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Division No. 2


Ackner, L. [Teller.]
Aldington, L.
Barber, L.
Cadman, L.
Campbell of Alloway, L.
Carnegy of Lour, B.
Carnock, L.
Clark of Kempston, L.
Courtown, E.
Craigavon, V.
Cross, V.
Darcy de Knayth, B.
Dundonald, E.
Elliott of Morpeth, L.
Falkland, V.
Fookes, B.
Fraser of Carmyllie, L.
Harmar-Nicholls, L.
Harmsworth, L.
Harris of Greenwich, L.
Hayhoe, L.
Holderness, L.
Hooson, L.
Hurd of Westwell, L.
Ironside, L.
Kintore, E.
Lane, L.
Leigh, L.
McConnell, L.
McNair, L.
Mancroft, L.
Monson, L.
Munster, E.
Nunburnholme, L.
Pearson of Rannoch, L.
Renton, L.
Sharples, B.
Stockton, E.
Stoddart of Swindon, L.
Swinfen, L.
Thomas of Gresford, L. [Teller.]
Thomas of Gwydir, L.
Vinson, L.
Weatherill, L.
Wharton, B.
Windlesham, L.
Wynford, L.


Acton, L.
Addington, L.
Alli, L.
Amos, B.
Ampthill, L.
Archer of Sandwell, L.
Ashley of Stoke, L.
Bach, L.
Barnett, L.
Blackstone, B.
Blease, L.
Borrie, L.
Bragg, L.
Brentford, V.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Byford, B.
Carlisle, E.
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]
Castle of Blackburn, B.
Christopher, L.
Clarke of Hampstead, L.
Clement-Jones, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Colwyn, L.
Cope of Berkeley, L.
David, B.
Davies of Oldham, L.
Desai, L.
Dholakia, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eden of Winton, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Fitt, L.
Gilbert, L.
Glenamara, L.
Goodhart, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Gray of Contin, L.
Gregson, L.
Grenfell, L.
Hacking, L.
Hampton, L.
Hamwee, B.
Hardie, L.
Hardy of Wath, L.
Harris of Haringey, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. [Lord Chancellor.]
Islwyn, L.
Jacobs, L.
Jay of Paddington, B. [Lord Privy Seal.]
Jeger, B.
Jenkins of Putney, L.
Kennedy of The Shaws, B.
Kennet, L.
Kirkhill, L.
Lester of Herne Hill, L.
Levy, L.
Linklater of Butterstone, B.
Lockwood, B.
Lofthouse of Pontefract, L.
Lovell-Davis, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller.]
Mackenzie of Framwellgate, L.
Maddock, B.
Mar and Kellie, E.
Masham of Ilton, B.
Mason of Barnsley, L.
Merlyn-Rees, L.
Miller of Hendon, B.
Milner of Leeds, L.
Molloy, L.
Monkswell, L.
Morris of Castle Morris, L.
Morris of Manchester, L.
Murray of Epping Forest, L.
Newby, L.
Nicol, B.
Norton of Louth, L.
Orme, L.
Palmer, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Razzall, L.
Rea, L.
Renwick of Clifton, L.
Rodgers of Quarry Bank, L.
Rowallan, L.
Russell, E.
St. John of Bletso, L.
Sandberg, L.
Sawyer, L.
Sefton of Garston, L.
Sewel, L.
Sharp of Guildford, B.
Shepherd, L.
Simon, V.
Simon of Highbury, L.
Smith of Gilmorehill, B.
Steel of Aikwood, L.
Stone of Blackheath, L.
Strabolgi, L.
Taylor of Blackburn, L.
Thomas of Macclesfield, L.
Thomas of Walliswood, B.
Tomlinson, L.
Tope, L.
Trefgarne, L.
Turner of Camden, B.
Uddin, B.
Ullswater, V.
Walker of Doncaster, L.
Warner, L.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
Whitty, L.
Wilcox, B.
Williams of Crosby, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Winchilsea and Nottingham, E.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

23 Mar 1999 : Column 1208

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

Lord Ackner moved Amendment No. 16:

Page 29, line 2, leave out ("and") and insert ("or").

