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Lord Dholakia: I am grateful to the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

Lord Ackner moved Amendment No. 113:

Page 28, leave out line 24.

The noble and learned Lord said: This amendment, together with Amendment No. 116, is directed towards maintaining the status quo in relation to restrictions on evidence at trials for rape. I remind the Committee of the status quo on the subject. The Heilbron Committee produced recommendations for legislation which were accepted. They are to be found in Section 2 of the Sexual Offences (Amendment) Act 1976 which states in subsection (1):

I respectfully disagreed with the proposition put forward by the Minister during the Second Reading of the Bill which is now before us. At column 1238 of Hansard for 15th December 1998 he said:

    "I know that some of your Lordships, and some outside this House, have misgivings about some aspects of the provisions"--
that is, the provisions we are discussing.

    "The Bill does not exclude all evidence of previous sexual behaviour, only irrelevant evidence. Taking rape as an obvious example, a complainant's previous sexual behaviour, whether one of wild abandon, tedium or total abstinence, is simply not relevant to the question of whether there was consent on the occasion in point; nor should it render a complainant less worthy of belief or less deserving of the protection of the law".
With great respect, that just is not right. Of course it is relevant. Credibility where the issue is who is to be believed--the complainant or the defendant--goes to a serious aspect of the whole case. That was made clear by my noble and learned friend the Lord Chief Justice in the same debate on 15th December 1998 at column 1272 of Hansard. He said:

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    "The simple truth is that on an issue of whether a complainant consented to sexual relations with the defendant, the fact that the complainant has behaved promiscuously on other occasions outside the window of 24 hours before and after the commission of the offence may well--I emphasise 'may well'--"be relevant. So, to recognise is not to open the door to abusive, insulting, irrelevant cross-questioning, which, in any event, is likely to repel any decent modern jury, but to recognise what many sensible decent jurors would consider a question that may be relevant in some cases".

I turn to one of the leading cases on the subject, R. v. Brown in the Court of Appeal. The Court of Appeal made it clear that if the questioning related to conduct which was merely relevant to credibility, then it would probably be disallowed. The crux of the matter is to be found on page 101 of the judgment of the Court of Appeal:

    "The real inquiry is whether on the facts of the particular case the complainant's attitude to sexual relations could be material upon which in these days a jury could reasonably rely to conclude that the complainant may indeed have consented to the sexual intercourse on the material occasion, despite her evidence to the contrary. It is in every case a question of degree".
That is why the Act reads in the terms to which I have drawn the Committee's attention.

It is my respectful submission that the law as set out in the statute is wholly adequate and does not need to be played around with. For the legislature to say that something that is potentially relevant, and therefore should be considered by a jury, is not to be put before the jury is a terribly serious step. If it is not put before the jury it may well be that had the jury had the material it might have reached a state of doubt which obliged it to acquit. What is happening here is that the discretion is to be removed from the court and in its place one has the absolute words of Clause 40. It is always a dangerous matter for the legislature to remove judicial discretion. We had experience of it in the Criminal Justice Act 1991 which placed judges in a straightjacket when sentencing, with the result that not long after that Act came into force amending legislation had to be introduced. Accordingly, I move that these clauses be dealt with in the manner that I have suggested.

The Deputy Chairman of Committees (Lord Ampthill): I remind the Committee that if Amendment No. 113 is agreed to I shall be unable to call Amendment No. 114.

Baroness Mallalieu: Amendment No. 125 standing in my name and that of the noble and learned Lord the Lord Chief Justice is grouped with these amendments. Perhaps I may speak to that amendment at this stage. Its purpose is simply to give to English and Welsh judges the same limited discretion as their Scottish counterparts were given when this aspect of the law was reviewed in Scotland in the Criminal Procedure (Scotland) Act 1995; namely, if the court considers that the evidence or question is necessary in the interests of justice to ensure a fair trial it may give leave. I hope that the Minister will be able to reassure the Committee that the judiciary here enjoys no lesser parliamentary confidence in exercising a very limited and carefully prescribed discretion than its Scottish counterpart.

