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Lord Goodhart: My Lords, I have a good deal of sympathy with what the noble Lord, Lord Desai, suggests, but I think that he may be on the wrong track. The problem is not in the procedure, but in the substantive law. It seems to me that the English law has gone wrong in allowing unreasonable belief as a defence to a charge of rape. To make that change in the law so that belief in consent was only a defence if it was reasonable would involve a change in the substantive law on rape, and that is not something that can be done in this Bill.

The problem with the noble Lord's amendments is that they would exclude relevant evidence not only in cases where belief was unreasonable, but also in cases where the belief was reasonable. That is why I do not feel able to support the noble Lord in his amendments although I have much sympathy with the motivation behind them.

Baroness Mallalieu: My Lords, the noble Lord, Lord Desai, says that questions asked in this area must have probative value. That is one of the tests currently applied under the present law. Questions as to previous history are not permitted by the judge unless they have probative value.

The noble Lord said that the issue is whether the woman consented at that moment and that what happened previously and what happened subsequently are irrelevant. However, the jury has to decide whether the woman consented at that moment. It may well be that in certain circumstances things which have happened before or subsequently may assist members of the jury to reach the right verdict about her view at that time. If a woman says "No" and the defendant then tries to advance the defence that he believes that she consented, he is unlikely in my experience to be believed by a jury. For those reasons, I cannot support the noble Lord's amendment, but I strongly support that tabled by the noble and learned Lord, Lord Ackner.

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The Minister must be aware that there is a profound dismay at the Criminal Bar about the provisions of Clause 40; it is one shared by many of the judges who will have to try the cases. The clause is widely felt to be not only unnecessarily complex, but also draconian in its effects. My best efforts at earlier stages of the Bill and in subsequent correspondence with the Minister, for which I thank him, failed to dissuade him from his belief that he has "got Clause 40 about right". I leave it tonight to others and also to those in another place to try to amend the clause. I have little doubt that should it reach the statute book in its present state without amendment, in common with the noble and learned Lord, Lord Bingham of Cornhill, when he spoke at Committee stage, justice in some cases will not be done.

Lord Thomas of Gresford: My Lords, it is always difficult to comprehend the sort of circumstances that can arise in a rape trial before it happens. But I want to pose a simple situation. Suppose a man and woman are living together happily for a period of time but then another man comes into the woman's life and she runs off with him. He then leaves her and she returns to her original partner. It is not a complicated set of facts; it is something that might frequently happen. Suppose she then has a row with her original partner about having run away with the other man and following that row she goes to the police and complains that her partner raped her.

That is not caught by subsection (3), which says:

    "This subsection applies if the evidence or question relates to a relevant issue in the case and either ... (b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged ... (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".
It has nothing to do with that situation; it has nothing to do with subsection (1).

At the trial for rape, counsel for the original partner wishes to put to the complainant that she made the complaint because of a row that she had over her going away with the other man. He cannot do it. Subsection (3) does not apply; subsection (5) does not apply. Indeed, such a question might be caught by subsection (4), which deals with material which impugns the credibility of the complainant as a witness.

So the very essence of the quarrel between the two, which the defendant says caused her to make the complaint of rape, cannot be investigated. It does not appear before the jury at all. The judge hears about it in the absence of the jury and determines that refusal of leave to cross-examine the girl about running away with another man and being left by him--having a relationship with somebody else, the pinpoint of the quarrel between them--might have the result of rendering unsafe the conclusion of the jury. What is the judge then to do? He cannot allow the case to continue. It is not possible that a case can be put right on appeal if the statutory formula has been followed. Appeals do not come into it.

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So the situation arises where the judge says, "I am sorry, under this legislation I cannot permit you to question this girl about the relationship when she ran away with another man before coming back to the defendant; the essence of the quarrel between them. I cannot allow you to ask that question. But I appreciate that if I cannot do that, there is the possibility of a grave injustice in this case. So this case will go no further; I withdraw it from the jury." That will be the end. It may be that the defendant's defence was true. It may be that it was not true. If it was not true an injustice has been done and a guilty man has got away. But the judge could not permit the matter to proceed.

