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Lord Richard: My Lords, I cannot invent an example off the top of my head, but I can think of one possibility where the accused, immediately before cross-examining the complainant, finds that his counsel is either unavailable or that he cannot get on with his counsel and the judge says that the trial has to go on. In those circumstances, is it seriously proposed that the defendant should not be able to cross-examine? I find that a very strange proposition indeed. I could imagine circumstances in which a court would say that it was unfair to a defendant not to be permitted to cross-examine, but at the end of the day this is a fairly simple issue. The simplicity of the issue can be summed up in one sentence as follows. Once the judges are prepared to control the way in which a defendant cross-examines in person, is it right for Parliament to take away his right to do it? I am bound to say that I am not convinced of that. I apologise to my noble friend on the Front Bench for doing what I have not done in the course of all these proceedings before, and that is to express my unease with the proposal that the Government are making. I would find it very hard indeed to support the Government if they were to oppose the amendment put forward by the noble and learned Lord, Lord Ackner.

Lord Thomas of Gresford: My Lords, the noble Baroness, Lady Lockwood, said that rape and sexual offences are very different from other crimes. That is true. However, the difference lies not so much in the harm or hurt that is caused to those who are the victims of crime. What really distinguishes rape in particular from other crimes is that in very many cases, although it can be shown that sexual intercourse has taken place, there is no visible injury and by the nature of things there is no corroboration, because sexual intercourse normally takes place in private.

In many cases--indeed in cases in which I have recently been involved--there is no complaint. The complaint may happen, as in the case to which I referred, some 40 years later. Those are some of the distinguishing features of rape trials which make them

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rather different from other cases and rather difficult to deal with. What my noble and venerable friends do not entirely understand, but those of us who have spoken who have practised at the criminal Bar do, is the delicate balance of a criminal trial: the dynamics of a criminal trial under an adversarial system.

What it requires is that there be counsel of reasonably equal standing, that the judge be fair and does not intervene, that witnesses be called on either side and be subject to fair cross-examination controlled by the judge, and that after the summing-up the decision is made by a jury. When people go on about the rate of acquittals in rape cases I think they rather tend to forget that it is 12 ordinary people, selected by lot, who actually make the decision. There is not some kind of lawyers' conspiracy as a result of which rape conviction levels are low. It happens because ordinary people, who understand the witnesses who are brought before them and who have common sense on their side, realise that the charges are not made out.

The Government's proposal introduces into this delicate balance of a criminal trial an entirely novel and strange element: that is to say, that a defendant should no longer be entitled to defend himself but should have somebody appointed to do it for him. Once you introduce a person who appears on behalf of a defendant who is reluctant to have him, who perhaps objects to having him and who gives him no proper instructions and who does not fully understand the case he is putting forward, there is a twist put into the whole procedure which will result in injustice. That does not mean to say it will necessarily result in the acquittal of a defendant--it may very well result in his conviction--but it does twist all the procedures that have developed into safeguards for the individual and in the public interest over many centuries. I really have to disagree with my noble friend Lord Goodhart, who sees nothing wrong with this and thinks that it is possible to introduce this new element into a criminal trial in front of a jury without distorting the result.

The arguments that are advanced against this amendment are that cross-examination by the individual defendant may prevent complaints coming forward from people who are truly victims. It may have a deterrent effect and, as the noble Baroness, Lady Mallalieu, put it, this is legislation to correct a misconception. I believe that where the Government fall down on this topic is that they make no attempt to inform the public of what is happening in the criminal justice system. For example, there is no attempt to point out to the public the training that judges undergo, that no judge can sit on a rape case unless he has what is colloquially called "the rape ticket"--that is to say, that the Lord Chancellor's Department has realised that he is of sufficient weight and experience to conduct cases of this sensitivity. Rather do the Government go along with the press and the headlines, and seek by legislation to cut down the discretion and the control of the judiciary, to put a cap upon what they customarily do.

It is rather ironic that this Bill and the amendments that have been brought forward by the noble Lord, Lord Williams of Mostyn, do a great deal to improve the position of the press. The press cannot be challenged.

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The press has to be supported, and so if the press has headlines which say that rape is rampant and something has to be done about it, then this Government, instead of informing the public about the true situation, take a different view.

In Committee, the noble and learned Lord, Lord Bingham, said that miscarriages of justice must be prevented at all costs. That was challenged by the noble Lord, Lord Williams of Mostyn. He thought that was not necessarily so and that miscarriages of justice should not be prevented at all costs. He thought that there is a balance to be struck which should be in favour of the victim. That is the expression used by the noble Baroness, Lady Lockwood: there has to be a balance in favour of the victim, not the accused. If one looks at the left-hand panel of your Lordships' Chamber one observes the figure of Justice, with the balance evenly held. That is the tradition of this country and of the criminal justice system, which must be preserved at all costs.

