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Lord Falconer of Thoroton: I apologise for speaking at this point. The noble Lord, Lord Campbell of Alloway, makes a number of very important points about the reasonableness element in relation to consent and the rebuttal of presumption in Clause 78. Those issues need to be addressed in detail. They will be addressed in detail in the debate on the amendments tabled by the noble Baroness, Lady Noakes, in the next group of amendments. They will be considered again in the following group of amendments, headed by Amendment No. 7, and again in the following group, headed by Amendment No. 13. Speaking for myself, I intend to save my detailed response to the important points made by the noble Lord until we reach that point. It will be much easier for the Committee to understand the detail of the argument at that point. I hope that the noble Lord will not think that I am behaving disrespectfully when I say that I believe it would be better if we waited until those later groups.
Lord Campbell of Alloway: I am grateful to the noble and learned Lord. We have to deal sensibly with this complex affair and his suggestion is entirely appropriate. I am taking the same line as that in my noble friend's amendments—which I am opposing. If we are going to deal sensibly with this, it would be
quite inappropriate to take the opinion of the Committee tonight, as we would not have gone through the process in the objective way to which the noble and learned Lord referred. Is he content?
Lord Falconer of Thoroton: Yes, my Lords.
Lord Ackner: The last thing that I want to do is incur the displeasure of the Committee by being premature or jumping the gun. However, my objection to Clause 1(3) is that this clause is beyond redemption; and that goes from 1(3) right the way through. In a nutshell, I believe that the present law is perfectly sound and sustainable and that what is proposed will confuse a jury and undermine what is known as the "golden thread"—namely, that you must prove a guilty mind in an accused before you can convict. I do not want to run the risk of being told that I should reserve this for a later stage, if that is what the Committee would wish, but I do not want it to be thought that by remaining silent I concur with what is proposed in relation to Clause 1(3).
Lord Falconer of Thoroton: Again, it is a matter for the Committee. I should think that this is the most reasonable way of dealing with it. When we come to reasonableness, with which we shall deal in detail, the noble and learned Lord can unleash his volleys in relation to Clause 1(3). I think that that would be most appropriate because the amendment moved by the noble Lord, Lord Campbell of Alloway, has put rebuttal of presumption and reasonableness together in one amendment. That is quite a tasty feast all at one go and we should separate the two. It is purely a matter of preference. I certainly would not regard the noble and learned Lord, Lord Ackner, as in any way debarred from making his points then.
Lord Ackner: When do we come to reasonableness—under what guise?
Lord Falconer of Thoroton: We will come to it in the next group, headed by Amendment No. 4, and again in the group beginning with Amendment No. 13, which contains the amendments tabled by the noble and learned Lord, Lord Lloyd of Berwick.
Lord Ackner: Is it all under Clause 1?
Lord Falconer of Thoroton: Yes.
4.15 p.m.
Lord Lloyd of Berwick: I wonder whether I might say a few words now as my name is included in two of the amendments proposed by the noble Lord, Lord Campbell of Alloway. I am dealing solely with Amendments Nos. 2 and 3 and entirely follow the lead given by the noble Lord.
At Second Reading, I opposed the inclusion of Clause 1(3) for three reasons. First, it seemed to me wrong in principle. It is contrary to a basic rule of the criminal law that a person can only be found guilty of a serious offence such as murder, theft, fraud or rape
if he has a guilty mind. The second objection was that Clause 1(3) would be unworkable in practice when applied in combination with Clause 78. The third reason was that the Government have simply not made out a case for such a fundamental change in the criminal law.It is said that the conviction rate is low and that it could be increased if we were to include a test of negligence in the definition of the crime of rape. It is that, of course, which Clause 1 provides. I am, for myself, in no way persuaded of that. The only result, so far as I can anticipate the result, will be to increase the number of appeals, not increase the number of convictions. For the jury would presumably have to be asked after the defendant had been convicted on which of the two grounds they had convicted him, whether under Clause 1(2) or Clause 1(3). That is always a source of trouble, as anyone who has had experience of dealing with juries will know.
Indeed, as I see it, the trouble with the Bill as a whole, especially in relation to Clauses 1 to 6 and Clause 78, is that its provisions have been formulated predominantly though not exclusively by civil servants, as a result of research carried out predominantly if not exclusively by civil servants. For obvious reasons, they can have had no experience of how to direct juries or how juries in fact think and work in practice. I am afraid to say that that shows through in the way in which the Bill has been crafted. Only two judges are mentioned by name as having been consulted—one from Australia and the other from Scandinavia. I must assume that the Lord Chief Justice has been consulted. I would assume also that the Judicial Studies Board had been consulted. However, they are not mentioned.
One suspects that it was only when the Minister himself got to grip with the Bill that it was first realised that Section 78 as drafted is simply unworkable. Happily, that has been recognised in part since subsection (1)(a) and subsection (2) are now omitted. However, surely one is entitled to comment that that ought to have been realised a great deal earlier. Still, it seems to me that Clause 78 is a nightmare. But I leave that part of the argument to others who will be addressing it more directly on later amendments.
