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Lord Hacking: My Lords, before the noble Lord sits down perhaps I may put a question so that I understand
what has been said. Is the present position under the Bill that there is no right to expose the sexual history of a defendant if he asks questions of the complainant?
Lord Goodhart: My Lords, as I understand it that is the position.
Lord Cope of Berkeley: My Lords, although I speak from the Dispatch Box on these Benches this is not a matter of party policy, any more than it is on the Liberal Democrat Benches, as has been demonstrated in the past few minutes. In what I say I express my own views on the matter.
Although it is a little premature, I welcome Amendments Nos. 56 and 57 which the Government intend to move a little later to introduce the proximity in time and similarity rules in substitution for the 24-hour provision. I was one of those who criticised the 24-hour provision in the debates at Committee stage. I am not satisfied that the new formulations will end all argument on the matter. We have heard enough in the past hour to understand that.
The noble and learned Lord, Lord Ackner, quoted my words in the earlier debate and said that in paraphrasing what I had said the Minister had misrepresented me. On 8th February I said:
- "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".--[Official Report, 8/2/99; col. 56.]
I do not think that it was therefore unfair for the Minister (paraphrasing my words) to state the point of principle as being whether it was to be left to a discretion or was to be the subject of a parliamentary structure. But he inserted after "left to a discretion" the words "which many believe to have been inappropriately exercised". I believe that that was intended to be the opinion of the Minister rather than a quotation from me. Certainly, I did not express that view and did not wish to make that claim. Provided that the noble Lord was, by that phrase in the middle, expressing his own view--he nods to indicate that he was--I have no objection to what he said.
The question that has bothered many noble Lords who have considered this matter over the past few weeks--indeed, years--and has figured in this debate is what is and what is not relevant. The Minister said very firmly in earlier debates that sexual history was not relevant to consent. However, a letter that has attracted some recent publicity written on behalf of the Women's Unit, which I understand the noble Baroness the Leader of the House chairs, appears to take a different view, judging from the press. It suggests that sexual history could be relevant to belief in consent. I am very grateful to the noble Lord the Minister for having sent me a copy of that letter and also a long explanation of what the Women's Unit intended to say. I believe that he has sent copies to those other noble Lords who spoke in the debate in Committee and also placed a copy in the Library of the House. Therefore I shall not dwell upon it.
However, it makes an important difference as to whether we are talking about what is relevant to the consent of the complainant at the time or what is relevant to the accused's belief in her consent at that time. I believe, with the Minister and the noble Lord, Lord Lester, that a woman's consent is hers to give or to withhold on each occasion, regardless of her previous sexual history.
That still leaves the question, which will be an issue in many trials of this kind, as to whether or not she is telling the truth to the court about her state of mind at the time of the offence. I am concerned about the meaning of the word "consent" in Clause 40(3)(a) which says:
- "that issue is not an issue of consent".
I do not think that the new wording will necessarily prove to be entirely satisfactory, as I have mentioned, and it seems to me that the Law Commission was right to suggest a little while ago an amendment to Section 2 of the 1976 Act so as to modify a potential defence against a charge of rape. The key aspect of their proposal--I put it in layman's terms because I am not sure that I would get it entirely correct in legal terms--is that it should not be an offence to say that the accused believed in the victim's consent unless it was reasonable for him to believe it.
It is the opinion of the Criminal Bar Association and others--
4.30 p.m.
Lord Ackner: My Lords, I am sorry to interrupt the noble Lord but could he tell us where the Law Commission has expressed that opinion? I ask because I was in touch with the Law Commissioner who specialises in the criminal side. In, as I recall, the 1995 discussion paper, the Law Commission took the view that the present situation was the correct one. One had to look at the behaviour of the accused subjectively, not objectively, and it was not right to consider putting in the defence that he "reasonably" believed that she was consenting. I may be entirely wrong but I did bother to check it with Mr. Silver, the commissioner dealing with this; and that is what he told me.
