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Lord Lloyd of Berwick: I am grateful to the noble and learned Lord for giving way. Anal intercourse had to be brought within the definition of rape for reasons of discrimination. Those reasons had nothing whatever to do with oral penetration.
Lord Falconer of Thoroton: I say with the greatest of respect to the noble and learned Lord that I believe he is missing the point. The point is whether the judicial system is able to describe oral penetration as rape. In my view it is, just as it was, for whatever reason, in relation to anal intercourse.
The next reason given for not including the provision we are discussing is that it diminishes the importance of vaginal or anal intercourse on the ground that oral penetration is not as serious. It is for the House to judge the evidence put before it, particularly by the noble Baroness, Lady Howarth, as to how seriously victims regard oral penetration. I say with the greatest of respect that, as the noble Lord, Lord Campbell of Alloway, said, it is an issue to be decided not necessarily on a lawyer's view of the most appropriate way to deal with it, but on the basis of granting justice to the victims of that particular crime.
We have thought long and hard about the matter. As the noble Baroness, Lady Noakes, said, it is a difficult issue. We believe that the right course is to treat oral penetration as one form of rape as that indicates its seriousness, does not lead to problems in relation to the way in which proceedings are dealt with in court and reflects the concerns of victims. An alternative is advanced; namely, in effect to create a new offence of oral penetration. We believe that that over complicates the situation, separates out oral penetration from rape, which is traditionally the most serious sexual offence, and that it is unnecessary. We have listened carefully to the debate both inside and outside the House. Indeed, I was privileged to have a conversation with the noble Baroness, Lady Mallalieu. As I say, this is a very difficult issue but we believe that we are taking the right course in this regard. Therefore, I invite the noble Lord to withdraw the amendment.
Lord Campbell of Alloway: I wish to make a very short speech. I am grateful to all Members of the Committee who have spoken. I totally agree with the noble and learned Lord, Lord Falconer of Thoroton, that this is in effect a lay matter for the judgment of this House as to what constitutes due administration of justice. It is not a legal matter. I agree with the noble and learned Lord that as this is a matter for the House to decide, it would be quite wrong for it to have to
The noble Lord said: I am afraid that this amendment is far more complicated. Amendment No. 2 seeks to leave out the words "or (3)". It is a paving amendment to Amendment No. 3 which seeks to leave out subsection (3) of Clause 1. In the context of that amendment, I beg leave to speak to Amendments Nos. 4 and 5 in the name of my noble friend Lady Noakes as they are sandwiched between my Amendments Nos. 3 and 6. However, I speak to them briefly at this stage.
Those amendments of my noble friend oblige an accused to match his own characteristics with those of an abstract reasonable person in substitution for proof of his actual intent. That defeats the presumption of innocence and fails wholly to mitigate the manifest injustice of subsection (3) of Clause 1, unamended, which removes the defence of honest but mistaken belief as to consent.
Amendment No. 2a paving amendmentalso serves as a paving amendment to Amendment No. 6, which seeks to leave out subsection (4) of Clause 1. Subsection (4) of Clause 1 applies Clause 78. Notice has been given of the intention of certain Members of the Committee to oppose the Question that Clause 78 stand part of the Bill. In that context, I beg leave to speak briefly to Amendment No. 7 in the name of the noble and learned Lord, Lord Falconer of Thoroton.
I am advised that I have to explain that Amendment No. 2, which I move as a paving amendment to Amendment No. 3, renders Amendment No. 3to leave out subsection (3) of Clause 1consequential. However, the paving amendment to leave out subsection (4) of Clause 1Amendment No. 6is not consequential and has to be moved separately.
Having got over that, I turn to the merits of the argument. The broad merits of the argument to leave out subsections (3) and (4) of Clause 1 had the general support of your Lordships on Second Reading, save as to leave out subsection (3) of Clause 1, which was not spoken to by this Front Bench. The object of the subsections is, apparently, to meet the concern of the low conviction rateto which the noble Lord, Lord Thomas of Gresford, referredin consent cases and to bolster up convictions.
On the balance of what is due and fair administration, one may well ask whether the real victim is not the person who has an erroneous conviction. Dire consequences may follow, including loss of his job and marriage. When he comes out of prison after seven years, he may find that, by some method such as DNA, he can prove that he was falsely convictedand the Court of Appeal may so decide. Are such men not worthy of consideration? They are the real victims of these consent cases. Let us not overlook the concern and disappointment of the complainants who are unable to convince the jury of their evidence. I have sympathy for them, but one cannot disturb the entire balance of justice to accommodate sympathy.
Where does the true balance of due and fair adjustment lie between the parties in these cases? Members of the Committee may find that the assessment of the noble Baroness, Lady Mallalieu, commends itself. On Second Reading, she said:
I return to the question of erroneous convictions because we must keep a balance here the whole time. Members of the Committee may have read an article in The Times on 18th March about the British Airways pilot who was convicted of rape by a stewardess on a false allegation. He was sentenced to imprisonment, lost his job and so forth. By chance, he found the flight log, which proved that the allegation was false. His appeal succeeded and the conviction was set aside. Can one just ignore such cases? That man had lost everything. I do not know his present circumstances, but imagine the plight of someone who has lost several years from his life.
Amendment No. 3 would leave out subsection (3). The defence of honest mistaken belief is abolished. It was established in 1976 by the Appellate Committee of your Lordships' House. The Crown no longer has the overall burden of proof. The defence is hobbled by conclusive presumptions as to non-consent under Clause 78 (5) to (8). As to establishing consent, the burden on the defence relates to an abstract conceptthe conduct of a reasonable person under Clause 78(2). There is no need any longer to prove actual intent. That was the fundamental objection of the noble Lords, Lord Carlile of Berriew, and Lord Thomas of Gresford, on Second Reading. They made that point far better than I could, and I hope that they return to this pitch again today. The sensitive speech made by my noble friend Lord Astor of Hever on mental disability, IQ, autism and so forth in effect torpedoed the concept of a reasonable person as a substitute for the actual intent of the man accused.
Amendments Nos. 4 and 5 to Clause 1(3) enhance the obscurity of subsection (3), as implemented by subsection (4), and in no way mitigate the unfairness. I shall deal with the main objections to those amendments when they are moved.
The question is whether subsections (3) and (4) should be amended or left out. Those subsections afford manifest injustice and unfairness, enhancing the prospect of erroneous convictions and a spate of appeals against conviction on grounds of misdirection, which surely must lead to redefinition. The criticisms as to Clause 1(4), on Amendment No. 6, have already been dealt with in outline. I am anxious not to go over the traditional time for a speech. I beg to move.
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