The amendment seeks to give to the judge the power to come to an appealable decision on whether it is unfair to the defendant not to allow him to cross-examine. It puts the matter in his hands. At an earlier stage today the noble Lord, Lord Williams, said that those who upheld the role and discretion of judges were deeply conservative. I do not believe that that is true. In the liberal tradition of this country we support judges and oppose the statutory imposition of fetters on their discretion. I support the amendment.

Viscount Brentford: My Lords, it is important to bear in mind that there are two aspects to be considered when debating this amendment. The first is justice in the particular case that is being heard. From all that I have heard from extremely learned counsel and judges I believe that to be fairly evenly balanced on the basis of the Bill as presently drafted. The other aspect that I wish to emphasise is that there is no justice for a woman who has suffered rape but is not prepared to give evidence to lead to a prosecution of the rapist. From my researches a good number of women suffer rape but ask whether there is any danger that they will be brought face to face with their alleged rapists who will then be able to cross-examine them. On the basis of the Bill as presently drafted, the police or solicitor--whoever the woman speaks to--will be able to give the unequivocal answer that there is no possibility of the accused being able to challenge her face to face. That is why I prefer the Bill as drafted without the amendment.

I fully understand the fact that judges are likely to act properly and sensibly. The position is evenly balanced as the Bill is drafted. However, I believe that there will be a lack of justice if the amendment is accepted because some women will not be prepared to give evidence in court against the accused. Therefore, I shall vote against the amendment.

Lord Jacobs: My Lords, I sit among a large number of lawyers, so in the circumstances it is perhaps a little inopportune for a layman to get up to speak. I have listened very carefully to the debate. The main argument in favour of the amendment appears to be that not only

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must the defendant be given the opportunity to cross-examine but that reliance can be placed on judges not to let matters go too far. However, so far no lawyer has mentioned the difficulties faced by judges. I refer to the example of the two cases in which cross- examination went on for days on end. In those examples the judges were worried, probably rightly, that if they curtailed the cross-examination the matter might go to appeal. It is difficult to decide how far the cross-examination should proceed. All of us sitting here would probably say that one day's cross-examination would be ample. However, under some circumstances it might go on for very much longer than that. For that reason, having heard all of the arguments, on balance I believe that the amendment should be opposed.

6.45 p.m.

Lord Cope of Berkeley: My Lords, this matter was discussed at an earlier stage of the Bill. I shall not attempt to discuss all of the arguments that have been put forward, even if I were capable of so doing. On earlier occasions I have made clear that this is certainly not a party matter but a matter of conscience. In this matter I speak only for myself. Once again the noble and learned Lord, Lord Ackner, has moved an amendment and explained it with his usual clarity. It has been made clear again that this is a difficult issue on which to strike a balance. In practice, the cases that it covers are rare. Few defendants accused of rape conduct their own defence, and usually it is wise not to do so. The few who do conduct their own defence and cross-examine the complainants often prejudice their cases in the eyes of the jury. As the noble and learned Lord informed us, the Court of Appeal has already limited what can be asked and the way in which cross-examination is conducted.

In spite of all that, and although it is a rare occurrence, whether we like it or not this has a very big effect on the public mind. If somehow or other we could persuade the public to listen to and take account of all these debates, conceivably their minds might be changed, but I do not believe that there is any realistic possibility of that at the moment. The possibility of the complainant being cross-examined by the attacker, remote as it may be, and controlled by the rules of the Court of Appeal as it may be, certainly adds to the pressure on the victim against going into the witness box. I say "victim" because here I refer to the genuine complainant. I realise that there are other cases. I am aware from some constituency cases of which I have knowledge, apart from other reports, how difficult it is to persuade genuine victims to be prepared to go into the witness box. Without them the case fails. If those who try to ensure that justice is done can say to someone whom they believe to be a genuine victim, as they could if the Bill were passed without amendment, that the defendant--usually a man--will not be able by law to cross-examine, that is a much more powerful and persuasive argument than to say, as they would have to say otherwise, that it is very unlikely that he will cross-examine but that if he does he will be constrained

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by the rules of the Court of Appeal. That is not nearly so persuasive an argument to use in these very emotional and difficult cases.

I believe that if the Bill is unamended there will be fewer miscarriages of justice resulting from the failure of the victim to give evidence. One may describe that as lack of access to justice rather than a miscarriage of justice. Whatever way one looks at it, it is certainly a failure of justice. I do not claim that this clause by itself, or that the Bill as a whole with the other provisions relating to screens, video and other forms of protection, will completely end the reluctance of victims to give evidence--there are many other reasons for that reluctance--but I believe that it will help. In that way it will reduce the number of miscarriages of justice. For that reason, and speaking only for myself, I shall vote against the amendment.

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