It is impossible to devise legislation--all this wordy stuff that is so difficult to understand--which can cope with all the possibilities. That is the reason why the Criminal Bar, as a whole, is against these provisions. That is why we perceive the possibility of injustice. I believe that the amendment proposed by the noble and learned Lord, Lord Ackner, which seeks to put the simple word "or" instead of "and" would permit the jury to investigate exactly what went on between those two people and the third person and would result in a proper verdict. It is only by the use of a simple word that a dramatic difference can be made to the possibilities of justice in this case. I support the amendment.

Lord Cope of Berkeley: My Lords, this amendment, like the last one, is not a party matter; it is a matter of conscience. It is something about which each of us must decide and I speak only for myself.

It is a difficult matter to get right, as this short debate and earlier discussion on the Bill have shown. A most ingenious and simple amendment has been moved by the noble and learned Lord, Lord Ackner. I congratulate him on the ingenuity of his drafting, if it is not lese-majeste to say so to a distinguished lawyer.

The original proposals in the Bill have been improved as a result of amendments made. But the principle remains; that is, that the sexual history of the complainant should only be brought out in court to a very limited extent, as set out by the noble and learned Lord in moving the amendment. At the same time, the restrictive effects of the Bill are not as powerful as some would wish; hence the amendments tabled by the noble Lord, Lord Desai.

In relation to the amendments of the noble Lord, Lord Desai, it seems to me that the defendant's belief or otherwise in the consent of the complainant at the time of the alleged offence, will often be highly crucial. The sexual history of the complainant will be very relevant to a decision by the jury on whether or not he, assuming it is a he, believed in her consent. In that way the sexual history can be extremely relevant to the court case. I am not therefore inclined to support the amendment of the noble Lord to limit to an even greater degree the way in which it can be brought out in support of arguments about belief in consent.

But it is a difficult judgment to veer between the proposed amendment of the noble and learned Lord, and the noble Lord, Lord Desai. For myself, I am prepared to support the Government on this amendment. It comes

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back to discussion on the previous amendment; that is to say, to the agonised decision and discussions which take place when a complainant is deciding whether or not she is prepared to support her charges. Everything I said on the previous amendment is relevant here.

I want more rape cases to be decided in court by juries, and not decided by default of the woman not being prepared to pursue the case. I am satisfied that at present women are understandably deterred from so doing. As I said on the previous amendment, I do not believe that this clause--even taken with the other protective provisions in the Bill for screens and so on--will absolutely remedy this difficulty; of course it will not. However, I believe it moves in the right direction. Therefore, on balance I continue to support the Bill as it has been put forward to us by the Government in its amended form. However, as I say, I speak only for myself.

8 p.m.

Lord Williams of Mostyn: My Lords, in this group, apart from the amendments which stand in the names of the noble and learned Lord, Lord Ackner, and my noble friend Lord Desai, is Amendment No. 21 which stands in my name. I shall deal with that first. The amendment to Clause 42 brings the rule-making power under that clause into line with those under Clauses 20 and 36. The amendment would allow for rules to be made to govern confidential or sensitive information being withheld from parties to the proceedings.

I now turn to the more fundamental questions. I shall have to speak at a little length, for which I apologise in advance. The amendment of the noble and learned Lord, Lord Ackner, seems to be inspired by the idea that there are relevant pieces of sexual behaviour evidence that Clause 40 as currently drafted excludes, but which ought to be admitted. I do not agree with that proposition. My belief is that Clause 40 allows enough scope for all relevant evidence about a complainant's sexual behaviour to be introduced. Clause 40 provides a statutory framework for determining relevance. The questions that we consider to be appropriate are the following. First, is the evidence relevant; that is, does it fall under subsection (3) or subsection (5)? If it does, is it significant enough that refusing to admit it might render the jury's or the court's conclusion on a relevant issue in the case unsafe? That is the answer that I sought to give to the noble Viscount, Lord Bledisloe, on the previous occasion we discussed this matter. We see this significance test as a modified version of the test in Section 2 of the 1976 Act, to which the noble and learned Lord, Lord Ackner, referred earlier.