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The starting point for consideration of Clause 40, as the noble and learned Lord, Lord Ackner, said, is whether it is necessary to change the law to restrict questions about a complainant's sexual history over and above the very considerable constraints that now exist. One's answer to that question depends on one's particular standpoint. Those who deal with individuals who allege that they are the victims of sexual offences see the matter from one clear and, in my view, extreme viewpoint. Women Against Rape for example believes that evidence of a woman's sexual history with a man other than the defendant should never be allowed with no exceptions. If one asks those who have given evidence as complainants in a sex case it is scarcely surprising if they, too, say that the questioning goes too far. When young I gave evidence as a complainant in court in relation to a sexual offence, which fortunately was not a serious one. I was cross-examined. I readily appreciate how vulnerable such witnesses feel and that virtually any question that challenges the evidence that is given will appear to be intrusive and excessive.

But I hope that as a result of nearly 30 years of both prosecuting and defending in these cases in the courts I can now view these matters from both sides. The reality is that not all complainants tell the truth. Questions that are merely designed to embarrass, humiliate or blacken the complainant in the eyes of a jury must never be permitted to be asked, but relevant questions that are necessary to ensure justice is done must continue to be permitted. It must be right that no one's best interests are served by wrong convictions, least of all those who are genuine victims, because when miscarriages of justice come to light, as they sometimes do, juries thereafter are even more reluctant to convict in cases where a conviction may well be more than justified.

In practice today in order to ask such questions of a witness in a sexual case it is necessary in the absence of the jury and the complainant for the judge to be convinced that the questions one proposes to ask, which one must outline, are relevant and necessary before the judge gives consent. In doing so the judge will clearly define the limits of his permission. In my personal experience such applications are not made nor is permission given lightly. Although this is a field of work in which I am engaged week in and week out I have no personal experience since the passing of the 1976 Act to which the noble and learned Lord referred of the law either not being complied with by a judge or being abused by counsel after leave has been given. I did have such experience before that date.

I have read and re-read many times Clause 40. I am still puzzled as to the extent of changes in the law that it makes. It claims to introduce a new restriction on evidence or questions about a complainant's sexual history. It does so against the background of the present law that the noble and learned Lord summarised a moment or two ago. I believe that at an earlier stage the Minister took the view that there was already adequate discretion given to the court under Clause 40 as presently drafted.

Perhaps I may consider the discretion that the clause gives as it stands. I believe that there are four separate headings. First, if the issue is not consent and to refuse

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permission to ask the question or give the evidence may make the verdict unsafe, then that evidence or question is permissible, subject to the judge ruling that it is relevant and necessary. Secondly, if the issue is whether the accused believed that the complainant consented under Clause 41 the evidence is permissible, subject again to the judge being satisfied. Thirdly, if the issue is consent and the sexual behaviour about which the questions are to be asked happened within 24 hours either before or after the event, and to refuse to allow those questions may render the verdict unsafe, the evidence is permissible. Fourthly, if the issue is consent, and the evidence to be adduced relates to evidence called by the prosecution about the complainant's sexual behaviour, and in the opinion of the court goes no further than rebutting or explaining that evidence on behalf of the accused, it is permissible.

When the Minister and his officials from the Home Office kindly met those noble Lords who were interested in the Bill before Second Reading to explain the Bill, a number of examples were put to him by noble Lords of facts which gave rise to concern. In each case the Minister reassured us by saying that on those facts one or other of those discretions would apply, and such questioning could be permitted. When the Minister deals with the amendments, will he give us an example of a question which is currently permitted under the present law? I refer, for example, to relevant evidence going to the issue of consent which, in the opinion of the judge, it would be unfair not to allow to be asked and which would be excluded by the proposed legislation. If there is no such example, what does this clause achieve? If there are examples of evidence which is relevant to the issue of consent, and which it would be unfair to the defence to exclude and which may now be excluded under this clause, how can it be in the interests of justice for the clause to stand unamended and not contain some further discretion?

I ask the Minister to consider a hypothetical example and to advise me and the Committee whether at present Clause 40 as drafted would exclude questioning and evidence about these matters. A prosecution is mounted against the defendant, the allegation being that he has met the complainant at a party, followed her to her home, climbed in through an upstairs balcony and raped her. The defendant says that at the party where he agrees they met, she invited him to re-enact the balcony scene from Romeo and Juliet. He says that he indeed followed her home, climbed in and consensual sex took place between them. Subsequently, but prior to the trial, evidence comes into the possession of the defence that the week before, and again the week after but outside the 24-hour period, the same lady met another young man at a party, on each occasion inviting him back to her house in identical circumstances, where consensual sex has taken place with each young man on each occasion. The evidence goes to the issue of consent, not to whether the defendant thought that she consented because he was wholly unaware of either of those incidents at the time of the act in relation to which he is charged.

