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Lord Campbell of Alloway: I am much obliged to the Minister for giving way. He was to make efforts to produce a specimen direction before Report. Does that ignore the fundamental objection, if I can put it this way, to the reasonable man? It seems totally to ignore the overall objection to the concept of a reasonable man being imported as a substitute for actual intent.

Baroness Howarth of Breckland: While the Minister is being interrupted, may I respond to something? I was so thrown by inappropriately accusing the noble Lord, Lord Thomas, of something I did not intend that I did not follow through the point that was picked up. The issue for many women is that they never get to court. There is a real question about the level of assessment carried out by the Crown Prosecution Service and the investigation. One of my colleagues previously talked about the follow-through of these cases from the incident to the investigation, followed by the weighing of the evidence. Contrary to what is sometimes said in this Chamber, these cases are not taken forward because the women, it is thought, would not be believed.

Lord Falconer of Thoroton: Very much so. Listening to the debate, the question is whether there should be an objective element. When we weigh up the pain caused to the victim against what the defendant has to do, the balance tends to favour the victim rather than the defendant. Can we ask a jury whether the prosecution has proved beyond a reasonable doubt that the way in which the defendant came to an honest belief was totally unreasonable? Precisely how that would be phrased must be discussed when we reach the next group of amendments. Is that a difficult question to pose? I honestly believe that it is not. Is it a difficult question for juries to understand? We would have thought that juries were perfectly capable of understanding that.

Lord Phillips of Sudbury: The Minister falls prey to a common error in constantly referring to victims. The whole point of a trial for rape is to determine whether somebody is a victim. He has used that word a dozen times in the last dozen minutes. That is a measure of just how unsatisfactory the Government's position is.

Lord Falconer of Thoroton: No, because I was starting these arguments not from the perspective of the lawyer, with the greatest of respect, but from where there is a rape. What brings justice to a case where

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there is a victim? We must look at it from the point of view of the defendant, who might be wrongly accused, and from that of the victim who has been raped only to find that there has been an acquittal. In constructing the law, one must from time to time look at the wider perspective than simply the problem in relation to the individual defendant.

Lord Phillips of Sudbury: With the greatest respect, that is an untenable proposition. One is perfectly at liberty to look at the wider perspective, of course, and for this debate to be determined by lawyers' talk is inadequate. None the less, for the Minister to say that a complaint brought by an indignant woman enables or entitles him to refer to her as a victim before there has been a trial and an outcome is quite wrong.

Lord Falconer of Thoroton: Again, with the greatest respect to the noble Lord, I do not think he understands my point. Rapes occur. We need the criminal law, in part, to deal with them. What is a fair way of ensuring that the court does justice to the defendant as well as the victim? A balance has to be struck. If the law is constructed in such a way, as the noble Baroness, Lady Howarth, says, that the CPS, quite legitimately under the current law, is unwilling to allow a case to go before a jury, or if, when it does, there are unreasonable barriers to the truth coming out, there is something wrong with the law, not because it leads to unfair convictions of defendants but because victims—real victims, by which I mean people who have been raped—find that, as the Law Commission said, bogus defences can succeed. I believe that we should look at the way the law works and consider what can improve that without leading to an undue risk of defendants being wrongfully convicted. The approach we are adopting has been followed by other jurisdictions; we believe it is fairer, without prejudicing the possibility of a defendant suffering a wrongful conviction.

6.15 p.m.

Lord Carlile of Berriew: I apologise for intervening again, and shall try to restrain myself from doing so on a further occasion. The Minister really cannot get away with constantly using the phrase "introducing an objective element" as though an objective element were not already there. We have had an objective element since the Sexual Offences (Amendment) Act 2000. The Minister should be justifying the complete removal of a subjective element. I invite him to address the serious point that I attempted to make about people suffering from mental illness and mental disability who are likely to be the very small number of people to find themselves convicted of an extremely serious offence as a result of these proposals.

Lord Falconer of Thoroton: On the existence of an objective element, the jury can have regard to, and should be directed to have regard to, the reasonableness or otherwise of the explanation offered as to why the defendant believed that the victim consented. But even if that belief is totally

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unreasonable, the jury are entitled to say that because it was honest—and that is the only question on belief in consent—not only can they acquit, they must acquit. A totally unreasonable belief, if honestly held, currently leads to an acquittal. That is the current law.

Lord Thomas of Gresford: Does the Minister not weigh in the balance and take into account the collective experience of the people who have spoken in this debate, all of whom say that they do not know of a case in which this unreasonable but honest belief defence has succeeded?

Lord Falconer of Thoroton: Of course I take into account the unbelievable wealth of experience in this House, but there are two views among lawyers as well—lawyers who are just as experienced as Members of this House with their collective wisdom in relation to the trial of serious sexual cases.

The Earl of Onslow: Can the Minister help a blank mind? Do he or his department know of any cases in which this defence has succeeded? All the other people here say such cases do not exist. If he has evidence that he is curing an illness that exists, can we have it?

Lord Falconer of Thoroton: The difficulty we all have, as noble Lords will be the first to acknowledge, is that we are speculating. Everybody is in the same position. Quite rightly, we are not allowed to ask juries why they acquitted somebody. It is not thought to be in the interests of the administration of justice, and I do not disagree with that. Everyone in the Chamber is speculating why juries acquit. I agree with the noble Lord, Lord Thomas of Gresford, that the views of people with great experience, such as him, must be taken extremely seriously.

Baroness Noakes: I thank the noble and learned Lord for giving way. I say with the greatest respect that he, too, is speculating. One of the questions I put to him concerned what his department estimated to be the impact of the change in the law on conviction rates in particular or, to put that more accurately, whether or not it would result in more convictions of people who should be convicted of rape and not wrongful convictions. I have not heard an answer to that. I heard the noble and learned Lord say that he expected conviction rates to go up but he could not say by how much. It seems to me that we need carefully reasoned analysis of what existing cases would result in a different outcome if this change in the law were implemented. If we cannot establish that, we have to consider whether or not it is safe to proceed with a change in the law.

Baroness Mallalieu: I interrupt further on the same point to enable the noble and learned Lord to deal with my point as well. I wonder whether the noble and learned Lord can help us. He says that we are speculating—as, indeed, we all accept that we are—about the reasons why a jury comes to a verdict of this

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kind. But, as I understand what Members of the Committee have said and certainly in my experience, I have never heard advanced the defence that we are discussing. If the jury were to come to such a view based upon it, it would be fanciful. I have never heard advanced a defence on the mistaken belief that we are discussing. I am not aware of any others who have heard that.

Lord Falconer of Thoroton: It was advanced in the case of Morgan. If one speaks to lawyers, one understands that it is a combination of two elements. Normally the defence would be, "I believe that she consented. She did consent".

Lord Thomas of Gresford: Morgan was convicted.

Lord Falconer of Thoroton: Indeed he was. As I say, the defence would comprise the two elements, "The victim consented. I believe that she consented". That is how the defence would normally be presented. I am gratified to see that the noble Lord, Lord Carlile, nods to indicate that that is how the defence is normally presented. Such a defence normally has two limbs.

I put our case for a change in the law on the basis that it will increase the number of rightful convictions. I am not in a position to indicate what the percentage or the number would be, nor I suspect would anyone be in that position. Further, I put our case on the basis that it is a more just approach to the question of sexual violence, rape, penetration and so on, against women. That is how I put my case. I have the support not just of those involved in—

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