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Lord Pearson of Rannoch: My Lords, I, too, should declare an interest as the honorary president of the National Society for Mentally Handicapped People in Residential Care, and also as the father of a mentally handicapped child. I should like to join other noble Lords in congratulating the Government on this initiative and in welcoming these papers. I particularly welcome the answer that the Minister gave to my noble friend Lord Renton.

As there are a few minutes left on the clock, I thought it might be in order to underline the seriousness of the situation which affects particularly mentally handicapped people; that is, people with learning disabilities and severe learning disabilities in this country, of whom there are about 156,000, a large proportion of whom still live with their families. The problem is well set out on page 18. We see that 27 per cent. of all carers are already over 65. Therefore, the problem, exacerbated as it is by "the bulge" and other

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factors, is getting worse. The noble Baroness suggested leaving this problem to social services at local level. But in order to encourage village communities in the way my noble friend suggested I fear the Government will have to put a little pressure on those social services at local level. Encouraging village communities is one option that is available in future. There is already acknowledged to be a shortage of 25,000 residential beds for mentally handicapped people, and that number is still rising. Therefore, my only question to the Minister is: will she please feel able to exert a little pressure from the centre at local level, because the whole concept of village communities is, I am afraid, still resisted at local level and does not fit with the Government's laudable intentions of choice and opportunity for this very vulnerable section of society?

Baroness Hayman: My Lords, I note with care what the noble Lord says on this issue. As ever, we must strike the right balance between national policy and local sensitivity to local needs. If I inadvertently gave the impression that the responsibility lay solely with social services at local level, that is not correct. The national priorities guidance spells out clearly the shared priority between health and social services in this area. The carers strategy goes sufficiently wide to show a recognition that there are many other areas of government which also need to be brought in if we are to provide the range of services and facilities that are needed by carers and their dependants.

Youth Justice and Criminal Evidence Bill [H.L.]

5.3 p.m.

House again in Committee on Clause 37.

[Amendments Nos. 109A to 111 not moved.]

Clause 37 agreed to.

Clauses 38 and 39 agreed to.

Clause 40 [Restriction on evidence or questions about complainant's sexual history]:

Lord Dholakia moved Amendment No. 112:

Page 28, line 19, after ("behaviour") insert ("or any medical history in relation to mental disorder").

The noble Lord said: Chapter III deals with the protection of complainants in proceedings for sexual offences. This amendment is grouped with Amendments Nos. 123 and 126. To save time, perhaps I may speak to all three.

I have been associated with a number of mental health charities and I wish to express their concern. Clause 40 places restrictions on evidence or questions about a complainant's sexual history in the case of sexual offences. I believe that the same protection should be afforded to evidence or questions about a complainant's history of mental health problems. Such questions can be used to prejudice the jury against a witness and attack that witness's credibility and character. Amendments Nos. 112 and 123 seek to introduce restrictions so as

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to avoid such situations. It should be stressed that this provision relates to the protection of a victim of rape or sexual assault who has a history of mental health problems against the defence attempting to use questions about his or her mental stability or to attack his or her credibility and character.

Cases have been brought to my attention where general evidence of a complainant's history of mental health problems has been used to undermine her credibility as a witness without any reference to her mental state at the time of the incident. These amendments are designed to prevent the introduction of this type of evidence unless it is related directly to events at the time of the alleged offence.

Amendment No. 126 would add an additional sub-paragraph to make it clear that,

    "'mental disorder' means mental disorder within the meaning of the Mental Health Act 1983".
I beg to move.

Lord Desai: I support the amendment. I apologise to the Committee; I did not speak at Second Reading and rise to speak only to Clause 40. The clause is crucial; however, there are problems. One problem, as pointed by the noble Lord, Lord Dholakia, relates to the evidence that a complainant is asked to present in relation to her history.

