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I am unable to support the amendment. In saying so, I am fully aware that I am not a criminal lawyer. I do not have the experience of the noble Baroness, Lady Mallalieu, nor that of my noble friend Lord Thomas of Gresford. However, I am encouraged by the fact that an extremely powerful speech was made at the Committee stage by the noble Baroness, Lady Kennedy of The Shaws. I agreed with everything she said. That applies also to the remarks of my noble friends Lord Russell and Lord Lester.
I start from the basic principle that, first, it is wrong for the guilty to go free; secondly, it is wrong for the innocent to be convicted, and thirdly, as between those two, the conviction of the innocent is much the greater wrong. Clause 33 must be tested against those principles. Will it lead to the conviction of the innocent? I believe the answer to that is unequivocally no. No one would be behaving rationally if they chose to defend themselves when accused of a serious sexual offence, even if they were allowed to cross-examine the complainant. That includes cases of date rape as much as any other kind of rape.
The example given by the noble Baroness, Lady Mallalieu, is based on an assumption which can only be subjective. It is that the complainant in the case would not have made the same confession to a lawyer as she did to the defendant. There is no way in which that can be shown to be true. Indeed, it seems to me inherently unlikely. I cannot imagine circumstances in which an innocent defendant, given the opportunity to be represented, would choose not to instruct an advocate or would refuse to co-operate with an advocate instructed under Clause 37 to cross-examine on his behalf. I believe that that decision would be so irrational as to indicate that the accused needed protection from himself. Therefore, I believe that Clause 33 will not lead to the conviction of the innocent in a single case. The amendment is not necessary.
Will Clause 33 as it stands lead to more frequent conviction of the guilty? I believe that it may well do so. It is not certain, but there is a real possibility. The percentage of rapes that are reported and prosecuted is notoriously low. One reason is the reluctance of victims to face the trauma of giving evidence in court. That fear is made much worse by the possibility of being cross-examined by the defendant in person. It is true that in a few cases that has happened. It is also true that the Criminal Division of the Court of Appeal, through the noble and learned Lord the Lord Chief Justice, has given judges greater freedom than perhaps they thought they
Lord Lester of Herne Hill: My Lords, I had not intended to participate in the debate. The noble and learned Lord, Lord Ackner, tempted me to do so by, I think, referring to me--I am sure it was not meant sarcastically--as some kind of guru of the European human rights convention. The noble and learned Lord is not noted for sarcasm. I am sure that he did not mean to be sarcastic. He knows that I am not a guru of anything at all, except in my mother's eyes. In no other eyes could I be regarded as a guru.
Lord Lester of Herne Hill: My Lords, I feel rather old as I take part in this debate. Venerable I am not. And a guru? Only to my mother. I cannot claim to be more expert than anyone else in the area since I do not practise in the criminal field. I wish to respond to the temptation to say a word or two about why Clause 33 is not absolute and why it accords perfectly with the contents of the human rights convention. It is not absolute because all it does is forbid the direct personal cross-examination of the accuser by the accused. The Bill as a whole guarantees the right to a fair trial which is enshrined in Article 6 of the convention. The European Court of Human Rights, in a case called Croissant v. Germany, made clear that there was no absolute right to cross-examine in person. The convention as a whole represents a fair balance. All the articles, even the absolute prohibitions, have been interpreted as balanced.
What are the other rights that have to be balanced? They are the right not to be subjected to degrading treatment in a trial and the right to respect for personal privacy. I am satisfied that if we are to preserve those competing public interests and rights, they must be balanced by some body. On this occasion, although I deprecate statutes that interfere with judicial discretion where judicial discretion is necessary I believe that Parliament is right to make it clear that there should be no direct personal cross-examination for the reasons I have given. The judges can normally be
This is not an absolutist position; it is a position that fairly balances matters. I am sorry that wise judges have failed in the past to prevent two gross cases of abuse of human rights, the two to which the noble and learned Lord referred. For my part, two are quite enough. It is time to put an end to such cases and to make sure that there is not a third.
The guidelines of the noble and learned Lord the Lord Chief Justice are helpful. However, they give too much latitude--as does the noble and learned Lord's amendment--for a repetition of conduct of that kind. For those reasons, I entirely agree with everyone who has spoken against the amendment.
Lord Richard: My Lords, I have not taken part in any of the proceedings on the Bill although I have listened from time to time to a fair proportion of the discussion. I would find it difficult to support the Government if they were to resist the thrust of the amendment. I shall tell the noble Lord, Lord Lester, why. I have practised at the criminal Bar. I have had the opportunity of appearing in trials which would be caught by this provision. The idea that you can somehow create a proper balance, as he puts it, by imposing an absolute prohibition on the right of the defendant to cross-examine in person is a proposition which I find difficult to understand and even more difficult to accept. What the Government propose here is simply the removal of a right which, at present, exists on the part of the individuals to defend themselves if they so wish and to cross-examine if they so wish. My noble friend Lady Lockwood spoke in very sincere terms, but not in relation to the amendment. The argument seemed almost to be that one should abolish cross-examination altogether in rape trials.
As for the effect on the complainant, one has to take account of the fact that if a defendant wishes to defend himself, why on earth should he not be prepared to defend himself? Once the Court of Appeal, in the person of the Lord Chief Justice--
Lord Lester of Herne Hill: My Lords, I am most grateful to the noble Lord for giving way. Since he asked the question, would he accept that one answers it by saying that it is because it degrades the alleged victim, and therefore should not be permitted?
Lord Richard: My Lords, with great respect, a trial is a trial. The person who is accused of a criminal offence is entitled to a fair trial and in that trial the evidence has to be tested. What this amendment and this discussion is about is the way in which that evidence should be tested in a criminal trial. If a defendant chooses to defend himself--and, with great respect, that
Earl Russell: My Lords, I am most grateful to the noble Lord, Lord Richard. I entirely accept his proposition that the evidence should be tested, but can he give me one circumstance in which the evidence can be properly tested by the accused and cannot be properly tested by counsel?
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