Lord Cope of Berkeley: My Lords, I certainly defer to the noble and learned Lord's legal contacts in getting these matters accurate. I am relying on the Criminal Bar Association's response to Speaking Up for Justice, in which they quoted an extract from the consultation paper of 1995 mentioned by the noble and learned Lord. That paper contained a proposal to insert the word "reasonable"; I am paraphrasing. But whether the Law
Commission subsequently supports that, is a matter of great importance, on which I cannot authoritatively comment, at least at this point.However, judging by this more recent document, the Criminal Bar Association apparently believes that such a change would significantly reduce the problem in the operation of Section 2. I am also unwilling to be too dogmatic as to whether the Criminal Bar Association is correct in that view, but it is certainly an authoritative view which is worth drawing to the attention of the House. I mentioned this matter in our earlier debates and the noble Lord the Minister did not comment on it, although he did comment on it in his letter to me, which I mentioned earlier. He said, in short, that this question is being reviewed at the moment to determine whether this is a good idea and whether it would help. It seems to me that it might have been better to wait until that question had been determined before entering into changes in evidence, such as are being put forward in this Bill at this time.
In any case, the real point before us is whether we need to make any new statutory rules about sexual history at all. Most of your Lordships who have spoken in this debate--most from very great experience of the law--are concerned that if we do so in the terms suggested here in the Bill as it is proposed to amendment it, there may be miscarriages of justice in the cases that come to court. I accept that, and none of us wants to see miscarriages of justice in cases that come to court, but I am concerned also about miscarriages of justice as a result of cases not coming to court.
I believe it is true to say that quite a large number of women are deterred--not unreasonably deterred in my view--from pursuing their complaints. That in itself leads to miscarriages of justice. Like the noble Lord, Lord Lester, I do not support all the recommendations of Women Against Rape, but in its paper they make the point that only one in 200 reported rapes results in a conviction. I have no means of establishing whether that figure is entirely accurate, and perhaps it is a great exaggeration, but, even if it is, it still leaves a very worrying position.
This Bill helps in a number of ways. Earlier clauses of the Bill set out provisions to protect vulnerable witnesses through screens, video links and other arrangements which we have already discussed. The part of the Bill that we are discussing today also attempts to help. Although the Bill does not go as far as some would wish, these clauses as well as the earlier ones do help. I think they will mitigate the perceived ordeal of victims when they come to court, and if that leads to more cases being decided by the courts--either way, whether the accused is found guilty or not guilty--to me that would increase the possibility of justice being done in more cases.
It is important that we should do our best to lessen the fears of women in bringing cases, given the imbalance that has been suggested to us. That, in my judgment, is the bigger miscarriage of justice at the
present time. Therefore, I am prepared to support these clauses remaining in the Bill in order to deal with that bigger miscarriage of justice.
Lord Williams of Mostyn: My Lords, normally your Lordships speak of the language of debate as being moderate. Therefore, it is something of a surprise to be accused of operating in total lunacy and, by the noble Lord, Lord Thomas, of having no argument apart from attacking the judges. I believe that no one could accuse me of attacking the judges. The first comment I made at the Despatch Box as a Home Office Minister was that we always hoped to give a decent regard to the opinions of the higher judiciary. I hope that I have demonstrated that. Even though I have not on every occasion agreed with every syllable pronounced, I can say that we always listen with care. If I may have corroboration of my "non-guilt", witness the amendments that I have tabled.
Plainly, this is not an easy area of the law. There has not been unanimity of approach, first, as to the nature of the problem and, secondly, as to the nature of the solution. For instance, the noble Lord, Lord Goodhart, in seeking a more equitable trial of these difficult charges--I believe that I paraphrase him fairly--proposed that if there were an inquiry into a complainant's sexual history there ought also to be a consequential and equivalent inquiry into the defendant's sexual convictions. That is not possible at present. If there is an attack on the credit of the witness, the only cross-examination allowed is under the appropriate subsection of the Criminal Evidence Act 1898. That, if it is properly analysed (which it is not always) relates to whether the defendant, if he gives evidence--and I underline that--is worthy of belief; in other words, whether he has relevant convictions of dishonesty. Sexual convictions are not always convictions in respect of dishonesty, although they could be if sexual intercourse were procured by fraud.
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