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Earl Russell: My Lords, I am most grateful to the noble and learned Lord for the correction and I apologise to the House for the error. I have the paper here and I am able to look at it.
However, the acceptance of the philosophy does not answer the point about its relevance. I cannot envisage in what type of case this philosophy, however acceptable, would be relevant to the point at issue. It is that point on which I should like to be enlightened.
Perhaps I might briefly return to the point made by the noble Baroness, Lady Mallalieu. I quote from memory and, again, I hope that she will put me right if I misquote her. She said that women as a class are not to be treated as suffering from any disabilities. I take her point entirely and I agree with it. That is why I hope that if the Bill goes forward as it is it will deal equally with victims of male rape and female rape. What is in common is the trauma and not the gender, and the Bill accepts that point.
Baroness Mallalieu: My Lords, I rise to support this amendment. I have reminded myself of the lengthy debate that we had on this issue on 1st February in Committee, and in particular of the reasons given by the Minister for rejecting the proposed changes. In that debate he did not seek to argue that abuses of the kind that occurred in the two well-publicised cases which led ultimately to the Court of Appeal's judgment had continued since that judgment in May 1998. Indeed, he accepts that that judgment appears to have cured the problem by giving judges the clearest indication of what to do in these cases and confidence that robustness will be supported by the Court of Appeal. So there has been no repetition and there have been no copy-cat cases.
The Minister said that people who have been attacked are deterred from coming forward to give evidence because they fear that they may be cross-examined by their attacker in the way that the popular press reported in those two cases. He added that withdrawal of a defendant's right to conduct his own case had caused no difficulties in respect of children. What he is therefore proposing by this clause is legislation to correct a public misconception. I am very much in favour of correcting misconceptions and misunderstandings, but I do not believe that it is best done by withdrawing an important right from the defence; nor am I confident that by taking such a step the object which both he and I wish to achieve will be achieved significantly or at all.
The reasons why those who are attacked do not come forward are no doubt many and complex. Many do not want to go through the ordeal of re-living the experience; they want to put it behind them and they want to forget, especially as the trial will inevitably be delayed for some time. They may not want to see the defendant face to face; they may not have told the truth about some aspects of the case and they fear that they may be found out; or they are afraid that they may be asked difficult questions and tied up in knots by a clever lawyer. But, above all, time and time again the reason for not coming forward--one has heard it over and over--is that they fear that they will not be believed. The Bill contains means which will help in some important respects--in relation to delays; in relation to screens; and in relation to the extension of the video link. But there are some things that it is not possible to exclude. When anyone makes an allegation of serious crime, sexual or otherwise, especially when the
consequence for the person accused is loss of liberty, often for a considerable period, the accused must retain the right to challenge and explore the evidence fairly and, where necessary, firmly, in relation to the relevant issues. That does not mean bullying, embarrassing or insulting the witness. All those are things that the judge has ample power to prevent.With child witnesses there are, I accept, good reasons to restrain the right of a defendant to do that himself. A child is always at a disadvantage. By reason of his age, inevitably he will be inexperienced; he is probably inarticulate; he is more easily frightened than an adult, and more easily intimidated. For very good reasons, children are treated differently, whether they are defendants or witnesses, and rightly so. They need special protection. But to apply a blanket ban to all sexual cases, as this clause currently does, is to ignore the wishes not merely of the defendant but also of the complainant. It is ironic that many women's groups say that they would prefer to be cross-examined by an untrained and less effective defendant than by an experienced lawyer.
The present clause may well mean that a defendant is able to appeal to a jury on the ground that he has been unable to present his case as he wished. The noble Lord asked for examples of cases where it might be appropriate for someone to cross-examine in such a case. I can only say, as I did at an earlier stage of the Bill's passage, that I have had personal experience of such a case. I am quite satisfied that no lawyer would have obtained the admission that the defendant himself, cross-examining very briefly and courteously, did from someone with whom he had lived and who had made an allegation following an argument which she then admitted to his face was false.
An advocate who comes into a case, as the Bill proposes, solely for the evidence of one witness has a difficult task to perform. If the defendant who has to instruct him either fails to do so properly--in which case his task is impossible--or tries to do so but does so inadequately, which is highly likely, the result, whatever his abilities, will be unsatisfactory too. If a jury feels that a defendant is not being allowed to present his case fully as he wishes, it is likely to try to redress what it sees as unfairness by its verdict. The procedure that is proposed under this clause may well have the appearance of unfairness to an accused and result in verdicts which will reflect that and not necessarily the evidence.
The Government are rightly worried about acquittal rates in sexual cases, and particularly rape cases. They would do well--indeed, they would do better--to examine the real causes of those acquittals: cases taken to trial on evidence that is not of sufficient strength to sustain a conviction but which, because a sexual offence is concerned and there is a fear of criticism, are pursued instead of being dropped; serious cases of that nature prosecuted by very junior counsel appointed by the Crown Prosecution Service; the knowledge of juries that
a rape conviction will in every case result in a long prison sentence whatever the circumstances and degree of seriousness in their view, and when they believe that such a sentence may not be merited on the particular facts of the case that they are trying. I urge the House to consider the amendment proposed by the noble and learned Lord, Lord Ackner, with favour. I hope that the Government will do so too.6.15 p.m.
Baroness Lockwood: My Lords, the noble and learned Lord, Lord Ackner, said in moving the amendment that Clause 33 was written in absolute terms. I hope that my noble friend the Minister will resist the amendment, because in my view the law needs to be stated in absolute terms.
The question of rape is a very difficult one. It is different from all other kinds of crime. The victim of rape, as well as being a victim, often feels some sense of guilt herself. It is important that anyone who has been subjected to a crime of that kind can feel satisfied that the law will protect her and will give her an opportunity to present her case without intimidation and without fear of feeling re-tried and having once again to go through the ordeal of the rape.
The noble and learned Lord referred to the ground rules now laid down by the Court of Appeal. He said that there has been no occurrence of this kind of trial and cross-examination since May 1998. That is less than a year ago, and we do not know whether there will be similar cases in future.
Noble and learned Lords have the benefit of looking at cases from a wide perspective. However, not all their colleagues in charge of cases approach a case with the same impartiality and broad vision and breadth of experience. I should not like to leave this question to the discretion of the judge.
I accept that the noble and learned Lord has gone some way to meeting the criticisms that were made at an earlier stage. However, in an area of this kind, which is so sensitive and difficult, if there is to be a balance in any way it should be towards the victim, not towards the accused.
The Bill as drafted provides the opportunity for the accused to receive a fair trial. He may not have the right to cross-examine. But that is a small price to pay in order to give women the sense of security to come forward and present their case in a way that they would not be prepared to do if the law were less absolute than is now intended by the Bill. Were that to happen, we should not have the same security as we shall have under the Bill as drafted, and there will not be the same sense of fairness to victims of rape. I therefore hope that my noble friend will resist this amendment.
Lord Monson: My Lords, before the noble Baroness sits down, she spoke about the rights of the victim
versus the rights of the accused? Should she not have said "the rights of the accuser" versus the rights of the accused? The accuser might not necessarily be a victim.
Baroness Lockwood: My Lords, perhaps the noble Lord is right. I meant the balance between the victim of the offence and the defendant who is accused of the offence.
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