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Baroness Mallalieu: As I understand it, we are trying to improve, in particular in Clause 1, the legal definition of rape so that any existing loopholes are closed, and so those who commit the offence can be convicted. I am concerned by what I have heard from several noble Lords about the lawyers' approach as opposed to the Baronesses' or women's approach.
Two powerful contributions were made by my noble friend Lady Gould and the noble Baroness, Lady Howarth.That is the background. But we are producing the tools that people such as me—the lawyers—must try to use in the courts. We need clarity, simplicity, and, when dealing with one of the most serious criminal offences, a powerful and high-level test to be applied before people can be convicted. We need a guilty mind—mens rea. It is a cardinal principle of serious crime that the mind must go with the act. Yet this clause would remove that and, as the noble and learned Lord, Lord Lloyd, said, make negligent rape an offence, which it is not now. Therefore, we are proposing to take out a crucial safeguard for people accused of serious crime, greatly complicating the task of lawyers and judges in directing the jury, and, ultimately, that of the jury itself.
Time and again, after Bills have passed through this House and another place, I go to the Old Bailey and people ask me, "How on earth did you allow that to get through? How have you allowed them to muck things up again?" One of the areas that have been mucked up is the concept of the reasonable man, which has caused enormous difficulties in law, particularly in relation to provocation, and is not resolved.
Yet, while trying to simplify things, we are introducing in Clause 1 a double complication: not only will the jury have to be directed that they must try to decide what a reasonable person would think about the complainant's consent or lack of it, but, if they find that there would be doubt in the mind of a reasonable person, whoever he may be, they must decide what a reasonable person would consider sufficient to remove the doubt. The ramifications—the hurdles and tests that the jury would have to apply—are complicated. The reasonable man is being introduced apparently to try to simplify the position. He comes with his partner in confusion, the shifting burden, which will arise later. The judge's task would be greatly complicated by what is presented.
Why is it being done? I must say, particularly in response to the noble Baronesses' earlier contributions, that it is being done for cosmetic reasons. It will not increase the conviction rate one jot. Like other noble Lords who practise at the Bar, I have never come across a rape case won on the basis of a mistaken but honest belief that there was consent. It happened in the case of Morgan; clearly it can happen, and the direction is given, but I have never heard anyone describe a case on that basis.
So what is the effect of what we are arguing about now and have been arguing about for so many minutes? We will produce something cosmetic for the women's pressure groups. We will produce complications that will lead in some cases to a wrongful conviction. The case will then proceed to the Court of Appeal, and, it is hoped, will be rectified. We will produce a better definition; it will be worse than before. I understand the Minster's difficulties. He is faced with pressure to do something and is looking hard for a way of doing it. The noble Baroness, Lady
Noakes, made much the same point, saying that we should try the approach and see what happens. But every time we try to mess around with the law and disregard the legal views on the matter, I must go down to the Old Bailey and have people say to me, "This is a nonsense; how on earth can we work with these tools?"I ask the Minister to look carefully again at the matter. Once the reasonable man comes in, we enter a whole area of difficulties that so far have not affected the rape definition. If there were a pay-off—the reward of the conviction of people who now wrongly escape conviction—that would be fine. But I cannot see it here. I would also like to hear the answers that the noble Baroness, Lady Noakes, sought about conviction rates. What we are about to do is both potentially dangerous and wrong.
5.15 p.m.
Lord Carlile of Berriew: Like the noble Baroness, Lady Mallalieu, on the issue of principle I agree entirely with the noble and learned Lord, Lord Lloyd of Berwick. I shall not weary the Committee by trying to repeat his cogent explanation of those principles. It is implicit in what the noble and learned Lord said that the statistical problem so recently highlighted by the noble Baroness, Lady Mallalieu, will not be changed by the provisions. However, I disagree—I shall explain why in a moment—with those who say that one cannot envisage cases in which manifest injustice could be perpetrated by what is proposed, particularly the third-party provisions in Clause 78.
I regret to tell noble Lords that I, too, speak as a legal practitioner who has occasionally gone far and wide into the regions of this country. Indeed, I have often had to argue these issues in the legendary Mold Crown Court, where juries consider matters in their own idiosyncratic way. In most rape cases where there is a defence, it is approached from three positions. First, did it happen at all? In many cases it is denied that sexual intercourse took place. Secondly, was it the accused who had sexual intercourse with the complainant? That is not such a problem these days because of the availability of DNA profiling. Thirdly, was there consent? I estimate that 97 or 98 per cent of rape cases are decided on issues of that kind. The statistics cover thousands of cases. The acquittal over a 10-year period of two or three people who do not have mens rea would not affect those statistics one iota. But there remains the potential for injustice. I suggest that it is the responsibility of this House, with its informed membership, to ensure that such injustice does not take place.