The noble and learned Lord said: My Lords, this is almost a sister amendment to the one we have just dealt with. What one needs to do is compare the statutory provision as it now is with the statutory provision which the Government wish to put in. The statutory provision is found in the Sexual Offences (Amendment) Act 1976. That Act came into existence as a result of a special committee presided over by Mrs. Justice Heilbron because of anxieties which were being felt in relation to the law on rape. Provision was made with regard to restrictions on evidence in rape cases. The relevant provision is quite short. It is Section 2(1) and 2(2). Section 2(1) states:

    "If at a trial any person is for the time 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",
and these words are important,

    "with a person other than that defendant".

Subsection (2) provides:

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

Guidance has been given and I shall not deal with it in detail. However, it is convenient to refer briefly to the case of Viola in 1982. In the words of the then Lord Chief Justice, the noble and learned Lord, Lord Lane, that set out very clearly that the first question which a judge must ask himself is:

    "Are the questions proposed to be put relevant according to the ordinary common law rules of evidence and relevant to the case as it is being put? If they are not so relevant, that is the end of the matter".
The second matter which the judge must consider is:

    "if the questions are relevant, then whether they should be allowed or not will of course depend on the terms of Section 2",

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which I have read out.

What that comes to is that it would be unfair to a defendant if it was more likely than not that the particular question or line of questions, if allowed, might reasonably lead a jury properly directed in the summing-up to take a different view of the complainant's evidence from that which they might have taken had the question or series of questions not been allowed.

One turns now to what is suggested in its place. I have referred to it as a convoluted piece of drafting and I shall not read the whole of Clause 40. However, I shall read out the opening words because it is important that one has them in mind. Clause 40 states:

    "If at a trial a person is charged with a sexual offence, then, except with the leave of the court ... no evidence may be adduced, and ... no question may be asked in cross-examination, by or on behalf of any accused at the trial, about any sexual behaviour of the complainant ... The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied",
and here come the two matters on which the court must be satisfied, and they are cumulative,

    "(a) that subsection (3) or (5) applies, and (b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case".

Subsection (3) states:

    "This subsection applies if the evidence or question relates to a relevant issue in the case and either...that issue is not an issue of consent; or ... it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged ... (i) to have taken place at or about the same time as the event which is the subject matter of the charge against the accused, or (ii) to have been, in any respect, so similar to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place at or about the same time as that event that the similarity cannot reasonably be explained as a coincidence".

I then jump to subsection (5) which states:

    "This subsection applies if the evidence or question...relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and ... in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused".

It could well occur that the matters required under subsection 2(a)--that subsection (3) or (5) applies--do not apply but the judge, after careful consideration, considers that a refusal of leave might have the result of rendering unsafe a conclusion of the jury as a result of refusing that material.

That is an extremely odd situation to find on the face of a Bill; that a trial is to proceed notwithstanding that the judge has been obliged by Parliament to reach a decision, which,

    "might have the result of rendering unsafe a conclusion of the jury".
There will be those on the Bench who may well take the view that if a judge reaches that decision he should stop the case because to continue could have the result of an unsafe conviction which can then be put right only by an appeal.

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The Minister was asked to deal specifically with that by my noble friend Lord Bledisloe on the second day of the Report Stage; that is, on 8th March 1999. The noble Viscount said:

    "My Lords, before the noble Lord sits down"
referring to the Minister,

    "perhaps I may ask whether he accepts, on the construction of subsection (2) and the use of the word 'and', that there will necessarily follow, at least in logic, situations where the judge considers that to exclude the evidence would render the conclusion unsafe but, nonetheless, he is debarred from admitting it by subsection (3) or subsection (5)".
That provoked a very short answer in these terms:

    "My Lords, we need to turn our minds to the proper analysis of Clause 40".--[Official Report, 8/3/99; cols. 35 and 36.]
That is what I seek to do and I hope, on this occasion, that we shall receive an answer from the Minister.

