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Lord Cope of Berkeley moved Amendment No. 114:

Page 28, line 24, after ("(5)") insert ("or (5A)").

The noble Lord said: With this amendment and those grouped with it, we move from the great issues of principle, which have been of interest to the Committee over the past hour and a half, to matters of much smaller detail.

Amendment No. 114 and Amendment No. 122, grouped with it, are addressed to the defence that someone else committed the rape, attack or sexual offence in question rather than the defendant. We have not discussed this possible defence, but obviously it arises in some cases. The amendment is intended to preserve the admissibility of evidence which may be relevant to that defence.

The other three amendments--Amendments Nos. 119 to 121--seek to adjust the wording of the clause to deal with the situation where there is more than one defendant. This also is a practicality which arises in the courts. It did not seem to me or, to be more accurate, to my noble and learned friend whose name appears also on the amendments, that that had been adequately dealt with in the wording of the clause. I beg to move.

Lord Williams of Mostyn: As to this group of amendments--Amendments Nos. 114 and 119 to 122--Clause 40(3) already allows the courts to give leave for sexual behaviour evidence to be introduced in relation to the issue of whether the offence was committed by the defendant or another person. At present, the court will have to consider several criteria before giving permission under subsection (3). It will have to consider whether the evidence or questions relate to a specific instance or instances of behaviour, whether their absence might lead to a conclusion on a relevant issue being unsafe, and whether the real reason for asking for the evidence or questions to be admitted is to impugn the complainant's credibility rather than any relevance

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to an issue in the case. Amendments Nos. 114 and 122 would not require the court to consider those last two criteria. We think that it is important that it should.

The amendment suggests that one defendant could play off another in introducing evidence or questions about the complainant's previous sexual behaviour. We do not think that that is appropriate. The provision in subsection (5) is intended to allow a defendant to rebut evidence introduced by the prosecution against him. The prosecution's ability to put forward evidence about the sexual history of the complainant is unfettered; it is only fair to the defendant therefore to allow him to introduce evidence or questioning on the grounds of rebuttal, if the court so agrees. Any defendant wishing to introduce sexual behaviour evidence would have to apply to the court for leave. If the court gave leave to one defendant under subsection (3), it could theoretically give leave to another who wished to introduce evidence which suggested something different if it was relevant to his case. That is theoretically possible, but it is perhaps difficult to conceive in practice.

The defendant should be able, in the interests of justice, to rebut evidence that the prosecution has introduced with the aim of showing that he committed the crime; there is no need for him to be able to rebut his co-defendant's evidence. The defendant does not need to prove or disprove anything that his co-defendant has said.

An unintended effect of these amendments would be that, in giving leave under the suggested new subsection (5A), the courts would not have to consider whether the question or evidence was intended to impugn the complainant's credibility or whether, as I said earlier, it related to a specific instance or instances of behaviour. For the reasons I spelled out earlier today, that cannot be right.

Lord Cope of Berkeley: The Minister has set out in some detail his response to these amendments. I shall need to consider what he has said. In the meantime, I beg leave to withdraw the amendment.

Amendments, by leave, withdrawn.

[Amendments Nos. 115 to 123 not moved.]

Lord Cope of Berkeley moved Amendment No. 124:

Page 29, line 5, at end insert--
("( ) Where evidence or questioning is or has been allowed or admitted in terms of this section, the court may at any time limit as it thinks fit the extent of the evidence or the questioning.").

The noble Lord said: As I think is clear, Amendment No. 124 seeks to provide a power for the courts to limit the evidence or a line of questioning if it appears to have gone beyond that anticipated at the time an application to pursue that line of questioning was made. It may be that the amendment is unnecessary because of some other clause, but it certainly seems to me necessary to have some restriction of this kind. The amendment would ensure that where the evidence develops in a manner which cannot have been foreseen by the court--

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and probably anyone else--at the time the original ruling was made, the court can restrict the impact of its ruling. I beg to move.