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The evidence does not appear to me to rebut the evidence of the Crown that the complainant did not consent on the night in question or explain that evidence. Yet that evidence might be thought, I venture to suggest by most right thinking people, to put a very different light on the events which would be highly relevant to the jury's verdict. To reach the right verdict, the jury might well be assisted by having the full picture.

If I am wrong in my interpretation of Clause 40, and such evidence would be admissible subject to the judge being satisfied under this clause, I should be grateful if that were so and more than happy to be corrected. But if I am right, surely the judge should have a wider discretion than Clause 40 gives at present.

Further, the difficulty that we in this Chamber and those in another place have when considering legislation of this kind is that we cannot anticipate all possible factual situations which may arise. Hard cases make bad law. That is a cliche, but it is so often the truth. Recently I had experience in the courts of seeing legislation passed by this House less than two years ago operating in a way which I believe we never contemplated, and as a result obliging the court to impose a mandatory life sentence in circumstances which I suspect we never considered would give rise to such a sentence. After reading it many times, I am not sure whether Clause 40 is draconian or meaningless, but I suspect it to be the former.

Amendment No. 125 is a modest proposal. I ask the Minister to give it careful and favourable consideration. If he cannot do so, I should be grateful to know why he considers that a distinction should be made between Scotland and the jurisdiction of England and Wales.

5.30 p.m.

Lord Lester of Herne Hill: My Lords, I shall speak in relation to the group of amendments as a whole, some of which are, in the words of the noble and learned Lord, Lord Ackner, designed to preserve the status quo.

I begin by saying something about the mischief with which the clause is designed to deal. There is a myth which can operate in courtrooms during rape trials. It is a myth which results in questions posed to a victim of rape which essentially make that victim feel that she is the one on trial. It is a myth which results in a great deal of injustice and inequality, with great respect to the noble Lords and noble and learned Lords who have spoken.

The myth, based upon a stereotyped prejudice, is that unchaste women lie about sex. The consequence of that myth in some rape trials is a slew of improper, irrelevant and inappropriate questions posed by the defence about a rape victim's past sexual practices, past sexual partners and past medical history, even asking whether the woman has ever had an abortion. I ask myself: what possible relevance can such questions have other than to play on prejudices and myths? It is the same as allowing evidence of an accused's past convictions to go before a jury, and yet such evidence is barred because of its highly prejudicial nature.

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Because a victim's past sexual behaviour normally has little probative value to the issue of consent, I support the Government's proposals in Chapter III. The objective behind the proposals is not new. As the law stands now, as the noble and learned Lord, Lord Ackner, explained, we have Section 2 of the Sexual Offences (Amendment) Act 1976 which codifies the recommendation by the Heilbron Committee that the admission of sexual history evidence in rape trials should be the exception rather than the rule. But Section 2 relies on judges to decide whether and when such evidence should be excluded. As Professor Temkin of Sussex University has pointed out in her careful study of Section 2 (published in the 1993 Criminal Law Review at pages 3 to 20), which I have carefully read, the direction given to trial judges by the Court of Appeal has been to admit rather than exclude such evidence in particular on the issue of consent rather on the lines of the thinking in the speech of the noble and learned Lord, Lord Ackner. But consent by its very nature is to a person and not a circumstance. As Dame Rose Heilbron pointed out as long ago as 1975, evidence of a woman's sexual experiences with partners of her own choice is not indicative of a general willingness to consent.

Pace the noble and learned Lord, Lord Ackner--with great respect and friendship--Clause 40 does not remove judicial discretion. It builds on Section 2. Its provisions seek to structure, guide and narrow the discretion exercised by a judge in deciding when a victim may be questioned about her sexual behaviour. There is no absolute bar on such evidence of the kind advocated by Women Against Rape. I wholly share the view of the noble Baroness, Lady Mallalieu, that that kind of extreme position would be contrary to the interests of justice and to other fair trials. But the structure proposed in Clause 40 provides for a limited number of grounds of admissibility, thereby preventing the prejudice which occurs when such evidence is admitted for inappropriate reasons.

