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Lord Thomas of Gresford: My noble friend Lord Lester of Herne Hill freely admits that he has no experience of rape cases. With respect to him, he operates on the higher plane of human rights. When he referred to the rape-shield provisions which have developed in other jurisdictions under their Bills or Charters of Rights, he overlooked the fact that the expression he used--the balancing of justice to the accused and fairness to and protection of the complainant--was used by the noble and learned Lord, Lord Lane, a former Lord Chief Justice, in the case of Fenlon in 1980 when he said in terms that in deciding whether to allow cross-examination under Section 2(2) of the Act,

"the court must balance justice to the accused and fairness to and protection of the complainant".

That balancing act, to be performed by the judge, is part of our criminal law, whether or not there is a Bill or Charter of Rights in existence.

My noble friend referred also to the guidance given by the Court of Appeal. That guidance has been on the interpretation of Section 2(2) of the Sexual Offences (Amendment) Act 1976 which, as the noble and learned Lord, Lord Ackner, pointed out, reads as follows:

"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 a 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".

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That provision was considered in the case of Lawrence which was reported in the [1977] Criminal Law Report 492, a decision of Mr. Justice May who said:

"The important part of the statute which I think needs construction are the words 'if and only if he [the judge] 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'. And, in my judgment, before a judge is satisfied or may be said to be satisfied that to refuse to allow a particular question or a series of questions in cross-examination would be unfair to a defendant he must take the view that it is more likely than not that the particular question or line of cross-examination, if allowed, might reasonably lead the jury, properly directed in the summing up, to take a different view of the complainant's evidence from that which they might take if the question or series of questions was or were not allowed".

That approach was approved by the Court of Appeal in the case of Viola in which the noble and learned Lord, Lord Lane, said:

"The first question which the judge must ask himself is whether the questions proposed are relevant according to the ordinary common-law rules of evidence, and relevant to the case as it is being put. If they are not so relevant, that is the end of the matter ... If the questions are relevant, whether they should be allowed or not depends on the terms of s.2, which limits the admissibility of relevant evidence ... It is for the judge to apply the dictum of May J in Lawrence ... to the particular facts of the case".

The noble and learned Lord, Lord Lane, went on to say:

"The 1976 Act was aimed primarily at protecting complainants from cross-examination as to credit, from questions which went merely to credit and no more. The result is that, generally speaking, if the proposed questions merely seek to establish that the complainant has had sexual experience with other men to whom she was not married, so as to suggest for that reason she ought not to be believed under oath, the judge will exclude the evidence. On the other hand, if the questions are relevant to an issue in the trial in the light of the way the case is being defended, for instance relevant to the issue of consent, as opposed merely to credit, they are likely to be admitted, because to exclude such a relevant question will usually mean that the jury are being prevented from hearing something which, if they did hear it, might cause them to change their minds about the evidence given by the complainant".

Lord Lester of Herne Hill: Does my noble friend agree or disagree with the conclusion reached by Professor Temkin in her study of all those cases in the Criminal Law Review, to which I have referred, where she concludes that the willingness of the Court of Appeal to see a wide range of evidence as of relevance to consent means that trial judges who refuse to allow in sexual history evidence do so at some considerable risk of a quashed conviction on appeal?

Lord Thomas of Gresford: If the Court of Appeal quashes the conviction, it seems to me that justice has been done. My experience is--as is that of the noble Baroness, Lady Mallalieu--that it is extremely difficult for such questions to be put. Before they can be put, the Court of Appeal also gives this guidance that:

"No application for leave to cross-examine ... can properly be made unless defence counsel has instructions which provide reasonable grounds for making the assertion he wishes to make".

Therefore, the first safeguard is that counsel must have instructions with reasonable grounds.

The second safeguard is in the rules of the Bar which state that counsel,

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"must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify, insult or annoy either a witness or some other person",

and further that,

"It is a responsibility of a barrister, especially when the witness is nervous, vulnerable and apparently the victim of criminal or similar conduct, to ensure that those facing unfamiliar procedures are put as much at ease as possible".