Perhaps I may show your Lordships how this may work in practice, just to highlight the absurdity. As I see it, if I were the defendant, I could not ask the question of the complainant, "We have lived together for five years, have we not?" because that is not permitted, as I understand it, by the provisions. "I am not asking about something contemporaneous; I am asking about something in the past, but it is immensely relevant because it will be the foundation of my defence that the lady consented".

Imagine a case where a man has been led on to have sexual relations with a woman and, after that experience, she tells him, "I am a prostitute and my fee is £100. If you don't pay me that fee, I shall allege that you raped me". As I see these provisions, I would not be allowed to ask that question. Again, that is not dealing with contemporaneous conduct, as she has been a prostitute for many years. I do not suggest, for one moment, that the fact that a woman has been a prostitute means that she consented to anything; but, where there is a clash between the complainant and the defendant, that is one of the factors that one would expect a jury to take into account.

I have sought to right this by a very simple process of taking the word "and" out of paragraph (a) so that it is not cumulative, and putting in its place "or". So, the material would go to the jury if the court considered that the refusal of that material might have the result of rendering unsafe a conclusion of the jury, or that material would go before the jury if subsections (3) and (5), which I have read out, apply.

I am sorry that our resident expert on European law is not with us but, in my respectful submission, I would have suggested that subsection (2) as it stands, with the word "and", is in breach of the relevant convention because it indicates on the face of the Bill that there can be a situation in which material which is relevant has been refused because it does not come within a couple of categories but the judge, nevertheless, is put in a position where the trial is apparently to proceed although the result may well be an unsafe conviction.

I am sorry that at the moment there is no real prospect of an authoritative contradiction, but I would have submitted that such a provision on the face of a Bill cannot enable the Minister's certificate about

23 Mar 1999 : Column 1211

compliance with European human rights to be valid. In those circumstances, I beg to move my amendment, confident that if it is agreed to we would be complying with the European Convention on Human Rights and there would be no real prospect of an unsafe conviction.

7.30 p.m.

Lord Desai: My Lords, my Amendments Nos. 17 to 20 are grouped with those of the noble and learned Lord, Lord Ackner, and, for the convenience of the House, I shall speak to them together.

As noble Lords are aware, I am not a lawyer but a lay person. In Committee I tried to argue on the side of the complainant about Clause 40. I was unfortunately not present on the second day of Report when the amendments tabled by my noble friend were debated and accepted. However, if one reads Hansard, one sees that much of the debate was not on those two amendments but on others which argued on the side of the lawyers and judges rather than that of the lay complainant, if I may so describe it.

These amendments concern Clause 40(3) which was introduced on Report. I should like to deal with them in turn. In a previous debate, the noble Viscount, Lord Brentford, made an interesting comment which I should like to use as a preface to my speech. It is right that the legal system should ensure that although the guilty may escape conviction, no innocent person shall be convicted. That is quite right.

However, it must be said that although that may be true on a case-by-case basis--and, indeed, it is a vital freedom that we have--the whole system has failed women in rape cases. That can be seen by the lack of complaints. Obstacles are set up, whether legal or psychological, which prevent women from coming to court. The literature, which is now quite extensive, shows that there are bitter complaints about the way the courts deal with such cases. That indicates to me, as a lay person, that something must be done about the system. Certain presumptions in our culture are taken as obvious truths and are not even questioned.

My Amendment No. 17 deals with the first of them, which is all about belief in consent. I remember saying in Committee that, as far as I am concerned, consent is consent, and nothing else. There has to be real consent at the moment when the incident is alleged to have happened. I take an almost existential view of this--that the past and the future do not matter and that all that matters is whether, at the moment in question, there was consent. I remember that in Committee my noble friend Lady Mallalieu introduced the fanciful concept of "the balcony scene". I said that I did not care how many times a woman had staged the balcony scene, or even if it happened four hours before the incident; the point was that if she did not consent at that moment, she did not consent.

