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Lord Crickhowell: As a non-lawyer I hesitate to ask a question at this stage but I have listened to all of the debate except the first few minutes. I thought that the noble and learned Lord was going to move on to the second part of an argument, but I do not think that he is. That is why I ask this question. Again and again and again he advanced a case for having an objective test. But having listened to the debate today I formed the conviction, on the basis of the wealth of evidence that is being produced by experts, that the particular definitions in the Bill will be totally unworkable. Is the noble and learned Lord now going on to a second part of his defence, which is, "The Bill, as I have drafted it, stands and I defend it", or is he saying only that there must be an objective test? The noble and learned Lord seems to have produced an objective test that is almost universally condemned.

Lord Falconer of Thoroton: If the noble Lord had heard the beginning of the debate, he would be aware that we decided to debate the principle of the matter. Given that various amendments seek to change the test in various ways, we can, in debating those amendments determine whether or not the way in which the Government devised the test is the best way to devise it for those who support an objective test.

I turn to the important point raised by the noble Lord, Lord Carlile. He describes cases which I accept could occur. However one constructs the test, the test

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must be capable of dealing with the kind of situation which the noble Lord identifies; namely, looking at all the circumstances which might well, particularly in the kind of circumstances to which the noble Lord referred, include the attributes of a particular defendant. In looking at the circumstances a reasonable person must have regard to some of the attributes of the defendant. As I understood it, the noble Lord described someone suffering from severe mental impairment. That would be a factor which the jury could take into account. It would not always constitute a defence, but so long as the jury is able to ask itself, "How would a reasonable man think that particular person in those circumstances should have behaved?" the objective element is brought in.

Lord Carlile of Berriew: I said that I would not intervene again but I do so for the express purpose of expressing my gratitude to the Minister for the very important concession that he has just made. Can we take it, therefore, that the Government will in due course, of their own motion, introduce amendments which will make it clear that what the Minister has just said is in reality the law?

Lord Falconer of Thoroton: We do not think that it is necessary to do that. The next amendment concerns whether a defendant acted reasonably or acted as a reasonable man thinks a person should act. No doubt some lawyers would say that the majority decision in Morgan was right whereas other lawyers would say that the minority decision was right. We believe that the right approach is to introduce the objective element, to focus the jury on what circumstances confronted the defendant and for the jury to ask itself whether what the defendant did was reasonable in all the circumstances.

Lord Thomas of Gresford: Would that include the defendant's personal characteristics—who he is?

Lord Falconer of Thoroton: All the circumstances could be taken into account. It is for the judge and the jury together to work out the extent to which they should take into account the particular attributes of the defendant. I do not think that is difficult. I do not think that juries will have any difficulty with that. I believe that the test is correct in terms of the law, although no doubt we shall now have an interesting debate on that. I believe that it is possible to ask the jury the question, "Did the defendant act reasonably in all the circumstances"? For those reasons we believe that an objective element is sensible, just and will lead to a greater number of convictions. Therefore, I invite the noble Lord to withdraw the amendment.

Lord Lloyd of Berwick: At an earlier stage of his reply the noble and learned Lord referred to the Heilbron report which confirmed the law as stated in Morgan. The noble and learned Lord then said rather dismissively that that was a long time ago and things might have changed. But how does he deal with the fact that the Law Commission, which reported only in

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February 2000, came down against Clause 1(3)? How does the noble and learned Lord deal with the question that the Government's own review came down against Clause 1(3)? I gave the references in the course of my speech but I should be very happy to give them again. The noble and learned Lord has nothing to support his argument.

Lord Falconer of Thoroton: We are grateful for the work that the Law Commission has done but the issue we are discussing goes beyond simply a question of law reform. There is an issue here that a wider community than simply the lawyers must decide.

The members of the review were divided as to whether or not an objective test should be introduced. Some said that it should; some said that it should not. Some were attracted to the Canadian model which includes an objective element.