There is a difference of approach between that of the noble and learned Lord, Lord Ackner, and mine. The noble and learned Lord, Lord Ackner, considers that previous sexual behaviour can be so strong that it is relevant to the complainant's credibility or consent, despite it being outside the ambit of subsections (3) or (5). That is our point of disagreement. I have to make it plain that as a matter of government policy we have concluded that evidence of a complainant's past attitude to or experience of sexual relations is not material upon which a jury should reasonably rely to conclude that the

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complainant might indeed have consented on the occasion that is the subject of the complaint. Consensual sex does not mean consent to sex in general--it does not even mean consent to sex with a particular person--it means consent to sex with a particular individual on a particular occasion.

I do not think it would be appropriate, as my noble friend Lord Desai suggests, to require judges to warn juries that consent on one occasion does not imply consent on another. I sympathise with the sentiments behind his amendments as outlined in his speech. However, the complainant is not on trial. I do not think there ought to be a statutory requirement in this regard although, of course, judges may sometimes find it appropriate to make exactly the point that my noble friend Lord Desai suggests.

There are only three exceptions to the ban on sexual behaviour evidence in relation to consent. The first exception is where the evidence is needed to rebut specific claims made by the prosecution on behalf of the complainant. The second exception is evidence of the complainant's sexual behaviour at or about the same time as the alleged offence. The amendment that I laid at Report stage is not intended to widen the time limit substantially beyond the 24 hours limit originally suggested. The provision is intended only to catch behaviour that is practically contemporary with the alleged offence. For example, sexual behaviour running up to an alleged rape, where the complainant said she had decided not to consent to full sex at the last minute.

Anything that happened more than 24 hours before or after the alleged offence should only rarely be considered to take place,

    "at or about the same time"
as the alleged offence. However, the new formulation in subsection (3)(b)(i) gives more flexibility if something happened a few minutes--or at the very most, a few hours--outside that 24 hour limit. The reverse is also true. If something occurred just within 24 hours of the offence, but the court did not really consider it as having taken place,

    "at or about the same time"
as the alleged offence, it could exclude it.

It is not intended to catch evidence of behaviour three or four or five days before the alleged offence. I think particularly of the description in Committee by the noble and learned Lord the Lord Chief Justice of a situation where a complainant had sex with four different men a few days before the alleged offence. If the issue is actual consent itself to the alleged offence I believe it is right that such behaviour should not be admissible.

My noble friend Lord Desai raised questions as to the distinction between consent and belief in consent. That was raised on a more general basis. The Law Commission's views are being examined--as I said on an earlier occasion--under the umbrella of the sexual offences review currently being carried out in the Home Office. The noble Lord, Lord Goodhart, is right in saying that one is dealing with the substance of description of the offence. I agree that this is not the occasion to try to tinker with that.

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I am content to leave it to the courts to decide whether there would be grounds--specific to a particular case and the knowledge the defendant had of the complainant's habits--for finding this relevant to a defence of belief in consent. There is an important distinction which is often elided between the two issues. The fact that a complainant has consented previously does not mean that she will consent again. A woman exercises--and is entitled to exercise--her consent independently on each occasion. The defendant's accumulated knowledge and experience of the complainant may affect his belief in consent at the time of the alleged offence, even though, if he reflects on it later, he may recognise and concede that that belief was mistaken.

I turn to strikingly similar and non-coincidental behaviour. The only other circumstance where earlier sexual behaviour should be admissible in relation to consent is provided for in subsection (3)(b)(ii). That is, where the behaviour was so similar in detail to the defence's version of the event when the offence was alleged to have taken place that there is no way that the similarity between the two occasions can be reasonably explained as a coincidence. That might include something along the lines of the Romeo and Juliet scenario introduced by my noble friend Lady Mallalieu, where the circumstances in which the alleged offence took place were so unusual that the jury should know that the complainant had consented in strikingly similar situations in the past.

The term "strikingly similar" does not include evidence of a general approach towards consensual sex such as a predilection for one night stands, or for having consensual sex on a first date. Still less does it include the fact that the complainant has previously consented to sex with people of the same race as the defendant, or has previously had sex in a car, for example, before alleging that she was raped in a car. Such behaviour could reasonably be explained as coincidental, as it falls within the usual range of behaviour that people display. Behaviour that can be admitted under subsection (3)(b)(ii) must be the sort of behaviour that is so unusual that it would be wholly unreasonable to explain it as coincidental.