Therefore, upon defending counsel, there are professional requirements which he must obey as well as requirements and guidance laid down by the Court of Appeal.

I turn to the provisions set out in Clause 40. My first comment--and I shall make a number of separate comments--is in relation to subsection (2)(b),

"that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case".

The test of whether the conviction or conclusion is unsafe is that which applies to the Court of Appeal. In my view, it is wrong to introduce the concept of whether something is rendered unsafe into the discretion of the trial judge. The phrase that has been used in the existing legislation and expanded upon by the Court of Appeal that the judge must consider whether there is unfairness to the accused is a far better test.

My second comment is in relation to subsection (3)(a) and (b). It would seem that it is possible in the discretion of the judge for questions to be asked about the sexual history of the complainant if the issue is not an issue of consent; that is, if the issue is a belief in consent. It seems to me that there is a contradiction here because in almost every case where the defence is one of consent, there will be an additional defence that, even if the complainant did not consent, the defendant reasonably believed that she did consent. The two defences almost invariably run together. Indeed, I cannot imagine a situation where they could not run together.

In that eventuality, it would seem that under subsection (3)(a), the previous sexual history of the complainant, provided that it is relevant, can, with the leave of the judge, be explored in that particular case. There are other criticisms which I have to make of this particular clause, but I have already gone on for far too long and I shall leave it to others.

Lord Desai: I am not a lawyer. I am the first non-lawyer to speak on this question. Having heard many lawyers, I am somewhat confused as to what is the issue, so I shall start by stating what I believe should be the case.

As far as I understand it, the status quo, as it is, is not satisfactory but the clause makes the case worse rather than better. That is my understanding. I believe that in a case of rape, the sexual history of the woman should be totally irrelevant and should not be asked about. That is the first principle that I want to state.

Even the 24-hour rule should be admissible only if the other party is the defendant but not otherwise. So in relation to the case cited by my noble friend, even if the lady in question practised the balcony scene every night or every four hours, it should not concern the court.

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I read with great admiration a lot of literature which feminists write. I know that there is much dissatisfaction about the rape issue among women. There is dissatisfaction with the legislature that rape is somehow considered to be like other offences, whereas many believe--perhaps in an extreme way, but genuinely--that it is more akin to murder than not. And a murdered person's previous history is not relevant as to whether or not he was murdered.

I know that I am being extreme, but that is my role in life. I feel that at present I am inclined to side with the noble and learned Lord, Lord Ackner. He at least wants to preserve the status quo. In as much as Clause 40 does not go in the opposite direction of removing such discretion as the judge has, I have to live with that. But Clause 40 goes the wrong way. It asks the judge to admit evidence which should not be admitted and therefore I shall be inclined to support the noble and learned Lord, Lord Ackner.

6 p.m.

Baroness Thomas of Walliswood: The noble Lord, Lord Desai, has beaten me to the drum as the first non-lawyer to speak. But I am only the second woman to speak and want to say straight away that I am not a member of any extreme feminist group, though I am a member of several respectable ones. And I do not take everything that is said by some of them as the word that I have to follow.

I listened to the noble and learned Lord, Lord Ackner, with all the deference and interest with which I always listen to him. To begin with I felt that he made a lot of sense. But as an ordinary lay person, as he went on--particularly when he was supported by the noble Lord, Lord Campbell of Alloway--I gained the clear impression that the issue of consent could be adduced to some extent by introducing evidence of a complainant's past history. If that is so, one could never support a prostitute who claimed to have been raped, yet I am sure that prostitutes can be raped. We could never convict anybody who raped a promiscuous woman because that evidence would be against her character, yet I am sure that there are women who have a number of sexual partners and who can be raped. Finally, it would be extremely difficult to convict a husband of raping his wife, yet husbands can and do rape their wives.

For those reasons, unless I hear something dramatic and convincing from the noble and learned Lord the Lord Chief Justice, if he intends to speak, I support the line taken by my noble friend Lord Lester of Herne Hill.

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