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Lord Cope of Berkeley: Most of the amendments in this group, like the one outlined by the noble and learned Lord the Lord Chief Justice, provide, in different formulations, a sort of override in the interests of justice. That, after all, is what the court is for. The underlying question before us is whether we, in Parliament, can, in framing legislation of this sort, judge better what is in the interests of justice than can the court at the time.

I am another non-lawyer contributing to this discussion. I do not for one moment under-estimate the traumatic effect of rape cases on the victims. The Minister did hint slightly that I might have done so on an earlier occasion. He also poked fun at Question Time recently at those of us who previously served in another place. It is part of the noble Lord's charm that he cannot resist a dig in the ribs when the opportunity is available. In over 20 years as a Member of another place one learns a great deal about lawyers and justice. It is a very regular feature of a Member of Parliament's surgery on Saturday morning or Friday evening to hear people complaining about their treatment in the courts and the outcome of legal proceedings. Over the years I have had to do my best to comfort, as best one can, distraught women and their relatives who have been on the receiving end, as they saw it, of attacks by lawyers in such cases. Such experiences make Members of another place--and I include myself during the time I was there--believe that something must be done.

But that is not always a good guide to action. I say to the noble Lord, Lord Warner, that we should not legislate on a matter of this kind because of public perception. We should legislate in the interests of justice, which can be a different matter. I also know of a case in my former constituency where I am as convinced as I can be that a young man was wrongly convicted of rape with absolutely appalling consequences for him and his future life. So I take very seriously what the noble and learned Lord the Lord Chief Justice said about miscarriages of justice. The court's job is to get at the truth, which is obviously extremely difficult.

That brings me back to the basic question as to whether we in Parliament can better judge than the court at the time what is in the interests of justice. As expected, there has been discussion this evening about consent and belief in consent. There is a distinction in the Bill in the way in which that evidence may be treated. It is a question of whether it goes to consent by the women or belief in consent by the man in a case. In its consultative paper of 1995 the Law Commission proposed changes in the law as regards belief in consent

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being required. I see that it is the opinion of the Criminal Bar Association that should the Law Commission's proposals become law it will significantly reduce the problem in the operation of subsection (2).

We understand that the Government are considering the views of the Law Commission on this matter and are likely to come forward before long with proposals. That affects very much the questions before us today. If the law on belief and consent in particular is to be altered, then maybe the proposed changes today should reflect that. It may be that they are not as necessary as they seem.

Another thought arising on the matter of consent and belief in consent is that sexual history is definitely relevant to a belief in consent. The defendant's knowledge of the complainant's sexual history is definitely relevant in many cases to his belief in consent and that will still be admissible. So even if we pass the Bill exactly as it stands there will still be a great deal of discussion in court about the sexual history of the complainant. I believe it was the noble Lord, Lord Thomas of Gresford, who said that the two issues of consent and belief in consent are deeply interwoven. In practically every case I believe that they are crucial to it. There are considerable difficulties in proceeding at this time with this amendment.

Amendment No. 117 goes particularly to the question of the 24-hour rule. It is an exceptionally crude device. One can envisage it leading to all kinds of awkward arguments about the exact time of day--or more likely the night--in which previous events took place. It is a question of whether something that happened the previous night is relevant or not to the woman's consent or the man's belief in that consent. That would only be admissible if the 24-hour rule were to apply. If the alleged rape was at 10 p.m. then something which the complainant did at 11 p.m. the previous evening would be admissible in court. But what she did at 9 p.m. would not be admissible in any circumstances. That does not appear to be a supportable proposition. No doubt the Minister will say that there is no magic about 24 hours and that one has to pick a time. I understand that. Quite obviously 12, 24 or 36 hours, or some other period of time, could have been chosen.

It is not the particular period of time that I complain of so much as the arbitrary nature of dropping on any fixed number of hours, whether 12, 24 or 36 hours. It seems to me that it shows that any fixed time test of this kind will not be satisfactory and will lead to all kinds of awkward arguments about the precise timing of other events relative to the time of the alleged offence.

These are difficult matters. Many of the legal profession, the judiciary and the public feel strongly about them. However, ultimately we have to try to make a judgment as to whether the courts should decide what evidence it is proper to bring out in the interests of justice rather than bowing to the clamour of those who have misunderstood proceedings as they take place at the moment. Clearly, complainants should be defended. But defendants have the right to have their interests override those of complainants as it is their freedom and they who are on trial. Therefore there remain great difficulties as regards the proposals in the clause.

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6.30 p.m.

Lord Williams of Mostyn: The noble Lord, Lord Cope of Berkeley, identifies the interesting question of whether the courts decide or, as we contend, Parliament should set a firmer structure. At the end of the day many of the contributions of Members of the Committee come down to that. When Parliament reaches a conclusion on that, I do not believe that it will be bowing to clamour. It will be paying attention to what has been said by many people over a number of years, not least having regard to the research to which the noble Lord, Lord Lester of Herne Hill, alluded.