I refer to a practical issue, repeating a question that I asked at Second Reading. Probably because I did not make the question clear, the noble and learned Lord, Lord Falconer, did not answer it. I ask him to consider it afresh and to give us an informed answer. Several noble Lords have already raised the complexity of the tests set out in Clauses 1 and 78. At Second Reading, I asked—and the noble and learned Lord, Lord Lloyd of Berwick, repeated the question—whether the Judicial Studies Board had been consulted. Will the Minister tell the Committee whether the Judicial
Studies Board has been consulted? It is an important question. Why? Because the Judicial Studies Board produces specimen directions that are used by every responsible judge in almost every case where the particular crime is charged.The specimen directions are drawn up by two circuit judges. They are practical people with everyday experience of directing juries. Have those judges been asked, through the Judicial Studies Board, to produce specimen directions, so that legislators can consider whether the provisions are workable?
Lord Ackner: I can assist the noble Lord. I got in touch with the Judicial Studies Board on that point. I was told that the Judicial Studies Board was never asked to comment on legislation going through the House. The legislation is served up, and the board is then obliged to make the best that it can of it. It has no say in the policy of the legislation or its intelligibility; it must just make the best of a bad job.
Lord Carlile of Berriew: I am grateful to the noble and learned Lord. I do not suggest that the Judicial Studies Board should be a participant in the production of policy. That is not what I propose. I am suggesting that the Judicial Studies Board, particularly those who draw up specimen directions, should try to produce a template, so that the legislators—ourselves and those in another place—can decide whether the apparently impossibly complex provisions are workable. My belief is that they are not. They will make the already over-complex direction on self-defence look like simplicity itself.
While we are on the subject, I must respectfully correct my noble friend Lord Thomas of Gresford. In the direction on self-defence, there is not merely an objective test; there is an important subjective element. I gave the direction myself last week, sitting as a recorder. It goes something like this: "Members of the jury, if you think that the defendant may have done no more than what, in the heat of the moment, he thought was necessary, that is powerful evidence, you may think, that he acted in lawful self-defence". If that is not included in the direction, the defendant's conviction will be overturned in every case in the Court of Appeal.
My noble friend, in quoting from the book written by the noble Baroness, Lady Kennedy of The Shaws, referred to provocation. The provocation test is no longer an objective test; there is a high level of subjectivity in it. Amendments Nos. 4 and 5 in the next group, I think, reflect that element of subjectivity. There is no serious crime in which the serious element of a guilty mind—what the noble and learned Lord called the "golden thread"—has been abandoned. That would be a dramatic precedent.
My first question is whether anything has been done to address the complexity of what is proposed. I believe that it has not. What the noble and learned Lord, Lord Ackner, said bears that out.
In raising my second point of substance, I must declare an interest as vice-chairman of a small mental health charity. Those who suffer from mental illness,
personality disorders and similar conditions are vulnerable. Care in the community is a wonderful thing for those who find themselves in protected circumstances, but it is also a dangerous thing for many. I shall give the example of a vulnerable, learning disabled adult who could easily find himself in the sort of situation that might lead to a wrongful conviction of rape. The Government must be able to address the issue, if they insist that their proposals must become law. Regrettably, it is the experience of those of us who enter the criminal courts regularly that we should never be surprised at the behaviour of the human being and that truth is stranger than fiction. We observe such things on a monthly—if not weekly—basis.The sort of scenario that I will posit is far from exaggerated. A learning disabled adult may be used by a group of yobs as a sort of plaything, and they put him in a situation in which he—not they—is persuaded that the woman who is undoubtedly raped wants to be raped. He does as they bid him. What is his belief? His belief—in the real world of a very small number of learning disabled people—is that he is doing something that he is allowed to do, something that he has been encouraged to do and something that, in so far as he understands the concept, it is lawful to do and that he is honest in doing. Is a person in that situation to be convicted of rape and made subject to a potential sentence of life imprisonment? If so, it is serious discrimination against people who are learning disabled and could result in injustice to a small number of people. It will affect a tiny number of people, but, even if it happens only once in 10 years, that is once too often.
Another example, also taken from the field of mental illness, is related to the fact that those who suffer from mental illness are often well for a large amount of time and lead an apparently normal life. However, in some conditions, such people may be very occasionally subject to florid explosions of their mental illness. Such florid explosions of mental illness can lead to entirely bizarre beliefs, which may be permanent or temporary. Among those may be the belief that a woman who is in no realistic way consenting to sexual intercourse is, in fact, doing so. Should such a person be convicted of rape, when he has no guilty mind and what has occurred is demonstrably the result of an illness that he had at the time that he committed the act?
In this country, where the golden thread that has been referred to has survived for a long time, we should not allow political correctness to destroy the civilised assumptions that we have made and sustained over hundreds of years. That is what is proposed. When, on this group or a later group, the Minister responds to the debate, he must deal specifically with the way in which the Government will address the problem of mentally ill people who may find themselves—albeit very occasionally—in the position that I described.
I agree with the right reverend Prelate that the essence of any sexual relationship, even if it is what is unattractively called a "one-night stand", is that there should be consent. There should be a contract, as in marriage. However, that does not mean that it is right
to criminalise every situation just because the person on the Clapham omnibus would not regard it as consensual. We tread a dangerous path, if we go down that route.
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