There will, essentially, be three grounds. The first, in Clause 40(3)(a), is if the evidence relates to any issue which has to be proved in the case other than an issue as to whether the complainant consented. The second, in Clause 40(3)(b), is if the evidence relates to the issue of consent and the evidence relates to behaviour within 24 hours of the offence. I am not keen on the 24-hour arbitrary limit, but that is a side issue in relation to this group of amendments. The third, in Clause 40(5), is if the evidence is intended to dispute evidence that the prosecution has introduced about the complainant's sexual behaviour. There is also an additional requirement imposed on the court to consider whether refusing admissibility would render a jury's or magistrate's conclusion on a relevant issue unsafe. Clause 40 creates no new additional bar to the admissibility of evidence of the complainant's sexual history if the evidence relates to the defendant's belief that she had consented. The limited discretion operates in relation to the issue of consent itself, but not the issue of the defendant's belief.

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The provisions are well structured, carefully balanced and fair to both the accused and the witness. Those opposed to these provisions appear to argue that they would offend an accused's rights to a fair trial. We have not been given practical examples of exactly how the unfairness is said to result or likely to result from this clause. I leave it to the Minister to deal with the extreme hypothetical and curious examples put by the noble Baroness, Lady Mallalieu, about the Romeo and Juliet balcony scene.

The Supreme Courts in both Canada and the United States have confirmed that so-called "rape-shield provisions" do not automatically offend the right to a fair trial. And there are rape-shield provisions in Australia and New Zealand, all recognising the need to balance an accused's right to a fair trial with a victim's right to fairness, dignity and respect.

The Canadian provisions are a good example of balance, drafted with an input from the Supreme Court, women's groups and civil liberties groups, and eventually passing through the Canadian Parliament with all-party consent. To date, those provisions have survived constitutional challenge, and I am pleased to note that there is some similarity in approach between the Canadian provisions, drafted with an input from the Canadian Supreme Court, and those proposed in Clause 40. I believe that we should support these provisions on the grounds of fairness, justice and equal treatment for women in our courtrooms.

Opponents argue that they are unnecessary because the trial judge will ensure that only necessary and relevant cross-examination takes place. I have no experience as a criminal advocate nor of trying rape cases because I was only a humble Assistant Recorder and Recorder for a decade. However, I can say that until some five years ago I used to participate regularly at interviews with officials from the Lord Chancellor's Department of candidates for judicial office as Assistant Recorders. What we found again and again was that relatively senior members of the criminal Bar had a loose approach to what was and was not permissible in this area. That was despite judicial guidance, and it convinced me that legislative principles and rules are appropriate and necessary.

I do not blame those practitioners for that loose approach. I say with great respect and deference to the noble and learned Lord the Lord Chief Justice, who is in his place and will no doubt speak about these issues, that if one looks at the case law of the Court of Appeal Criminal Division one sees that it is loose in its guidance and does not treat the matter with the strictness that is required not only in the interests of justice but also in the wider interests of protecting witnesses in the way I have described. For those reasons, I oppose the amendment tabled by the noble and leaned Lord, Lord Ackner, and any other amendments which are designed to preserve the status quo.

5.45 p.m.

Lord Campbell of Alloway: Perhaps I may put another point of view. I have no civil liberties brief and,

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unlike the noble Lord, Lord Lester, in my early days I had considerable experience of rape cases on the western circuit. I shall be brief.

Let us start at the beginning. The purpose of the clause is to narrow judicial discretion. There can be no justification whatever for seeking to do that unless the extant law is either unsatisfactory or is not honoured by observance in practice. I speak with deference to the noble and learned Lord the Lord Chief Justice. Subject to what he may say, the extant law is, in my opinion, satisfactory and it is honoured in practice.

One comes to the pivotal point, which is relevancy. Apparently, the noble Lords, Lord Williams of Mostyn and Lord Lester of Herne Hill, and all the civil liberties paraphernalia, take the view that the attitude to sexual relationships has no relevance whatever and therefore should not be before the jury. I take the totally opposite view, which has been expressed by the noble and learned Lord, Lord Ackner, and the noble Baroness, Lady Mallalieu, and wholly accords with my experience, although it was some years ago and before the 1976 Act.

It is a question of degree. There is a strong onus on anyone who wishes to change the existing law because, according to the views that have been expressed by those who have considerable experience in this sphere since the 1976 Act, these matters are relevant to the consideration of the jury. What one is doing is to deprive the jury of relevant considerations and I believe that to be wholly unacceptable.

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