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Baroness Noakes: I was aware of the review which took place after the Morgan case, the outcome of that review and the fact that it resulted in the Sexual Offences (Amendment) Act 1976. However, despite that Act, of which we have now had 25 years' experience, we still have a problem with conviction rates. Therefore, I believe it is legitimate to consider again whether the formulation of the law meets the objectives we require.

Lord Thomas of Gresford: I have already said that we on these Benches do not find the current framework acceptable, and are seeking to find a way to improve the contents of the Bill. Perhaps I may put matters in context. The latest statistics show that of the rapes which result in conviction, stranger rape—that is what many people consider rape to be: an attack in the dark—accounts for only 8 per cent; acquaintance rape, sometimes called by different terms—that can be serious because it can involve a breach of trust or all sorts of problems—accounts for 45 per cent, and marital rape accounts for 45 per cent.

So, stranger rape is not the problem. In cases of that kind, such are the scientific improvements in detecting DNA and tracing it to a particular defendant that conviction rates run as high as 70 to 80 per cent. Accordingly, that is not the difficulty. Consent does not arise in stranger rape. The issue is generally identity: "Can you prove that it is that person who carried out the attack at night", or whatever the circumstances may be, "on the individual complainant?" The problem arises with consent in acquaintance rape and marital rape, which are very difficult to determine in the absence of other evidence. Bruises are generally not enough. A history may perhaps help. Those who want to banish all history from the evidence in a court before a jury are, in my view, mistaken. Such problems need to be resolved in a sensible way.

Perhaps the seeds of the Government's position were found in the seminal work of Helena Kennedy, Eve was framed, published in 1992. Unhappily, the noble Baroness is not in this country, let alone in her place. I am sure it will be strange for her to find that the Government follow her views. Generally, she is in opposition to the criminal justice views of this Government. She put the matter simply. I cannot put it better. She said:

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    defence to murder, provocation must be words or deeds which would make a 'reasonable man' lose control. The issue therefore arises as to whether there should be a similar rule for sexual offences, with an objective rather than a subjective test. The jury would then be asked whether a reasonable person would have known that the woman was not consenting. The criterion should be absence of consent, not presence of dissent. Making such a change should not be leapt upon in the mistaken belief that it would remedy all the problems, but if a judge had to emphasise to a jury that the man's belief must be reasonable it would undermine the theory that women say 'no', meaning 'yes'".

The noble Baroness put the issue some time ago. My only problem with that passage is that she refers to "the reasonable person" and the "reasonable man" in one breath and to the reasonable belief of the particular defendant in another. I see an important distinction between those two positions.

The real problem with subsection (3) is that it brings into this difficult area of law the concept of the hypothetical "reasonable person". Amendments Nos. 4 and 5 ask us to consider who is the "reasonable person"? In some areas of the law the "reasonable person" is a mature man of 40, who is well educated and so on and likely to make the correct decision. But a "reasonable person" so far as a 16-year old boy or an 18-year old man is concerned, may well be someone of his own age, from his own background, who shares the same prejudices, beliefs and signals.

The problem with introducing this hypothetical "reasonable man" is how to determine who he is. What standard is a jury to apply? That is rather different from looking at the defendant in the dock and saying, "When that person tells us he had an honest belief that the girl consented, was that a reasonable belief?" I entirely agree with the noble and learned Lord, Lord Lloyd of Berwick, when he said that he had never experienced a defendant succeeding before a jury with the defence, "I had an honest belief. It was unreasonable. I recognise it now. But at the time, it was an honest belief". In practice, and in my experience, juries would reject such an argument.

In subsection (3), the Government have chosen the concept of the "reasonable person". We, on these Benches, object to that. "Reasonable belief" is a matter that I shall address in our later amendments. But the subsection as it stands—again I agree with the noble and learned Lord, Lord Lloyd—is unworkable. I believe that it will not increase the conviction rate, but that in the minds of a confused jury it will lead to fewer convictions.

Earl Russell: I apologise that I must leave at five o'clock in order to address a group of sixth-formers. I had not expected the first two amendments to take two hours. I promise to read carefully what is said in my absence, to return to the proceedings as soon as possible and not to repeat myself when I do.

Clause 1(3) sets an almost insurmountable hurdle. For example, a husband wakes his wife in the middle of the night with John Donne's line:

    "Dear love for nothing less than thee

Would I have broke this happy dream",

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and she says to him, "All right, I suppose so". That—in my mind at least—creates a reasonable doubt as to whether she consented. The man who proceeds in that circumstance should examine his conscience. I do not think he should be found guilty of rape.

To what does the second half of the clause apply? The subsection applies if,

    "A does not act in a way that a reasonable person would consider sufficient in all the circumstances to resolve such doubt".

There is no action that A can take to resolve that doubt. The only thing that might resolve it is B's body language. Body language, especially of this kind, is not repeatable in court. So, we have a test which simply cannot be satisfied: it is an unreasonable test.

I also support Amendment No. 6. It would disapply Section 78, which, even as clarified by Amendment No. 398—and it is clarified rather than altered—is entirely unacceptable drafting. Clause 78(1)(b) states that,

    "the defendant is to be taken not to have believed that the complainant consented unless the defendant proves that he did believe it".

How does one prove that one believes something? One may confess one's faith. One may do so in total sincerity, but by what objective test is anyone in the world ever going to know that one is totally sincere? So far as I can understand, such knowledge, if it existed at all, would be divine and not human. The test is completely insurmountable and it is unreasonable to ask anyone to try to conduct it.

