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Lord Hunt of Kings Heath: My Lords, I beg to move that this Bill do now pass.

I begin by thanking all noble Lords who have taken an interest in this Bill. Notwithstanding the perhaps sparse attendance during much of the deliberations on the Bill, we had some interesting and detailed discussions on the issues. I am grateful to all those who took part in our deliberations and particularly acknowledge the contributions of the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones. We had a most constructive debate. I am also grateful for the agreement reached, again with particular thanks to the noble Earl, Lord Howe, which allows this Bill to proceed today. The noble Earl is to be congratulated on his identification of a drafting point in Clause 3(2) and I am glad that we were able to agree to his amendment.

The main aim of the Bill is to simplify the arrangements for the collection of NHS charges for all the parties concerned and to raise additional income for the National Health Service. The Bill will undoubtedly bring benefit to the NHS, and the co-operation of noble Lords during the passage of this Bill is much appreciated.

Moved, That the Bill do now pass.--(Lord Hunt of Kings Heath.)

On Question, Bill passed, and returned to the Commons with an amendment.

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

3.12 p.m.

Lord Williams of Mostyn: My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.--(Lord Williams of Mostyn.)

On Question, Motion agreed to.

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

Lord Ackner moved Amendment No. 55A:

Page 28, leave out line 24.

The noble and learned Lord said: My Lords, with the leave of the House, in moving Amendment No. 55A, I shall also speak to the other amendments in this group which are tabled in my name. They are all designed to achieve one specific end; that is, to ensure that the status quo remains.

The subject matter of Clause 40 is the restriction on evidence or questions about the complainant's sexual history. The issue arising out of the amendments that I seek to put forward is whether the statutory provision restricting that material--it was brought into force over 25 years ago and runs to two short paragraphs in the legislation--should be supplanted by a new clause that

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takes over a page in the Bill before us; it is convoluted, difficult to follow and is otherwise in many respects undesirable. I hope that I put the matter dispassionately.

On the third day of Committee stage the noble Lord, Lord Cope, said this:

    "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".--[Official Report, 8/2/99; col. 57.]
That very much reflected the views of the Lord Chief Justice on Second Reading at col. 1270. The observation of the noble Lord, Lord Cope, for which I have considerable respect, was misquoted twice in a rather important way by the noble Lord, Lord Williams of Mostyn. Again, on the third day in Committee he said this:

    "I emphasise 'subject to the parliamentary structure'--which is incorporated in the Bill. Indeed, we return to the point of principle of the noble Lord, Lord Cope, of whether it is to be left to a discretion which many believe has been inappropriately exercised".--(col. 60.)
And at col. 62 he said:

    "I hope that I have dealt with the main themes here. I do not apologise for repeating the fact that I think the noble Lord, Lord Cope, identified the position correctly. Is this to be a matter for the courts' discretion or for parliamentary structure?".
In referring to the judge's discretion, that was quite incorrect, as I shall indicate when referring to the judgment of my noble and learned friend, the former Chief Justice, Lord Lane, who is happily sitting on my right.

I suppose in some respects one must not be too censorious about that error because it was somewhat supported by the observations of the noble Lord, Lord Lester of Herne Hill. At col. 47 he said:

    "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".

Comment was made when that was before your Lordships about the absence of guidance, so it was said, which was given in relation to the clause in the Sexual Offences (Amendment) Act 1976, which imposes restrictions on evidence at trials for rape. Section 2(1) provides quite simply as follows:

    "If at a trial any person is for the time being being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial, about any sexual experience of a complainant with a person other than that defendant".
Subsection (2) provides the guidance:

    "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"--
I stress those words--

    "to that defendant to refuse to allow the evidence to be adduced or the question to be asked".

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The matter came before the Court of Appeal, Criminal Division, in 1982 in the case of Viola. I need not bother your Lordships with the special facts of that case, but I go straight to the judgment of my noble and learned friend the Lord Chief Justice. This clear guidance was given on the point on which I sought to criticise the Minister, at page 128:

    "It is, we think, apparent from those words--
from Section 2 that I quoted--

    "without more, that the first question which the judge must ask himself is this: Are the questions proposed to be put relevant according to the normal common law rules of evidence and relevant to the case as it is being put?...The second matter that the judge must consider is this. If the questions are relevant, then whether they should be allowed or not will of course depend upon the terms of section 2, which limits admissibility of relevant evidence".
Then the noble and learned Lord refers to the case of Lawrence, in which Lord Justice May 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 to be asked 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".

