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Lord Falconer of Thoroton: As ever, the noble Earl, Lord Russell, puts his point forcefully. However, it is not a question of either/or. We need to assist the victims when they come forward by giving them support, making them more convinced that the courtroom process will not be a terrifying revictimisation. That is partly a question of changing the law so that it better reflects a reasonable approach to their experience, but we also need to ensure that what happens to them in court is not terrifying.

We have introduced measures that are being rolled out now, which make it much easier for vulnerable or intimidated witnesses to give evidence in court. For example, they may give evidence behind screens, if that makes it easier for them, or even on video, away from the courtroom itself.

With the greatest respect to the noble Earl, Lord Russell, he is wrong to say that this is a one-approach issue. A whole range of approaches must be taken to make things easier. One of them is to make a substantive law that better reflects human experience.

I must correct myself on the precise figures for rape in 2001. The recorded number was 9,008, of which the percentage found guilty was 5.8 per cent. The number of people appearing on trial for rape was 1,267, of which the percentage found guilty was 41.2 per cent. I apologise for giving the figure wrongly before.

Lord Thomas of Gresford: For the benefit of the Committee, will the noble and learned Lord tell us the general percentage of conviction, as opposed to acquittals in other offences?

Lord Falconer of Thoroton: I shall need to check this answer, because I want to be sure that I am right, but I believe that for trial by jury the percentage of conviction is 73.4 per cent.

Lord Campbell of Alloway: I thank all noble Lords who have spoken. I should remind the House that we are supposed to be debating Amendment No. 2, although we had a general tour d'horizon. So much the better, but I thought I should remind the Committee of what we should be doing.

Amendment No. 3 would leave out subsection (3), and it is consequential on Amendment No. 2. I have undertaken not to take the opinion of the Committee on Amendment No. 2 today. I hope that that is acceptable to the noble and learned Lord, Lord Lloyd of Berwick, who was good enough to support me. The issue is entirely separate from the one regarding subsection (4), which refers to Clause 78. Amendments Nos. 4 and 5 are jammed between Amendments Nos. 3

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and 6, the merits of which have been canvassed only partially so far. I have not spoken on Amendments Nos. 4 and 5, but I shall do so when they are moved.

I should also remind the Committee, after all these hours of debate, that I gave the undertaking for another reason, which is related to Amendment No. 8. That was considered by some Members of the Committee, especially by the noble Lord, Lord Alexander of Weedon, as something that should be considered before a final decision was undertaken on Amendments Nos. 2 and 3, which seek to leave out subsection (3).

With respect, I should just say this. We have all, on all sides of the Committee, been speculating. The noble and learned Lord, Lord Ackner, thought that the low conviction rate was something to do with fees and something to do with all sorts of things. The prime reason why there is a low conviction rate is that there is an overall burden of proof on the Crown. The jury has to be sure before it convicts. That is the main reason, and that is what Clause 1(3) will do away with. It will substitute a concept of "a reasonable man" with a burden of proof on the defence and some compulsory presumptions as to non-consent.

I say this with respect to the noble and learned Lord. When he was engaged earlier in discussion with a certain noble Lord, he did not seem to appreciate that he has to approach the whole problem with a presumption of innocence in favour of the man. No one is a victim. We have the Crown on one side and the accused on the other, and there is not a victim until there is a conviction. Thereafter, as I tried to point out, the victim is very often the accused who, in many cases, has been erroneously convicted.

The Earl of Onslow: I seek clarification on one point. Is my noble friend suggesting that we have three choices: to take out the defence of unreasonable belief; to leave it as it is; or to accept Amendment No. 8? Presumably we have to have Amendment No. 8, which could be right; or have Clause 78, which may be wrong; or leave the law as it is? Is that correct? I think that I may have got myself into a muddle.

Lord Campbell of Alloway: Yes, I think that that is more or less right. Ultimately, we will either have Clause 1, but without subsections (3) and (4), or we will agree to the Motion of the noble and learned Lord, Lord Ackner, to knock it all out—that Clause 1 should not stand part—just like that. Thirdly, Amendment No. 8, tabled by the noble Lord, Lord Thomas of Gresford, could commend itself to the Committee. That is about where we will get at the end of the day—although heaven knows when we are going to get there. I hope that that is right. In these circumstances, I beg leave to withdraw the amendment, to which we shall return on Report.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Burnham): I have to tell the Committee that if Amendment No. 3 is agreed to, I cannot call Amendments Nos. 4 and 5 on grounds of pre-emption.

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Lord Campbell of Alloway had given notice of his intention to move Amendment No. 3:

    Page 1, line 13, leave out subsection (3).

The noble Lord said: I am advised by those at the Table that I would not be asked about Amendment No. 3 because, as I informed the Committee, it is consequential. I have, by leave, withdrawn Amendment No. 2. I shall therefore not move Amendment No. 3.

[Amendment No. 3 not moved.]

6.45 p.m.

Baroness Noakes moved Amendment No. 4:

    Page 1, line 14, after "person" insert "sharing the characteristics of A"

The noble Baroness said: In moving Amendment No. 4, I shall also speak to the other, very similar amendments in this group. Earlier, my noble friend Lord Lucas mentioned the role of professionals. I certainly do not denigrate the role of professionals. I think that the role of professional lawyers in the previous debate, long though it was, has demonstrated the value that professionals can bring to the Committee. I believe that we will need that professional wisdom in considering this group of amendments. We will certainly require a knowledge greater than I possess.