The idea that belief in consent can be admitted as a ground of defence can almost be described in the words of the noble Viscount, Lord Tenby, who referred to driving a coach and horses through the provisions. That would damage Clause 40, which was very good when it started out.

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In a largely sexist society, some men believe that all women are there for them to have sexual relations with and they cannot get it into their heads that a woman has a mind of her own and an autonomy of her own and that when she says "No", she may actually mean "No". Regardless of what such men's friends may have told them about the woman or what they may think that they have heard, they must realise that "No" means "No".

That view was taken by the Law Commission. I refer to section 7.19 on page 95 of its Consent and the Criminal Law, which states

    "Arguably this should depend on the nature of the defendant's reasons, (if any) for believing that she does consent when she obviously does not. If, for example, he thinks so merely because he has been told by a third party that he can expect her to resist, we consider that it is arguable that such a basis for his conduct should be regarded as simply illegitimate--that, if he chooses to ignore the woman's actual response in favour of what someone else has told him, he must take the consequences, because his conduct involves a denial of her autonomy and a lack of respect for her status as an individual with a will of her own. Similarly, if he thinks that she consents because he thinks that when a woman says "no" she means "yes", it is equally arguable that he is relying on an attitude towards other people (female or male) which is no longer acceptable. The question is whether society should state clearly that a man who ignores a woman's express refusal will not be permitted to claim that he did not think she meant it".
That is a clear statement about belief in consent.

I have tabled Amendment No. 17 because I am worried that, although sexual history cannot be introduced to show sexual consent, it may be brought in by the back door to show something about belief in consent. Belief in consent would then become another spurious ground on which many matters which we did not want to be introduced into a rape trial would be introduced. That is why my Amendment No. 17 seeks to insert the words on the Marshalled List into subsection (3)(a).

Amendments Nos. 18 and 19 are slightly different. They relate to the concept of similar behaviour. Amendment No. 18 is cast much more broadly. Amendment No. 19 is much more narrowly drawn and deals with subsection (3)(b)(ii). Again, the same kind of issues arise. When we speak about "similar behaviour", relations with third parties might be introduced as might previous history. Indeed, all sorts of what I would consider to be irrelevant details would arise, such as those not relating to the moment of the alleged incident.

I do not like the 24-hour provision which has been introduced because I think that 24 hours are a long time in a person's life. A person may change his or her mind in a period of 24 hours. People can get divorced in 24 hours--or even married! Therefore, with regard to the "similar behaviour" statement, we should make quite sure that any evidence being admitted has probative value. The notion of probative value was cited in the Canadian case. I am not a lawyer so I shall not refer to that except generally. If such evidence is introduced, one must be quite sure that it is not cited only to prejudice the jury or to upset the complainant. It must have probative value. As it is now quite late, I rest my case there and commend my amendments to the House.

23 Mar 1999 : Column 1213

7.45 p.m.

Lord Monson: My Lords, in introducing his series of amendments, the noble Lord, Lord Desai, suggested that there were two opposing camps, so to speak, in this matter. He referred to a lawyers' and judges' side in opposition to the lay and complainants' side. As a layman myself, and someone who is just as ignorant of the law as the noble Lord, I do not think that it is quite so simple. The noble Lord has forgotten one important group. What about the unjustly accused?

Let us consider the case of a girl student who, from time to time, tends to drink too much, as students often do and as students have always done throughout history. One evening, in an alcoholic haze, she allows herself to be taken advantage of, to use a very old fashioned phrase, and the next morning she wakes up stone cold sober, albeit with a throbbing headache, and notices with horror a male student in bed next to her. She sincerely but mistakenly believes that she never consented and that therefore she has been raped. What is the poor male student, the innocent male student, to do if he is not allowed, for example, to cite previous cases of similar behaviour on the part of the lady in question?

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