Viscount Brentford: I support the noble Lord on this amendment. I am sure that the noble and learned Lord, Lord Ackner, if he were in his place, would say that the judges already have this right. The amendment would strengthen the Bill and the hope given to the general public by the rest of this part of it. I would like to see something along these lines incorporated into the Bill.

Lord Williams of Mostyn: Clause 42(2) requires the court to set out the extent to which it is giving leave for evidence to be adduced or questions asked in this relevant area--where it is decided, of course, that leave should be given at all. We expect those limits to be tightly defined. When evidence is being presented or adduced, the court can step in at any time to ensure that the limits are adhered to. Obviously, if the questioning becomes irrelevant, abusive or humiliating, the court already has common law powers which the judge is obliged to exercise in the control of the trial.

This amendment suggests that, during the trial, the court should not feel bound by the limits set in response to the application for the admission of the evidence or the questions. Except on the bases of irrelevance, abuse or humiliation, it would not be appropriate for the court to overturn its earlier decision and limit the evidence or questions further or not so far as had been originally decided. That is what this amendment would allow. I do not think that that would help. It would be confusing and unfair to the defence having been given leave to conduct the case in a particular way, and to the complainant. I believe that the common law powers are sufficient.

Lord Cope of Berkeley: I am grateful to my noble friend Lord Brentford for his support. However, in the light of what the Minister has said, which I shall consider carefully, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 125 not moved.]

Clause 40 agreed to.

Clause 41 [Interpretation and application of section 40]:

[Amendment No. 126 not moved.]

Clause 41 agreed to.

Clause 42 agreed to.

Clause 43 [Restrictions on reporting alleged offences involving persons under 18]:

7 p.m.

Lord Cope of Berkeley moved Amendment No. 126A:

Page 30, line 28, at end insert ("in public by the police in the course of their duties").

The noble Lord said: We now move on to a completely different part of the Bill dealing with

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reporting restrictions. I am sure it will be within your Lordships' knowledge that a great deal of concern has been expressed about these provisions by the newspapers, by the Guild of Editors and by others. The Government's idea, if I may summarise it--I hope not unfairly--is to extend the statutory prohibition on reporting alleged offences involving persons under 18 as witnesses or victims or, under Clause 44, if young people are involved as the accused.

The first difficulty about the clause to which attention has been drawn by editors and by the newspapers is the one to which Amendment No. 126A is addressed. It is that there is no definition of what constitutes an allegation for the purposes of this legislation. It seems to me that if anyone says, even in private, that an offence has been committed, that may be taken to be an allegation. It is indeed an allegation. But in some respects the restrictions, which are total, apply from that point on. There is no way in which editors or anyone else could know whether someone privately has made an allegation.

However, it is not as extreme as that in every case. It may be that some wild allegations have been made publicly--they may have been shouted out in the street or published in writing--which are totally unfounded and which no one would take seriously. That would still be a public allegation and would set in motion all the restrictions provided for by the clause. We need to know from the Minister what he thinks constitutes the making of an allegation. How are the media to know that an allegation has been made so that they can realise that the law should apply and that they are not allowed to report the matter? It may be that a newspaper or an editor does not know of a specific allegation having been made but, nevertheless, might in those circumstances commit an offence by accident. Not knowing of the allegation, the newspaper or editor might publish some facts which go against what is permitted under Clause 43.

My amendment seeks to suggest one definition which might be appropriate as a trigger for the start of the restrictions on reporting. The amendment states that the allegation should be made,

    "in public by the police in the course of their duties".
Once a police spokesman makes a public statement that an alleged offence has been committed--probably by persons unknown at that stage--the press would be placed officially on notice that this was an offence to which the clause should apply and not one which the press could report or report in any specific terms.

It may be that the Minister will not like the definition that I am suggesting in Amendment No. 126A. However, I do not think that no definition will do. If the Minister dislikes Amendment No. 126A I hope he will suggest a better alternative. There must be some trigger so that all concerned, particularly the news media--television, radio and the newspapers--can know that allegations have been officially made and that the restrictions, which are intended, quite rightly--I sympathise with them--to protect the identity of young

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people, have begun to bite. They are very strong prohibitions, as I shall seek to show in later amendments. I beg to move.

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