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Baroness Lockwood: I had not intended to participate in the debate this evening. I shall be brief. As I listened to the debate I wondered what women who had been victims of rape would feel on hearing a report of tonight's proceedings. I am quite sure that many of them would be deterred from taking their cases to court. The noble and learned Lord the Lord Chief Justice said that one wanted to avoid unjust convictions. Of course that is so. One understands the sincerity of noble Lords who have defended the right to a fair trial, but what about the woman who is afraid and deterred from taking her case to court? That has been a common occurrence in the past and one does not want it to continue in future.

I think that it was my noble friend who said that the accused may not receive a fair trial because he refused to appoint an advocate. That would be his choice. The accused would be able to defend himself to the point of cross-examining the woman who was bringing the case of rape. Like the noble Earl, Lord Russell, I believe that if there is to be a balance it should be on her side. Under this clause, there is the possibility of a fair trial without the accused being able to cross-examine the victim in the way that occurred in the two cases referred to. I believe that the majority of women in the country would want this clause to stand as it is.

Baroness Kennedy of The Shaws: The Lord Chief Justice spoke of the great concern about miscarriages of justice. I think that many women in this country believe that miscarriages of justice take place all too often when it comes to the trial of rape.

I believe that an important moment has arrived with this legislation. The Government seek to strike the balance between human rights and civil liberties. It is interesting that it is happening now because we are introducing human rights legislation into this country. That poses an intellectual challenge to us as lawyers in the courts of thinking a different way. Some of my colleagues from the criminal Bar may somewhat lag behind in their consideration of human rights principles.

As the noble Earl, Lord Russell, said, in consideration of rape we necessarily have a tension between two principles: between the human rights issues raised on behalf of the complainant and the civil liberty issues of protecting defendants' rights. The happy resolution found here is charting a very subtle course between those two positions. We are not abandoning here the rights of defendants to a fair trial, of proper representations, to be tried to a high standard of proof, and that they are considered innocent until proved guilty. Here we have the charting of a course between

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inflexible legislative rules and wholly untrammelled judicial discretion. We know that the former threatens the rights of defendants and that the latter ignores the needs of complainants. But here one has a resolution which seeks to track a middle course. I suggest that the amendments are not taken into consideration by the Minister.

The noble Lord, Lord Thomas, spoke of the intolerable effects of conviction for rape. I agree with him. It is terrible if there is a miscarriage of justice. But in considering that, we also have to have in mind the intolerable effect of intimate cross-examination on a woman if she has been violated and if that cross-examination has been conducted by the person who violated her. The noble Earl spoke effectively about that balancing act. We have to bear that in mind. That is the failing by my colleagues from the criminal Bar.

Sometimes cross-examination can contain menace even when it is conducted without a threatening tone. I was surprised at the suggestion that it might be a good thing if a husband or former husband were able to cross-examine his wife where there is an allegation of rape. That is precisely the kind of circumstance where there can be intimidation and a woman can withdraw her complaint because of fear of what might follow on conviction.

I have acted on behalf of the accused in many cases of rape. I have also been involved in advising those who have been victims of rape; for example, in seeking compensation from the Criminal Injuries Compensation Board. I was indeed the lawyer to whom the noble Earl, Lord Russell, turned when his student was falsely accused. My advice was that which I believe any criminal lawyer, believing in the system, would give; namely, that it would be wrong for him to be asked to leave his university without a trial and that he should insist that the case went to court. That was done in that case and he was properly acquitted.

In the same way, I have to balance my concern on behalf of women with that on behalf of defendants. I have always resisted the demands of some of the women concerned about rape cases that I should never defend in such trials. I have always believed that in my role as a lawyer I should abide by the cab rank principle and acknowledge the experience which comes from acting in such cases. I, too, know the suffering that flows from women feeling the loss of justice and the way in which that leads to a loss of confidence in the criminal justice system generally. I know that from speaking to women's organisations throughout the country. There was a general sense that such cases do not take account of the pain and anguish that women experience in the courtroom.