I start from a pretty simple proposition. A woman's body is her own. It is not a plaything. A women's consent is her own. It is her property. I believe that historically the way in which we have tried rape cases in this country, if not denying both those propositions, we have certainly paid insufficient heed to them. I have the greatest regard for the noble and learned Lord the Lord Chief Justice and my noble friend Lady Mallalieu, and I do not say so on any cosmetic basis. However, I believe that they are wrong.

The noble and learned Lord said again and again that we must, at all costs, avoid miscarriages in this area. I did dissent from that on the last occasion, although I did not develop my dissent. Nevertheless, I shall do so this evening. In some jurisdictions it is not possible to convict of rape without the eye witness evidence of two male witnesses. If we want to go that way we will, at all costs, avoid miscarriages in the sense that the guilty will not be punished; but we will do no service to those who are legitimate, honest complainants. Therefore, with the greatest respect to the noble and learned Lord the Lord Chief Justice, I do not adopt his formulation.

The tone of the debate has been remarkably moderate, with different views being expressed, both conscientiously and honourably, because, as I readily concede, this is an extraordinarily difficult and sensitive area. However, I should like to take up one point that was made. When the question was raised at sentencing seminars carried out by the Judicial Studies Board and a suggestion was made that judges exercised their discretion too inappropriately, the noble and learned Lord said that it was met with outrage and disbelief. I am prepared to accept that. The proposition that six men falsely accused of terrorist offences in Birmingham had been wrongly accused was met year upon year by the judiciary of this country with outrage and disbelief. Indeed, that was not the only occasion when our system determined that outrage and disbelief were necessarily the safest guides to the most just outcome.

These are exceptionally difficult matters. I take note of the point raised by the noble Lord, Lord Cope of Berkeley; namely, why specify 24 hours? I shall illustrate the reason for that by referring to some questions that were raised earlier. We are actually talking about sexual activity at or about the time of the alleged offence. I shall certainly consider whether or not we ought to have a better formulation, for example, something along the lines of, "at or about the same time". I shall say why we want a cut-off point which is not arbitrary and, in so doing, I take assistance from the

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examples given by the noble and learned Lord the Lord Chief Justice. If I recollect correctly, I believe that the noble and learned Lord referred to an allegation of rape on New Year's day and said that the claimant could be asked, "Did you have sexual intercourse on Boxing Day, December 29th?", and so on. He said that such questions would be relevant. However, would it equally be a relevant question to put to the complainant, "Did you have consensual sexual intercourse with a man 10 years ago?" Plainly the relevance would have diminished. It seems to me that it is perfectly sustainable to put "24 hours" or "at or about the time", even bearing in mind the arguments marshalled against us.

We have thought about this a good deal. I believe that there is a continuing mischief which needs remedying. We have looked at what was said in Speaking Up for Justice and in the responses that we received, and we believe that the law needs changing. We also believe that evidence or questioning about a complainant's sexual behaviour, whether with the accused or with anyone else, should only be admitted where it is truly relevant to an issue at trial. A refusal to admit or allow it might--and that is quite a low test--have the result of rendering unsafe a conclusion of the jury or the court on any such issue.

So far, we have travelled a path in agreement. However, we now part company essentially--or, very often, fundamentally--on the question of what issue is relevant at trial? It is worth remembering what the noble and learned Lord, Lord Ackner, rightly told us on a number of occasions. Essentially, the issues are: did intercourse take place between the complainant and the accused on the occasion in question? Did the complainant consent? Did the accused believe that the complainant consented?

Let us consider: "Did the complainant consent?" This means, "Did the complainant consent to sexual intercourse with this defendant?"--and not, as the proprietor of her own body, thoughts, life and choices, did she consent to sexual intercourse with others. I do not want to put this unnecessarily harshly, but there is sometimes a danger of thinking that women are wholly different from men in their capacity for choice. Moreover, because we were all brought up that way--that is, in a significantly male-dominated society--there is a danger of assuming that if a woman freely wishes to have sexual intercourse with A, then inevitably she must succumb to the desires of B, C, D, and so on. Not only is that wrong; it is fundamentally and deeply insulting.

I certainly undertake to think most carefully about what Members of the Committee have said. I am not entirely persuaded by everything. I do not have the perfect response to the Capulet syndrome which my noble friend put to me, but I certainly undertake to think about it. It is possible in very rare circumstances that such a defence might be mounted. I am bound to say that I know the deficiencies of that approach, but, as all lawyers are entitled to say, in all my years at the Bar and on the Bench I have never heard of a defence of that sort. But, obviously, my practice was too limited. There is a serious point behind what my noble friend

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would regard as perhaps an extreme example, although I put that in an amicable way. I shall certainly consider what she said with great care. I believe that my noble friend is really looking at striking similarity. I give way to the noble Lord.

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