-examination, probably often for reasons of sexual gratification. I understand very well the strong feeling among practitioners in the law so admirably expressed by my noble and learned friend Lord Ackner about the right of a defendant to conduct the cross-examination of the alleged victim. However, it is the duty of the presiding judge to ensure that matters do not get out of hand. Perhaps that is what has gone wrong in the past. Nevertheless, I too have understood from the media that something is to be done about it, possibly in another criminal justice Bill next year. But if even one victim suffers in this way in the intervening period it is surely one too many. I beg the noble Lord the Minister to look at the matter again with his customary compassion and respond favourably to this amendment.
Lord Lane: My Lords, there is a dilemma here, is there not? On the one hand it is intolerable that defendants should be allowed to cross-examine rape victims interminably over hours and sometimes days. Recent examples have been paraded before us. On the other hand, if it is by any means possible, a defendant should always be allowed to represent himself and conduct his own case and should not be forced, if he can be, to accept legal representation.
Is there a way out of this dilemma? I suggest that there is. It appears to have been overlooked by judges and others that it is the judge at trial who is in charge of the case. It is his task to see that justice is done and that the proceedings are conducted in fairness to both sides. Plainly, cross-examination of the kind that we have read about is neither just nor fair. Accordingly, it is the judge's right and duty to see that such cross-examination and behaviour stops, and he can do
I believe that that is the way out and it is not necessary to have any statutory intervention to solve the dilemma. Provided the judge acts justly and fairly in any particular case, as one expects he would, without doubt his actions would, if necessary, be upheld by the Court of Appeal (Criminal Division). It is perhaps a great pity that the occasion has not arisen for that court to pronounce upon this matter. No doubt very shortly it will do so, but in the interim I respectfully suggest that this amendment is unnecessary.
Lord Thomas of Gresford: My Lords, I endorse what the noble and learned Lord said a moment ago. I intervene just to prevent any criticism of the trial judge. In the first of the two cases about which I know, which attracted considerable publicity, the judge was, and is, an experienced, competent and caring lady with a considerable reputation for the way in which she conducts her court. When that unique, as it was for her, situation arose, she was faced with a dilemma: did she intervene with the defendant to the point where the jury thought that she was entering into the arena, and therefore would take a view hostile to the judge, and more in favour of the defendant, thereby raising the possibility of miscarriage of justice, or, could she be sure that a robust intervention at an early stage would have carried with it the support of the Court of Appeal? As the noble and learned Lord the former Lord Chief Justice said, it is a situation which has never come before the Court of Appeal.
In Committee and today your Lordships have heard from senior members of the judiciary that that latter fear need not have concerned the judge; that she would have had the full backing of the Court of Appeal had she taken the robust view that I am sure she would have wanted to take in that case. I say nothing, one way or another, about the merits of the amendment, but I am concerned that her reputation is maintained, as it most certainly should be.
Lord Meston: My Lords, this is an important amendment, because a few cases attract a large amount of publicity, and cause a great deal of distress to the victims of rape involved in those cases, and also have a tendency to deter other complainants of rape from reporting the matter to the police.
As has been explained in an interesting article in the Journal of Criminal Law for February 1998, there can be a direct conflict--sometimes acute--between, on the one hand, the need to protect the dignity of the victim, and, on the other hand, the fact-finding process in which
The amendment would not be necessary if judges were confident that there was power firmly to curtail cross-examination. Like my noble friend, I know the two judges in the two most recent notorious cases, and was frankly surprised that neither of them, whom I know to be firm but fair, felt able to curtail the cross-examination which attracted such publicity in the press. It is for that reason that I suspect that there is insufficient guidance on their ability to curtail cross- examination from the Court of Appeal at the moment.
Of course the matter does not stop there, because, as the noble Baroness, Lady Anelay, said, it must be looked at now in terms of the European Convention on Human Rights. In Committee, reference was made to the case of De Oliveira, which, as I understand it, was concerned with a judge stopping a defendant's personal cross-examination in a case involving a child. That of course is not on all fours with a case involving adult rape. Nevertheless, it is important that any development in that area of the law so far as concerns us is compliant with the convention, not merely from the point of view of the defendant but from the point of view of the victim, because, in the article to which I have just referred, mention is made of a victim of such cross-examination called Julia Mason, who waived her anonymity after her harrowing six-days' cross-examination by her attacker, to take her case to the European Court of Human Rights.
Unfortunately I do not know, and have had no opportunity to discover, what has happened to that case. Clearly there is, as has been pointed out, not least by the noble and learned Lord, Lord Lane, a dilemma which is now heightened by the need to comply with the European convention. This is a matter which requires a great deal of thought which needs to be undertaken urgently.
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