For example, supposing a complainant alleged gang rape, and a co-accused in the case claimed consent. If the defence could produce specific, factual evidence that the complainant had previously engaged in consensual group sex under similar circumstances, this might be relevant to the jury's determination of whether she consented to the events that she is now claiming she did not consent to. The complainant's previous involvement in sexual activity of this nature should only be introduced where it is so unusual that it might affect the jury's view of the complainant's behaviour at the time of the events in question.

We have considered other models, as I mentioned briefly on our earlier visits to this territory. We have considered the legislation in Scotland, Canada and New South Wales. The wording of the Scottish legislation places little emphasis on relevance or probative value. Research done for the Scottish Office in 1992 concluded that the "interests of justice" gateway in that

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legislation--which allowed evidence to be introduced without a specific statutory constraint on how it could be considered relevant or its probative value--meant that sexual behaviour evidence was admitted much more often than had been intended. Some practitioners who were questioned said that the inclusion of the gateway made the legislation "a waste of time".

The New South Wales legislation provides a list of circumstances where sexual behaviour evidence can be admitted. We did not consider that an exclusive list of circumstances was appropriate. In Clause 40 we have introduced a framework setting out how sexual behaviour evidence could be considered relevant to an issue in the case.

We briefly discussed Canada on the previous occasion. The noble Lord, Lord Lester of Herne Hill, brought to your Lordships' attention the challenge in the case of Seaboyer. Following that challenge, Canada established a complete ban on the use of the complainant's sexual behaviour to suggest that she would have been "more likely to have consented to the sexual activity that forms the subject matter of the charge" or that she "is less worthy of belief" In other words, a ban on sexual behaviour evidence being used in relation to consent or credibility.

All other sexual behaviour evidence is covered by a relevance test: that it relates to an issue in the trial; it must also be of a specific instance of sexual activity; and it must have significant enough probative value that that value is not substantially outweighed by the danger of prejudicing the jury or the court if it is introduced.

Perhaps I may turn to the amendment of the noble Lord, Lord Desai, and its general approach. We decided not to require the court to weigh probative value against the risk of prejudice and to use the test in subsection (2)(b) of Clause 40--that a refusal of leave to introduce the evidence might have the result of rendering unsafe a conclusion of the jury or the court on any relevant issue in the case. We chose deliberately to do that because, having redrawn the law on relevance in Clause 40, it seemed preferable to us to require the courts to consider only the significance of relevant evidence, and to admit it even if there was a risk that it would prejudice the court against the complainant.

Another aspect of our legislation reflecting the Canadian experience is that both cover evidence of sexual behaviour between the complainant and any other person, including the defendant. We believe it is appropriate to put all sexual behaviour on the same footing, whoever it is with. Behaviour with the defendant may sometimes be irrelevant; behaviour with someone other than the defendant may sometimes be relevant.

We believe that the only way to achieve a more consistent application of the law across the board is to create a statutory framework of relevance. I believe that that is what we have done in Clause 40. Under subsections (3) or (5) the relevance test must be passed and then Clause 40(2)(b) introduces the question of the refusal of leave in the way that I discussed earlier.

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A number of examples were mentioned. The noble and learned Lord, Lord Ackner, raised the question of a man who enters into an arrangement with a prostitute, has sex with her, refuses to pay and she cries rape. There is nothing in the Bill to stop the defendant making that clear in his defence.

I believe that if one analyses Clause 40--this is the phrase I used in answer to the noble Viscount, Lord Bledisloe, on the last occasion--one sees that it sets a statutory framework. That statutory framework deals with relevance. We believe that in the past the law has not been sufficiently balanced between respective interests. We believe--I am sorry to say this to my noble friend Lady Mallalieu--that we have got it right in Clause 40. That is why I invite your Lordships not to agree to the amendments put forward by the noble and learned Lord, Lord Ackner, which seek to alter "and" to "or", and, for distinct reasons which I hope I have ventilated sufficiently, I also invite your Lordships not to agree to the different approach put forward by the amendment of my noble friend Lord Desai.

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