Then the Lord Chief Justice refers to a case in the Court of Appeal Criminal Division--Mills (Leroy) (1979). The decision was given by Lord Justice Roskill as he then was, and his Lordship said this:

    "This section has not as yet, as far as this Court is aware, been considered by this Court...we pointed out to Mr. Hunt in the course of argument, [that this is] essentially a matter for the exercise of discretion by the trial judge within the framework of the Act, bearing in mind that statutory provision is designed to secure protection for complainants. The learned judge here exercised his discretion after having had that decision of May J. quoted to him. Mr. Hunt found himself unable to say that this was not a matter for the exercise of the learned judge's discretion, but argued that this Court should substitute its own discretion for that of the learned judge...With respect, it would be entirely wrong for us to do so".
There, the suggestion that it was at the discretion of the judge to decide, once satisfied that the evidence or questions were relevant, to allow or disallow them was fairly stated. However, the Lord Chief Justice, giving the judgment of the court in Viola, continued:

    "We would further like to say this about the judgment in MILLS, and say it with the greatest possible deference to that Court. It has been agreed on all hands, not only by the appellant and by the Crown but also by Mr. Green who has assisted us as amicus curiae, that it is wrong to speak of a judge's 'discretion' in this context. The judge has to make a judgment as to whether he is satisfied or not in the terms of section 2. But once having reached his judgment on the particular facts, he has no discretion. If he comes to the conclusion that he is satisfied it would be unfair to exclude the evidence, then the evidence has to be admitted and the questions have to be allowed".
He continued:

    "Having said that, when one considers the purposes that lay behind the passing of this Act as expounded by Roskill L.J., it is clear that it was aimed primarily at protecting claimants from cross-examination as to credit, from questions which went merely to credit and no more".

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This is the part that I want to stress:

    "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. In the present climate of opinion the jury is unlikely to be influenced by such considerations, nor should it be influenced. In other words questions of this sort going simply to credit will seldom be allowed. That is borne out by the cases to which we have been referred...On the other hand, if the questions are relevant to the issue in a trial in light of the way that the case is being run, for instance relevant to the issue of consent, as opposed merely to credit, they are likely to be admitted, because to exclude a relevant question on an issue in the trial as the trial is being run will usually mean that a 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".
Almost finally, the Lord Chief Justice said:

    "Inevitably in this situation, as in so many similar situations in the law, there is a grey area which exists between the two types of relevance, namely relevance to credit and relevance to an issue in the case. On one hand evidence of sexual promiscuity may be so strong or so closely contemporaneous in time to the event in issue as to come near to, or indeed to reach, the border between mere credit and an issue in the case...The second matter is, is this Court entitled to differ from the conclusions of the learned judge? As already pointed out, this is the exercise of judgment by the judge, not an exercise of his discretion. This Court is in many respects in as good a position as the judge to reach a conclusion".
And it did, and it departed from the view mentioned below.

The only other reference that I want to make is to the later case of Brown, in which their Lordships followed Viola and concluded their judgment this way:

    "The question was whether, on the facts of a particular case, the complainant's attitude to sexual relations could be material upon which a jury could reasonably rely to conclude that the complainant might indeed have consented to sexual intercourse on the material occasion, despite her evidence to the contrary".
I stress the next words:

    "It was a question of degree in every case".
Then, the final paragraph of the judgment concludes that,

    "although we have not found it easy to reach a decision on this appeal, in the end we do not think that the 'evidence of sexual promiscuity' of the complainant was 'so strong or so closely contemporaneous in time to the event in issue as to ... reach the border between mere credit and an issue in the case'".
Your Lordships will have seen that there are two factors relative to the evidence of promiscuity which can make the questions admissible: the evidence must be so strong, or so closely contemporaneous.

In Clause 40, which seeks to replace the statute to which I have made detailed reference, there is no provision for allowing in evidence of past promiscuity because of its strength. It is only allowed in if there is closely contemporaneous evidence. In so far as it is unfair to refuse to allow questions in regard to previous sexual activity where that evidence is particularly strong, I should explain that the defendant is then obliged to subject himself to a situation which is unfair--the very words of the 1975 statute. It is unfair because of the strength of that evidence; it is not a question of discretion. Once you find that it is unfair as matters stand at present, the questions must be allowed.

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However, there is no provision for that in Clause 40 as now drafted. For that reason, I suggest that it cannot possibly, with fairness, take the place of the 1925 statute. I beg to move.

3.30 p.m.

Baroness Mallalieu: My Lords, I should like to speak to Amendment No. 58, which has been grouped with the amendments of the noble and learned Lord. To stop a judge who is presiding over a trial of a man accused of rape from allowing questions to be asked or evidence to be given which he, the trial judge, considers to be relevant, potentially probative and necessary in the interest of justice to ensure a fair trail of the accused, is, in the moderate language of the noble and learned Lord the Lord Chief Justice (speaking on the amendment in Committee in this House on 8th February),

    "not a recipe for the good administration of justice".--[Official Report, 8/2/99; col. 55.]
In my less measured language, this is total lunacy; indeed, this is the very stuff of which false convictions are made.