It is interesting that the Lord Chief Justice said that there had been only two cases, and yet, in making submissions to this Committee, both the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Wigoder, spoke of two different cases, which were obviously not the ones reported so heavily in the press. They spoke of defendants acting for themselves and cross-examining the victims. The two most recent cases were shocking.

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But over the years there have been other shocking cases. There will continue to be such cases if steps are not taken.

I take great pleasure in the fact that this Government have sought to act in securing the confidence of women in the system. It is my belief that this clause does that and also the later clauses which seek to reduce cross-examination on sexual history. We have to see the context. It is about the mythology and the stereotyping that go into these cases and the way in which judicial discretion has not protected women in the past. I say to my noble friend Lord Wigoder that eight questions are seven questions too many of the victim in a case of this kind. That does not speak too well of judicial discretion if matters are left as late as that before there is an intervention. This is a good clause and I commend it to the Committee.

Lord Cope of Berkeley: After such an expert and experienced debate I am hesitant to intervene, but that is not going to put me off. The noble Lord, Lord Thomas, said that he was not speaking for his party, which subsequently became apparent in the debate. I do not believe that this is a party matter. We all speak for ourselves, I certainly do. In any event, I believe that our aims in this matter are the same. They are to balance the very difficult dilemma clearly put to us by the noble Earl, Lord Russell. There is the need to protect women from humiliation--particularly from the terrible experiences mentioned in the cases which have been referred to--in contrast to the need not to prejudice a fair trial. That is a very real and difficult dilemma for us. It is a difficult choice to make.

On reflection, having heard the debate, I prefer the amendment in the name of the noble Baroness, Lady Mallalieu, supported by the noble and learned Lord the Lord Chief Justice and the noble Lord, Lord Wigoder, to those in my name. But all the amendments go in the same general direction.

The first question to which we must give attention is whether there will be copy-cat cases. We had some reassurance in respect of that from the noble and learned Lord the Lord Chief Justice which I found reassuring. In any event, the reason that I prefer Amendment No. 92 is that it provides protection against the possibility of further copy-cat cases.

But the next and more difficult question is as regards how we avoid other women being deterred by the publicity that there was for those two cases in particular and the general publicity surrounding them. It is extremely important to try to do that. It is clear that many women are understandably deterred from pursuing cases and that is not in the interests of justice. It seems to me that that can be matched only by publicity in the opposite direction. I doubt whether our agreement to this clause, as opposed to the rest of the Bill, will do much in relation to that publicity. It is a much larger matter.

The next question which we must address is whether the accused would be denied, by this clause, the opportunity to defend himself properly. I accept entirely the arguments that have been used about the European Convention on Human Rights. As I

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understand it, as explained in a letter that I too received from the Minister after Second Reading, that seems to be satisfied provided that a court-appointed lawyer can cross-examine. That provision is essential to the ECHR. But obviously that is a matter which we shall discuss later in the Bill.

The final question is whether, if we do not agree to the clause as printed in the Bill going onto the statute book, we shall have done enough to protect women against the humiliation that there was in those publicised cases.

The first judgment we must make is whether the Court of Appeal's actions have so far been sufficient. So far as we can tell, in the time which has elapsed since the Court of Appeal made its decisions, they have been sufficient to protect women. But, in any event, within the Bill itself, in other clauses, we are going much further in relation to protecting women in that situation. We have already discussed the clause dealing with special measures--screens, videos and so on--which can be used to protect women, in this case, during cross-examination. On another occasion, we shall discuss the question of consent and so on which is dealt with in later clauses.

Therefore, if we do not agree to this clause unamended, it is not that we are doing nothing to address those problems. On the contrary, we are taking some extremely effective steps to address them.

That brings me back to the question of whether the accused will be denied the opportunity to defend himself properly. It is a difficult question, but at least for the time being I come down on the side of Amendment No. 92. We should have the clause on the statute book as a fall back in case the actions that have already been taken by the Court of Appeal and those that we are taking in other parts of the Bill do not prove to be a sufficient safeguard in the matter.

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