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Baroness Howarth of Breckland: I apologise if I gave that impression. I was simply trying to illustrate that people face a wide range of difficulties and that this situation fits into the same category. I was simply using that positively rather than negatively. I hope that the noble Lord will accept my apology if I did not say the right thing.

My real intention in rising to speak is to say that it would be a great pity if we did not end up with some change in the law. There should be some change which makes it easier for these cases to be properly tried and heard. Women should be sure that their position will be made clear and the defendant will also be heard. I have also counselled men, so I do not spend my time dealing only with women. In these situations, it is often difficult to sort out the issues and therefore it would be most helpful if we could look at the matter in a way that would take us forward. I have not yet looked at the amendment tabled by the noble Lord, Lord Thomas, but I should be sad if we lost the whole argument and all the proposed changes and if nothing happened for these women.

5.45 p.m.

Baroness Carnegy of Lour: The debate has been conducted largely among professionals and it has been most interesting and informative from my point of view. However I want to remind the Government that, in their laudable intent to assist women who are raped and whose assailant is not convicted, they may not be meeting what the public want in the way they want it. In my experience, which is mostly local, there is a world of difference between the reaction of ordinary members of the public to rape trials and rape accusations and the reaction of the groups who exist to stand up and speak for women.

I find that most women are extremely suspicious of what women are saying in rape cases, as are many men. They are naturally suspicious, a situation which I met in early stages on the Bench but mostly by observing my own locality. I do not believe that the Government

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will achieve much with juries unless they can overcome their difficulties. They certainly will not overcome them by extending the offence of rape.

Achieving more convictions is about enabling juries to understand when someone has committed rape. The lawyers who have spoken—and we have among them the greatest in the land—are explaining how they do that. But ultimately it will be enabling the juries to understand. Like the noble Baroness, Lady Mallalieu, I am sorry that a distinction has been made between the lawyers versus the ladies. I am not one of the ladies and I am not one of the lawyers, but I am an observer of the public. I believe that the Government may be barking up the wrong tree in trying to find a way of helping juries in court to understand whether someone has been raped. I suggest that they should look carefully at whether they have got the right answer and whether subsection (3) will help juries. As a non-professional, I cannot understand how it will. I believe that the Government may have got the wrong political answer to an important legal question.

Lord Mackay of Clashfern: It would be extremely useful if the noble Baroness, Lady Howarth of Breckland, could indicate to the Committee the types of technical problems, to which she referred, experienced by those she has counselled. The perception of those technical barriers may help us to decide whether what is being proposed will meet that type of objection.

The Earl of Onslow: As an open and blank mind which has listened with fascination, I have one question to ask. When someone says that he wants to achieve more convictions, does that mean that the courts have so far been wrong in acquitting defendants? If the convictions were right—7 per cent of cases were successful and consequentially 93 per cent were failures—does that mean that the 93 per cent of defendants were unlawfully or wrongly acquitted? To say that we need more convictions per se is not a judicious way of proceeding.

Lord Campbell-Savours: I want to intervene only briefly. I spoke on Second Reading as a non-lawyer, but I have strong views based on a case I followed in detail some years ago. My noble and learned friend Lord Morris of Aberavon asked a question which is particularly pertinent. It was: is it the view of the Government that there will be an increase in the number of convictions arising out of the principles enshrined in the legislation? I understand that that is what has motivated those who are behind the legislation in bringing it forward. The conversations I have had with people in the legal profession lead me to believe that the legislation will not increase the rate of convictions; it will decrease it.

This morning I had an interesting conversation with Jonathan Davies, a barrister who may well be known to some noble Lords. I should like to read an excerpt of an article that he wrote on 14th April last year in the

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Mail on Sunday which I regard as interesting. It raises issues that the Committee should address when dealing with legislation:

    "One spring afternoon two years ago, I cross examined a young woman in a date-rape trial. As I did so it became clear to me that she knew her complaint would not succeed, and she knew I knew it . . . It was a deeply uncomfortable situation, one which barristers across the country have had to become accustomed to in recent years. For a significant number of 'date rape' cases, where a woman is sexually assaulted by a friend or colleague, are being brought into courtrooms despite the fact that they have no hope of success . . . This is a pattern I have become all too familiar with in my lengthy career as a criminal barrister and Crown Court recorder. All 16 rape cases I defended recently at a North London court resulted in not guilty verdicts. None of them should ever have gone to court. So why is it happening?