I am a little anxious about the treatment of sleep. Again I accept the general thinking behind the Bill; that having intercourse with someone who is asleep should in normal circumstances be regarded as an offence because consent cannot be given. However, there is one particular circumstance which to my knowledge has arisen in court and has become an issue, where the couple had had consensual intercourse and fallen asleep in bed side by side.

In the middle of the night the woman reached out and made a gesture of affection, which the man interpreted as a gesture of consent. But it was not. She woke in the night, too drunk to remember how she got there, and screamed rape; as one might if one woke in the middle of the night and found a strange man beside one. But, until the lady indicated that she did not consent, there was a rebuttable presumption that she did. If a man makes love to a woman and goes to bed with her and falls asleep with her, he is entitled to presume that she consents until she tells him otherwise, and no longer. So the treatment of sleep in cases where there has been consensual intercourse immediately beforehand cannot be the same as the treatment of sleep in other circumstances.

I have a good many more criticisms of Clause 78, but under the circumstances I hope the Committee will forgive me if I do not make them now.

Lady Saltoun of Abernethy: The moving of the burden of proof from the prosecution to the defendant, which is what Clauses 1 and 78 do, is in my

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opinion totally indefensible. It is especially so in a situation where in the nature of the crime there are unlikely to be any witnesses for either side.

There are in this world some women who lead men on and then, at the last minute, say no. There is a rude, colloquial name for them, which I should not dream of using in your Lordships' House, but your Lordships all know what it is. Afterwards, they may cry rape. How is the defendant to defend himself, if he has to prove that he believed his intentions to be acceptable when the girl denies it? Who is the reasonable person in that instance?

I can sympathise with those who are concerned about low conviction rates, but do they want to increase them by convicting innocent people? I entirely support the views of the noble Earl, Lord Russell, about rape when the so-called victim was asleep.

5 p.m.

Lord Ackner: There has been frequent reference to the low incidence of conviction. Perhaps I may offer some suggestions as to the causes. They are many and complex. Some of them are easier to understand than others.

My first example is the simplest in the world. Your Lordships may have heard the phrase, "If you pay peanuts, you expect monkeys". That is exactly what the prosecution did. The prosecution paid the Bar to prosecute considerably less than legal aid paid to defend. When it became apparent that as a result the experienced Bar refused Crown Prosecution Service briefs and only the young, inexperienced person came to be faced by an experienced opponent, the CPS realised that that had to be dealt with.

That was dealt with by the Treasury in the usual way—there are no prizes for the answer. The graduated fee carefully negotiated with the Lord Chancellor's Department for the defence was reduced by 10 per cent, so that that 10 per cent could be added to the fees paid by the Crown Prosecution Service. Thus, that reason for the high incidence of acquittals was dealt with.

The second reason is that no filter system is now operated by the Crown Prosecution Service. In practice, before corroboration was abolished, one needed to be able to show a good, arguable case. That is no longer the case. If the allegation is made, it is politically incorrect not to allow it to go to trial. So weak cases have been allowed to come to trial and, as a result, many of them have failed.

The third reason is that some complainants wrongly believed that, in order to establish rape, they must have struggled violently. So, in order to gild the lily, they told the jury that they had struggled violently. In due course, the defence produced underwear that showed that not a stitch had been disturbed and established that the complainant had been gilding the lily. As a result, understandably, they did not believe her.

The next and fourth reason—we all know all about this and nowadays frequently read about it in the newspapers—is that false allegations are made from time to time. There are a variety of reasons for that.

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The woman may have been rejected. It may be jealousy. She may have some psychological hang-up. Ultimately, she confesses to that and the case collapses. Your Lordships may remember that in A Passage to India the heroine had the false feeling that she had been raped by the Indian, but eventually had to admit that it was all an illusion.

The fifth reason is that there has been a radical change in social mores. In the university to which I went—and, no doubt, at other universities at the time—sex was referred to cheerfully as the best indoor sport. Now, it is so often a casual pastime. Some of your Lordships may have come across the programme called "Three-minute Dating", which is a new method of ensuring that people meet quickly to go about whatever activities they want. Sleeping around is especially the result of drinking too much or taking drugs. In that situation, the jury does not believe that the traffic lights changed from green to red without an intermediate amber.

Sixthly, a small number of cases involve husbands and wives or cohabitees. In such cases, the jury know, because it is so often stressed, how very serious is a rape case in regard to the sentence that may be imposed—five or six years as a starting point. In some such cases—maybe very few—the jury think such a result entirely disproportionate to what happened.

Then, seventhly, there is the law of unintended consequences. Nowadays, a vulnerable complainant can give her evidence on video. She is never seen by the jury, yet the jury must weigh up her unseen evidence against the evidence of the accused. How can they in such a situation be sure that the defendant is guilty?

Finally, and most important of all, there is the burden of proof. I do not believe that the phrase "reasonable doubt" is any longer frequently used. The jury are told, following a decision made by Lord Chief Justice Goddard, that they must be "sure". Having to be sure is a very high burden. The jury can say among themselves, "This probably happened, but we have been told that that is not enough" or "It is very likely that the complainant is telling the truth, but that is not enough; we must be sure of the case".

Those are some examples of explanations for the low incidence. I agree with my noble and learned friend Lord Lloyd, and do not believe that there are cases where a man asserts a totally unreasonable—perhaps honest—belief that is accepted by a jury. That is particularly so now that the jury must be told in terms that they must take into account the whole of the circumstances and whether it appears to them to be reasonable for such conduct to have taken place. I hope that I have assisted to some extent on a subject that seems to be shrouded in mystery.

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