Lord Lloyd of Berwick: I read again the relevant sentence:

    "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".

Lord Falconer of Thoroton: I quote from the consultation paper:

    "The Steering Group was very attracted to the Canadian solution to this very difficult problem. In Canada the law retains an honest but mistaken belief defence but fetters when it can be used in a way that ties in with the definition of consent. The intention was to introduce an 'air of reality' . . . The Canadian Criminal Code states . . .

    the accused did not take reasonable steps, in the circumstances known to him at the time, to ascertain that the complainant was consenting".

So the steering group recommends the Canadian model, which is similar to the model that we have adopted.

Lord Ackner: Does the noble and learned Lord accept that his proposal can result in a person being found guilty of rape by reason of his mistake?

Lord Falconer of Thoroton: It allows a person to be guilty of rape where he believes that there was consent when there was not, and that belief is unreasonable, just as the current law permits someone to be acquitted of rape where he mistakenly believes in consent, no matter how unreasonably.

6.30 p.m.

Earl Russell: I wonder whether the Minister has finally sat down. I listened to him with great care, and I believe that he has done more damage to his own case than all the rest of us put together.

I was fascinated by the statistics that he quoted. He said that 45 per cent of rape cases that came to court resulted in conviction but only 7 per cent of reported rapes resulted in conviction. Surely, we need not to increase the 45 per cent by changing the law, but to

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address the 7 per cent. We need to address the extreme difficulty of getting women to bring rape cases to court.

I have some personal knowledge of this matter. In the course of an academic career, three pupils reported to me the experience of being raped. In only one of those three cases did I persuade the person to go to court. An uncomfortable feeling lingers in the back of my mind that the one I persuaded to go to court was the one to whom I did most harm. The effect of the rape on those three people was very different. It had nothing to do with the severity of the offence and everything to do with their own character. One of them reminded me of nothing so much as a hen shaking her feathers to straighten them after a cock had been at her. One of them has not recovered in 10 years. The one in the middle went to court, and I believe that she had cause to regret it.

In these cases, it is usually the detail of the cross-examination that causes the problem. A senior journalist, who was formerly a struggling barrister, told me a story about a time when he was one of a group of people defending in a gang-rape case. He said that he did what he thought was necessary for the case, going through his cross-examination in excruciating and practical detail. The next person, who defended the next one of the gang accused, is now an extremely prominent lawyer-politician. He began his cross-examination with the words, "I am sorry that you have had to go through such an extremely uncomfortable experience, but I am sure you will understand that justice must be done. Before we begin, look carefully at the accused. Are you certain that he is one of those who attacked you?" She looked carefully at him and said, "No".

Here we have the root of the mischief. The actual process of the trial is for many women too unpleasant to go through. It is almost as bad, and in some cases quite as bad, as being raped again. It is difficult to see what needs to be done about that, but we should address that question and not simply change the law.

When we debated the Youth Justice and Criminal Evidence Bill, we were on the right lines. The directions in that Act could be interpreted in a slightly more restrictive way than they are at present. I used to be against the introduction of any previous sexual history, but I was persuaded that I was mistaken by the noble Baroness, Lady Kennedy of The Shaws, who described a case in which it was impossible to establish what happened without invoking previous history.

We need to consider the pre-trial stage and the nature of the cross-examination. We need to make the process of reporting and trying rape a great deal less unpleasant for the putative victim. My noble friend Lord Phillips will note that I use the word "putative". If the process of the trial is as unpleasant as the offence itself, we will not get many convictions.

Reforming the law and increasing the proportion of convictions among those who actually get to court is not an answer. It is likely to lead to increasing convictions, but only because the wrong people will be

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convicted. Those who terrify their victim so much that their victim will not come forward are likely to be the worst offenders, who under these proposals will continue to get off. The bumblers who get to court may be more likely to be convicted, when they may not actually be guilty. We have not got the answer here in the Bill; we are attacking the wrong problem.

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