Amendments Nos. 4 and 5 insert the words,

    "sharing the characteristics of A",

into paragraphs (a) and (b) of Clause 1(3), which itself creates the objective test of reasonableness for a defendant's belief in consent. We are looking for whether a reasonable person sharing the defendant's characteristics would doubt whether consent had been given and then act to resolve such doubt. That is still an objective test, which I hope is not a return to the position following Morgan.

The Committee has already debated at length the objective test itself. Amendment No. 4 does not challenge that basic approach pro tem, but would temper it by requiring the jury to consider what a reasonable person showing the characteristics of the defendant would have thought or done.

This amendment was suggested by the Criminal Bar Association, which, as the Committee will be aware, accepted the basic approach to reasonableness in Clause 1(3). The intention behind the amendment is that if the defendant had, say, learning difficulties—the example given by the noble Lord, Lord Carlile, who I see is not in his place—the objective test applied to him would relate to someone with those types of learning difficulties. I do not think that it would be fair to apply the understanding and reasoning ability of, say, a person of average IQ to someone with severe learning difficulties. Similarly, the defendant may be quite young, perhaps a child as young as 10. In such cases we need to build a test around the characteristics of a child of that sort of age and not around an adult ability to understand the issues.

I accept that there may well be difficulties with the wording. I hope that the term "characteristics" cannot be interpreted too widely. I do not believe, for

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example, that it is a person's characteristic to be a drug addict—thus excusing narcotics-induced behaviour. I am open to suggestions on better drafting to achieve the modification of the objective test in the way in which I have outlined.

The amendment is put forward as a genuine attempt to ensure that the objective test of reasonableness, which the Government are introducing to remedy a lack of perceived fairness to putative victims, operates fairly for defendants. I hope that the Minister will either accept the amendment or say how the clause will operate to deal with the situation that I have described. I beg to move.

Lord Campbell of Alloway: I oppose this amendment, as I think is apparent to the Committee from what I have already said on a previous amendment. If the defence of honest and mistaken belief is abolished, so be it. However, the Crown no longer has the overall burden of proof, and the defence is hobbled by conclusive presumptions and by the burden of proof of establishing conduct related to the abstract concept of the conduct of a reasonable person. That has already been considered, and the objections to it are manifest—they have been made from all sides of the Committee, including from these Benches. The amendment piles Pelion on Ossa as regards obscurity and unfairness.

There is now no need to prove actual intent. The noble Lords, Lord Carlile of Berriew and Lord Thomas of Gresford, raised a fundamental objection to that on Second Reading. I referred to the sensitive approach of my noble friend Lord Astor of Hever. His speech in effect torpedoed the concept of a reasonable person—I shall come to characteristics in a moment—as a substitute for actual intent.

The noble Lord, Lord Carlile of Berriew, carried that to its ultimate conclusion to show how positions such as autism, mental state and IQ have to be taken into account, not only for the complainant—heavens—but for the accused. Justice works both ways. If a defendant has to prove that his conduct squares with that of a reasonable man, and he is half-dotty and the jury think that he is totally honest and did not intend to commit the crime, they have to convict him. That is the last dregs of injustice.

The situation is made even more difficult because there is a double whammy, like the double reasonableness in Clause 1(3). The first whammy to match is conduct, and the second is characteristics. Imagine the courtroom. Suppose one was trying to defend a pretty simple chap. In my young days in the West Country, quite a few people were certainly pretty dotty and now and then got into difficulties of the kind that we are discussing. They had the benefit of the presumption of innocence, and some got off and some did not. I cannot say whether that was right or wrong, because no one knows. The point was that machinery operated. The amendment to add characteristics, although intended to mitigate the unfairness of Clause 1(3) as related to the conduct of a reasonable person, does not do so. It imposes a further burden.

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Let us look at the practical situation. How on earth will the accused in a trial establish the burden of proof? He has to establish a requisite kinship between his characteristics and those of an abstract norm whom the jury might think of as a reasonable person. Would that reasonable person be likely to find himself in the dock in a rape trial? With respect, the whole idea is pretty incongruous. It cannot do justice. The Minister will have a fundamental objection to it and will not accept it.

Suppose counsel for the defence gets hold of the Shorter Oxford English Dictionary to look up "characteristics" to see what he has to establish. He would have to establish a match of some distinct, distinguishing marks of character and quality of character between his client in the dock and the invisible reasonable man. How will he do that? The burden of proof is on him; the Crown does not have to prove anything.

The defence counsel could call evidence. Are we to have the evidence of psychiatrists and psychologists to establish the double match in all rape trials? Heaven forfend. What would happen if my noble friend's amendment were accepted? Would the match be left to the jury, in the absence of evidence, so that they use their common sense to resolve the last-ditch defence for which the burden of proof is on the accused? Counsel could say, "It is matter for you, members of the jury; I can't lecture you on it. You'll have to do your best and afford a form of palm-tree justice". However, he would not tell them that the maximum sentence was life imprisonment.

Quite seriously, how is counsel to advance a reasoned defence? It is all but impossible. There is no evidence. Imagine the simple man in the dock. Counsel has to prove that that man's characteristics match the abstract norm. That is nonsense, and would create a manifest injustice.

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