In relation to Clause 40 we are, I believe, in the very greatest danger of passing legislation through this House to deal with a situation which in fact no long exists, because the pendulum has already swung to correct an imbalance that certainly used to exist. I do not believe that I am being complacent. The days of insensitive judicial comment and the permitting of unjustified cross-examination, which was irrelevant, insulting and gratuitously intrusive, are, in my personal experience, ones which relate to a bygone age. Things have moved on a great deal.

The noble and learned Lord referred to the case of Viola, which set the framework of restrictions for a judge, and what he could permit to be asked, as long ago as 1982. But a great deal has happened in the courts, and elsewhere, since then. Today, only judges who have been specially chosen, nominated to try cases of this nature, are permitted to do so. Public attitudes have undergone a mammoth change, too. Rape is now rightly seen as a serious offence of violence and not a joke. Those convicted of rape now face long sentences and a lifetime on the sex offenders' register.

In my experience, judges are acutely aware of the need to protect the complainant as he gives her evidence. No judge trying such a case today can be unaware of the personal consequences for him or her of a tactless or inappropriate observation from the Bench or a failure to protect the witness from oppressive and unnecessary questioning. A media field day would result and the telephone from the Lord Chancellor's Department would be incandescent.

However, it is not just judges who have changed; indeed, juries have also changed. When the charge is read out at the start of a trial and jurors hear that the defendant is accused of rape, the looks that are directed at the dock before any evidence is heard are the most eloquent testimony as to how far public attitudes have shifted. An alleged sex offender starts his trial before a word of evidence is given with the presumption of guilt to overcome.

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When the Minister replies, he need not repeat his speeches given earlier in the course of the proceedings on the Bill on the horrors of rape, the right of a woman to say no at any time, or the importance of getting women to come forward and complain. Those arguments have been universally accepted for a long time and we are all agreed about them. Despite that fact, and in some ways because of it, the acquittal rates in rape cases are high. There are many theories about the reasons for that. I suspect that some cases which should have been dropped well before trial because the evidence is not sufficiently strong to sustain a conviction are, nonetheless, pursued because the prosecuting authorities fear criticism if they do not allow them to run--a criticism that they have not sufficiently backed the victims.

Serious rape cases are too often prosecuted today by very junior counsel instructed by the Crown Prosecution Service. The knowledge of jurors that a rape conviction, whatever its nature and circumstances, must result in a long prison sentence, may make them unwilling to stigmatise as rape episodes, especially those between parties who know one another, which, although they are technically rapes in law, seem to jurors more akin to incidents of bad manners, drunken misconduct or youthful misjudgment. It should not be forgotten that a significant proportion of false allegations are also made. Cases of this type usually mean that the evidence consists of one person's word against that of another, with no witnesses. The decision as to who is telling the truth in these cases is often almost impossible to make. However, Clause 40 proposes that jurors should in future be given less information, not more, to enable them to reach that decision. It is proposed--and we should not forget this--to keep from them even more of the background to the case which may enable them to reach the right decision than they are now allowed to hear.

In Committee, I put to the noble Lord, Lord Williams of Mostyn, a hypothetical illustration of a case where, under his proposals, no evidence would be allowed and no questioning permitted about matters which I ventured to suggest most right thinking people would consider necessary to reach the right verdict. In the amendments which follow in the next group, I am grateful that the noble Lord has responded positively in that respect. The Ministers's amendment, Amendment No. 57, has been framed to permit questioning about other incidents which are so similar that they cannot reasonably be explained as coincidence.

I say I am grateful to him for those changes which I anticipate he is about to propose. But I find the following difficulty. In accepting, as he has, that the clause as drafted, in some circumstances which had not been foreseen when this Bill first came before the House, would prevent questioning and evidence which is necessary to ensure a fair trial, he makes the argument for Amendment No. 58, which I propose, with great eloquence himself. Neither those who drafted this Bill originally, nor noble Lords, nor those in the other place who will examine this Bill later, can possibly anticipate

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every factual situation which may arise, in particular because human behaviour is infinite in its variety. We cannot anticipate every eventuality.

The trial judge must retain a degree of discretion over each aspect of the evidence to ensure a fair trial when the unforeseen arises. Clause 40, even as the noble Lord proposes to amend it, makes--I am sorry to say this-- a dog's dinner of the law in this area. It creates complications and uncertainty for prosecution, defence and for the judges. We should surely be trying to make new legislation both simple and certain, and Clause 40 does neither. If the Minister is still insisting on Clause 40 in some form, will he at least indicate that he will look at Amendment No. 58 and, if necessary, take it away and return with a provision, strengthened, if he likes, with the words, "in exceptional circumstances", which the Court of Appeal has just conveniently defined in relation to other legislation? But I ask him not to let this House, however well intentioned, pass legislation which may well raise the conviction rates in these cases, but do so by adding people who are not in fact guilty to the prison population.

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