The amendment concentrates only on mental history. It is right that there should be restrictions on the kind of evidence that is presented. Because the question of mental stability and instability is delicate, especially in relation to the issue of rape, where the person's mental state may be delicate anyway if he or she is being attacked, it is important to guard the rights of the complainant. Therefore, whatever care can be taken to protect the rights of the complainant is to be welcomed. Therefore I support the amendment.

Lord Lester of Herne Hill: I, too, support the intention behind my noble friend's amendments. As he said, Amendment No. 112 would amend subsection (1) of Clause 40 to prevent questions about any medical history in relation to mental disorder being put without the leave of the court. I support that intention. However, I have some concern about the wording.

The amendments are not wide enough to prevent a woman complainant from being asked, for example, whether she has ever had an abortion. It is important to restrict a defendant's access to an alleged rape victim's medical and therapeutic records, but that has to be done with sensitivity and balance.

There was a notorious case in Canada in which a bishop brought into open court the counselling records of the women whom he was found to have raped. In 1997 the Canadian Parliament enacted amendments to the Canadian criminal code to restrict a defendant's access to records of that kind by requiring a specific application to be made to the judge for access. The judge is then required to consider a specific series of factors which balance the accused's ability to make full answer and defence and the victim's right to personal privacy and equality of treatment.

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I mention that at this stage because, whatever the Government's attitude may be to my noble friend's amendments, it seems to me that a provision along those lines might well be worth further consideration at a later stage during the Bill's passage.

Lord Monson: Of course, we must heed complainants' rights, but we must also pay attention to defendants' rights. Surely, Amendment No. 112, even as qualified by Amendment No. 123, loads the dice excessively against the defendant. After all, there have always been individuals who are mentally unbalanced in some way, who have a long history of making serious false allegations against totally innocent strangers or even totally innocent acquaintances. I submit that if Amendment No. 112 is agreed to, those innocent individuals may be put at risk.

Lord Williams of Mostyn: I sympathise with the intention behind this amendment as described by the noble Lords, Lord Dholakia and Lord Lester. The complainants are not on trial and their lives should not be combed through to find some detail that the jury might take into account unless it is strictly relevant.

Evidence that a complainant has or has had a mental disorder can already be excluded by the court if the court thinks it is irrelevant to the issues at trial. If the mental condition has been short-lived or adequately controlled and there is no medical reason to believe that it was relevant, then prosecutors should not be reluctant to let the court decide on admissibility.

The amendments go further. They would have the effect of making mental disorder irrelevant in law to the defence of consent, unless specific evidence of disorder at the time of the alleged offence could be produced.

I sympathise with the purpose of the noble Lord, Lord Dholakia, but mental illness is not always irrelevant and a witness's mental state can be relevant to whether he or she imagined that an offence took place or whether he or she is deliberately making a false allegation. In certain cases, the state of mind thereafter--in other words after the offence--and at time of trial may well be relevant.

The clause would need to be widened to cover abortions and so on, which is the specific point raised. I have a good deal of sympathy with the protection that ought to be given. I think I can be helpful to the noble Lord. One of the real complaints at the moment is that some defence lawyers embark on "fishing expeditions"--and this is a mischief of which I have knowledge--to obtain documents from third parties such as doctors or hospitals. That is becoming a considerable concern.

The comfort I think I can give to the noble Lord is that Section 66 of the Criminal Procedure and Investigations Act 1996 introduced new provisions for issuing witness summonses to attend the Crown Court. That is intended to help deal with the problem. Section 66 will be brought into force this spring. It means that there will have to be a witness summons issued on application to the court. The application would have to be justified, specific and timely. At that stage,

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the third party--perhaps the doctor or the other professional adviser or the hospital--could contest the application, if necessary, should the court think it appropriate, on the grounds that the evidence was irrelevant.

That ought to be some comfort to the noble Lord because most of those lines of cross-examination are developed, as the noble Lord, Lord Lester, indicated, by having sight of the records and then developing the line of cross-examination. If you have to justify your reason for having the records brought to court, the provision ought to be a useful constraint on the abuse of some of those lines of questioning. I hope that that is helpful.

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