I propose to leave over for now the question of principle involved in this amendment as it is a principle that may seem of more importance to lawyers than to others. It was, I think, the point on which all the lawyers who spoke at Second Reading were unanimous. Instead, I shall start this time with whether the Government have made out a case for any change.
Much of the evidence in volume 2 which is relied on to support a new offence of rape by negligence—that is what Clause 1(3) is; let there be no mistake about that—ignores entirely the practical effect of the 1976 amendment Act. The presence or absence of reasonable grounds for the defendant's belief is always a factor that the jury must take into account. That is what the 1976 Act says.
The argument repeated so often that it is absurd for a defendant to get off on the grounds of honest belief, however unreasonable, altogether ignores the role of the jury. The simple answer is that the defendant does not get off in such a case. I do not have as much experience of rape cases as other judges, but I have some, and I have never heard of a case in which the defendant has got off on the grounds of honest belief where that belief was unreasonable. Juries are no fools. They can tell when the defendant is lying in order to put up a bogus defence. The more unreasonable the defence, the more likely it is that they will convict. If ever there were a crime where the question of guilt should be left to the good sense of juries, with the minimum of statutory interference by Parliament, it is the crime of rape.
Then the Government rely on the low percentage of convictions, and say that that must be due to some deficiency in the law. However, there is literally no evidence to that effect. For example, we all know that the abolition of the doctrine of corroboration, which was supposed to increase the percentage of convictions, had no such effect at all. I suspect that the same will be true if we enact Clause 1(3). Some reliance is placed on the 27 per cent conviction rate in the state of Victoria, compared with our current figure of 7 per cent. In Victoria, the weaker cases are all weeded out in the course of earlier committal proceedings, so they never get to the door of the court. The comparison with Victoria is therefore completely meaningless.
In the final document produced by the Government, Protecting the Public, only one argument is put forward for the new offence of rape by negligence. It contains the following sentence:
- "We believe the difficulty in proving that some defendants did not truly have an 'honest' belief in consent contributes in some part to the low rate of convictions for rape".
I return to the question of principle. Some years ago, the House decided that the intention necessary for the crime of murder could be presumed if a reasonable man would have foreseen the consequences of the defendant's act, even though the defendant did not foresee those consequences himself. That decision was so obviously wrong that it did not last long. As the defendant did not have a guilty mind, he could not be guilty of murder. The same is true of every serious crime. Indeed, it is true of every crime, except those of strict liability such as speeding. No one has ever suggested that rape should be a crime of strict liability, and I hope that they never will.
I mention those points only as the Committee should be aware of what is proposed. It has always been the law that a person can be guilty of rape if he knows that the woman is not consenting or he is reckless. However, there is a crucial distinction between recklessness and mere want of care. Recklessness is a guilty state of mind, because the defendant is indifferent to whether the woman is
consenting or not. He could not, as is sometimes said, care less. However, carelessness is not a guilty state of mind. That is what the case of Morgan decided.Now the Government will change all that, and they will do so contrary to the views expressed by the Heilbron committee—it was set up specifically to consider the case of Morgan–by Parliament in 1976, by the Criminal Law Revision Committee in 1984 and, most importantly of all, by the Law Commission as recently as 2000. They will do so contrary even to the views expressed in their own review. The change is not supported there. The external group was in favour of a change, but the steering group was not. The review sat on the fence.
It might help the Committee if I read out two or three sentences from the review. Paragraph 2.7.5 states:
- "We also considered the issue of honest belief in consent with very great care".
- "However, we were not all agreed on the extent to which the law should be changed in this area. Accordingly we set out the issues in detail below".
- "In balancing these arguments, there was a disagreement between the External Reference Group who unanimously wanted the law restoring to its pre-Morgan state of requiring any honest belief in consent to be subject to a test of reasonableness, and the Steering Group. The Steering Group did not take the ERG's advice on this issue but identified an effective way of fettering an inappropriate use of honest belief, without re-introducing the external test of reasonableness that the courts had rejected".
- "Accordingly we recommend that the defence of honest belief should be expressed in terms of free agreement, and be subject to limitations as to its use. This does not impose an external and objective requirement of reasonableness on the defendant, as our External Reference Group wanted, but it does reinterpret the doctrine of honest belief as set out by the House of Lords in the Morgan judgement, and provides new conditions",
We have five various reviews, none of which support the proposed change. Some confusion seems to run throughout so much of the reasoning, both in the evidence and the Home Office review itself. The review accepts correctly that knowledge or recklessness is the appropriate test for a conviction of rape, but somehow at the same time criticises the so-called defence of honest belief. What is that defence? It is nothing other than the obverse of recklessness. If the defendant has an honest but mistaken belief, he cannot be guilty of recklessness, and the Crown will have failed to prove what the review accepts is an essential element in the offence.
In conclusion, I repeat that the Government have not made a case for change. If they have, I do not know what it is. The change they propose is based, I suspect, simply on expediency. It is unsupported by any of the distinguished bodies that I have mentioned and is contrary to sound principle.
4.30 pm.
The Lord Bishop of Guildford: Perhaps I may be allowed to comment from a different perspective.
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