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Lord Dholakia: My Lords, I thank the Minister. I apologise for the length of my contribution to the debate. From time to time, the Minister and I may disagree, but that can never detract from his openness and honesty when dealing with this subject. I am satisfied by what he has said and I beg leave to withdraw the amendment.
The noble and learned Lord said: We now turn to Clause 78. I have been extremely grateful for the discussions I have had with a number of noble Lords inside the House and members of the judiciary outside the House in considering Clause 78. I shall start by explaining why we included these provisions in the Bill.
In its consultation paper Setting the Boundaries, the independent review body proposed that there should be a statutory list of circumstances in which it could be conclusively presumed by the jury that the complainant
We support the general intention of the review body and agree that making a clear statement in the legislation about the circumstances in which sexual activity is not acceptable will provide juries with a clear framework within which to make fair and just decisions. It would also serve as a clear statement to the public more widely. This should redress the balance in favour of victims. We hope that this will encourage victims to place their faith in the criminal justice system and to bring more cases to trial.
However, we were not satisfied that the circumstances proposed by the review body were all ones in which it could be safely and conclusively assumed that consent was not present. Notwithstanding existing case law, we believe that, in the interests of justice to the defendant, a conclusive presumption of guilt should be allowed only in very narrowly defined circumstances in which it is impossible to conceive that the complainant could have consented to the alleged sexual activity.
In our view, there are only two circumstances in which it can be conclusively presumed that consent was not presentnamely, where the prosecution is able to prove that the defendant practised deception about the nature or purpose of the sexual act or where the defendant impersonated someone known personally to the complainant in order to obtain consent. In such cases, there can be no doubt in anyone's mind that the activity was non-consensual.
In addition, where someone claims that he believed the complainant was consenting solely on the basis of what he was told by a third party, we are of the firm view that he should be conclusively presumed to have acted unreasonably. Assuming that the prosecution proved that the complainant did not consent, the defendant will be found guilty.
Beyond this, other circumstances suggested by the review body may give rise to serious doubts about the ability of the complainant to exercise a free choice. However, in those cases, we believe that the defendant should still be given the opportunity to rebut any presumptions made against him. Where, for example, someone engages in sexual activity with their kidnapper while being held hostage for a ransom, empirical evidence suggests that we cannot rule out the possibility, however remote, that the sexual activity might be truly consensual. The kidnapper would still be guilty of abduction but not of the sex offence if he could establish that he truly believed the complainant consented and that it was reasonable in the circumstances so to believe.
In light of these concerns, should we limit ourselves to listing in statute the two sets of circumstances in which it should be conclusively presumed that consent is not present and that all other cases should be left to the prosecution and defence to argue as they do now, without making any statutory changes to that process? We think not. That would ignore all the evidence that indicates that victims currently do not have faith in the court process and that the attrition rate in rape and other sexual abuse cases is too high. We discussed that before the supper break. We need to take steps to raise the public perception of the ability of our courts to deliver justice.
We think, therefore, that we should incorporate in statute rebuttable presumptions where the prosecution proves that one of the circumstances in Clause 78(3) existed, that the defendant knew this and that the complainant did not consent. This will make it crystal clear that the burden lies on the defendant to prove that he believed that the complainant was consenting. This clearly shifts the balance in favour of the complainant, although only if the circumstances and the victim's lack of consent are established. It is fully intended to do so, because the case has been moved out of the arena of balancing "he said" against "she said" by the strength of the evidence produced by the prosecution.
A clear signal is then sent to everyone about the circumstances in which sexual activity will be presumed to be non-consensual, and anyone who decides to engage in sexual activity in one of those defined circumstances cannot fail to be aware of the obligation upon him to make sure that his sexual partner does, in fact, consent. Where there is any doubt, he should desist. We believe that there is a great deal to be gained from having guidelines approved by Parliament and enshrined in statute.
However, since publication of the Bill, our proposals have been criticised by judges and other legal practitioners as being overly complicated and that there would be a risk of juries acquitting defendants not on the facts of the case but because they do not understand the direction they have been given or how to assess the evidence.
There would also be a risk in cases where a jury convicts the defendant that the complicated nature of these provisions is likely to lead to appeals in respect of whether the directions to the jury were either accurate or appropriate.