    "Until the Criminal Justice Act in 1994, juries were warned by a judge of the 'danger' in convicting in rape cases where there was no supporting evidence. This rule was considered objectionable and demeaning to women so the law was changed. However, today we seem to be faced with a situation where a case can go to court with no supporting evidence of any sort but the woman's complaint. And as rape normally carries a sentence of at least four or five years, juries are reluctant to convict a man unless they can find something tangible that helps them".

He lists a series of circumstances in which that might be the case, and then goes on to say:

    "I have seen all these [the circumstances to which he referred] and used them, in favour of women, when I have been prosecuting. But all too often, when I open the brief there is nothing. So who is responsible for bringing these cases to court? The blame lies with the police and the Crown Prosecution Service (CPS), who are currently too afraid of the rape lobby to throw out an insubstantial case. The rape charities and campaigners have tremendous power. People and parliaments will always listen to them and no one is willing to contradict their views because rape is such a terrible crime . . . So what can a woman do?

He sets out once more the relevant circumstances.

This criminal barrister believes that the Bill we are currently dealing with will not sort out the problems he faces in court when he is prosecuting. He believes that it simply will not work and that it may well lead to further acquittals where an acquittal might not be the right way to proceed. His view is that the problem rests with juries. In cases where it is the word of one person against another, more often than not—indeed, almost invariably—juries will never convict. Why are we bringing "word against word" cases to court? Why are we spending vast amounts of public money on bringing such cases to court when what they need is the critical additional component of corroborative evidence?

All I can say to Ministers is this: please understand that if the intention is to increase convictions, the Bill may fail in exactly the same way as the change of law on corroboration did in 1996, in so far as it did not work in the way that Ministers intended. I have been told that when it was no longer necessary to deal with the issue of corroboration, juries compensated by having in their minds a need to balance the consideration where otherwise it would act against the interests of the defendant.

Let us not once again introduce a change in law which has the reverse effect from that intended.

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Lord McCluskey: As a Scot, perhaps I may be allowed to join in the debate. I am emboldened to do so having heard my friend the noble and learned Lord, Lord Mackay of Clashfern, make a point. First, however, I wish to support a point made by a number of noble Lords, and most recently by the noble Baroness, Lady Carnegy of Lour.

I have almost 50 years of experience in the criminal courts in Scotland, where we do not have a similar statutory provision. Around 19 of those years were spent on the Bench, directing or charging juries in criminal trials, many of those being rape trials. It is the duty of the trial judge to try to ensure that the jury understands the legal context in which the case has to be decided. If I had this provision before me, I would feel it necessary to explain to the jury all of the following points. In regard to Clause 1(1)(a), I would feel it necessary to explain what is meant by "intentionally". I would feel it necessary to explain what is meant by "penetration", which noble Lords will see is defined in Clause 81(2) as including "withdrawal", and which I would also feel it necessary to explain.

I would feel it necessary to define what is meant by "the vagina", which is defined in another subsection as "including the vulva". I would feel it necessary to define what is meant by "consent". I would feel it necessary to say something about the meaning of "belief". I would think it necessary to say something about what is meant by the concept of "giving no thought". I would feel it necessary to instruct the jury about the meaning of the words in Clause 1(2),

    "whether B consents, or otherwise".

I would find it necessary to explain the meaning of "a reasonable person". I would find it necessary to say a word or two about "doubt". I would find it necessary to explain the word "sufficient" in Clause 1(3)(b), in particular in reference to later provisions in Clause 78, about what is and is not meant by "sufficient"; and I would find it necessary to explain the meaning of "reasonable doubt".

The number of errors that I could make in the course of attempting that exercise is legion, while the number of appeals that would arise out of my mistakes would be equally legion. I am concerned that, ultimately, we would put an enormous burden on to the Appeal Court without clarifying the issues in the minds either of jurors or of the general public. Thus I fear that this provision will fail in its intended effect.

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