We have listened to these criticisms and discussed them in particular with the noble Lord, Lord Thomas of Gresford. However, we did not restrict our discussions but discussed the matter widely. We have also spoken to members of the senior judiciary. We have come to the conclusion that Clause 78 could and should be simplified, while retaining our policy objective of making clear in statute that where sexual
As the clause was drafted in the introductory print of the Bill, there were two rebuttable presumptions: an evidential one in relation to lack of consent and a legal or persuasive burden in relation to belief in consent. We are, in tabling government Amendments Nos. 380, 381, 382, 383, 384, 385 and 387, dropping from the clause the weaker evidential burden in relation to lack of consent. This burden was always going to be relatively easy for the defendant to rebut as all he would need to do would be to go into the witness box and say that the complainant seemed to be consenting.
We are, however, retaining the stronger, and more effective, persuasive burden in relation to belief in consent. So if the prosecution proves the existence of one of the circumstances in subsection (3), that the defendant knew of the circumstances and that the complainant did not consent, the defendant will be taken not to have believed that the complainant consented unless he is able to prove that he did believe that the victim consented. This places a persuasive burden on the defendant in relation to belief in consent. He will need to persuade the jury, on the balance of probabilities, that, notwithstanding the existence of any of the circumstances in subsection (3)for example, that the victim was subjected to violence immediately before the acthe nevertheless believed that the complainant consented.
We have also separated off into their own clause the conclusive presumptions on consent in subsections (5) to (8) of the clause as it stands in the introductory print. That is done by Amendment No. 398.
Our purpose is to simplify the existing clause and to signal the difference between the two types of presumption. We are making no changes to the provisions relating to conclusive presumptions. Amendments Nos. 7, 18, 29, 41 and 399 are purely consequential textual amendments resulting from the change.
While the conclusive presumptions have also been criticised, it is important that they stay in the Bill. The list of circumstances at Clause 78(8) relates to situations in which it is to be conclusively presumed both that the complainant did not consent to the relevant act and that the defendant did not believe that the complainant consented to the relevant act.
The first of these circumstances in subsection (8)(a) relates to occasions on which the defendant intentionally deceives the complainant as to the nature and purpose of the relevant act. For example, it applies when a doctor digitally penetrates the patient, telling her it is necessary for medical reasons when in fact it is for his own sexual gratification. That is taken from a precedent that has been firmly established by case law. We are not proposing any changes to the existing law. We are only making it clear in statute. We are trying to bring the law on sexual offences in one place.
Subsection (5) contains a different kind of presumption. When the prosecution is able to prove that the defendant did the relevant act and that the complainant did not consent to it, and the only evidence adduced by the defendant about the circumstances that led him to believe that the complainant consented relates to something said or done by a third party, the defendant will conclusively be presumed not to have met the requirements of the reasonableness test. It is the personal responsibility of the defendant to ensure that the complainant has given consent to the relevant act, and the provisions in subsection (5) make it clear that a defendant cannot rely on a third party to discharge that responsibility for him. Thus, for example, it will not be sufficient for a defendant to claim that he believed that the complainant consented because a friend told him that the complainant wanted to have sex with the defendant and that he should ignore any protests by the complainant because she would be pretending to resist.
Amendments Nos. 394 and 395 are minor drafting amendments. The effect of subsection (3)(a) and (b) is that where there is violence or a threat of violence immediately before the relevant act, Clause 78 applies. Subsection (4) extends that so that when there is a series of sexual acts, Clause 78 applies where the violence or threat took place immediately before the first of those acts. Amendments Nos. 394 and 395 change subsection (4) so that instead of referring to the time "when" the relevant act began, it refers to the time "immediately before" the relevant act began, thus more closely reflecting the wording in subsection (3).
We believe that Clause 78 as amended by these amendments achieves the policy intention stated in Setting the Boundaries, listing those circumstances where consent will be presumed absent or most likely to be absent in a workable way. It is both simple and clear. I appreciate that amendments have been tabled in relation to the particular circumstances that should be covered in our list of rebuttable presumptions. They have been grouped for debate at a later date and, with the leave of Members of the Committee, I will defer discussion on what is in Clause 78(3) until those points have been made. I beg to move.
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