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Baroness Noakes: I thank the Minister for introducing the amendments in this group and for his helpful letter of explanation, sent when he tabled the amendments—especially for the text of the redrafted Clauses 78 and 79. That made our lives a little easier.

I shall speak to Amendments Nos. 17, 28, 40, 379, 385, 386, 396 and 397, as well as to clause stand part. I shall attempt so far as possible to take into account the impact of the Minister's amendments and avoid overlap.

It is probably easiest if I start with Amendment No. 385. In that case, the Government have agreed with our amendment. Subsection (2) of Clause 78 was

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deemed unworkable by very many people. I am glad that the Government have withdrawn that aspect of Clause 78. As the Minister explained, the meat of Clause 78 will now be found in two places: subsections (1) and (3) as redrafted in one new clause. My Amendments Nos. 379 and 386 propose the deletion of subsections (1) and (3). Hence, some of the issues that caused me to table those amendments remain after the redraft that the Minister has just explained.

I deal first with the shifting burden of proof for the defendant which was formerly in Clause 78(1)(b) but remains in the redrafted Clause 78. We welcome the abandonment of Clause 78(1)(a) and its confusing presumption of lack of consent. However, Clause 78(1)(b) as it remains, with its presumption of lack of belief in consent, raises issues of fairness in the shifting of the burden of proof to the defendant. The Criminal Bar Association has pointed out that if the circumstances set out in what is currently Clause 78(3) are established, there will already be a heavy evidential burden on the defendant with regard to the mental element, especially since the objective reasonableness test in Clause 1(3) applies. The association believes that the shifting burden of proof will be an unnecessary complication for trial judges and juries and will not increase conviction rates. I look to the Minister to comment in particular on the workability of the redrafted part of Clause 78. Workability, as I said in connection with other groups of amendments, is a key issue for these Benches.

Clause 78(3) survives unscathed in the Government's redraft. My Amendment No. 386 proposes the deletion of the clause, but that is on a probing basis. In the report Setting the Boundaries, the recommendation was that the law should set out a non-exhaustive list of circumstances where consent would not be present. However, it would be left to the court to consider the specific circumstances. In several respects, the Government's rebuttal presumptions do not go as far as suggested in the report. For example, the report suggested that the list should cover fear of serious detriment such as the loss of a job, and that does not find its way into Clause 78(3).

One of the problems with definitive lists such as that in subsection (3) is that other circumstances will be treated as of much less importance by reason of their exclusion from the definitive list. Indeed, in the Government's White Paper, Protecting the Public, they said:

    "Including such a list . . . will . . . send a clear . . . signal about the circumstances in which sexual activity is likely to be wrong".

The problem is that an equally clear signal is sent that circumstances not on the list are not necessarily wrong. I shall listen carefully to what the Minister has to say about how flexibility in the law will be retained in this definitive list. Will he say, for example, how he sees items not on the list—for example, the fear of economic harm—interacting with the list as drafted?

Amendments Nos. 396 and 397 delete subsections (5) to (8) of Clause 78, the subsections which survive in the second redrafted clause. I have a problem with conclusive presumptions. Being black and white, they give no flexibility to cope with situations that are

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grey, and it is in the grey areas that we find the majority of human existence. I start with subsections (5) and (6), which result in conclusive presumptions about what reasonable persons would think or do where the only evidence put forward of a defendant's belief rests on something said or done by a third party.

My question to the Minister is why it was necessary to put these provisions in the Bill and why they are in the form of conclusive presumptions. Using the objective test of reasonableness in Clause 1(3), we have a test as to whether a reasonable person would doubt consent and then act in a sufficient way to resolve doubt. Do the Government believe that a jury faced with no evidence of consent other than second-hand evidence would conclude under Clause 1(3) that the defendant had thought and acted reasonably? I cannot think of a set of circumstances that would lead a jury to that conclusion.

Having introduced the objective test of reasonableness, the Government should stick to it, however. If they did not they would say that, judged objectively, someone may have reached a reasonable conclusion about consent and acted reasonably to resolve any doubt, but is still guilty because of the conclusive presumptions set out in Clause 78. What is implied is that the Government do not have complete confidence in the objective tests that they have drafted in Clause 1(3).

Clause 78(7) and (8) also involves conclusive presumptions about consent and belief in consent, as the Minister explained. It deals with very black and white circumstances. I completely see that, in the majority of cases, deceit such as that referred to will mean that consent does not exist as under the current law. Is the Minister convinced that there are no grey areas in which, for example, it is clear that consent would have been given despite the deceit?

I would feel more comfortable with those subsections if rebuttable rather than conclusive presumptions were set up. How can the Government be sure that no injustice could be done through the conclusive presumptions?

Lord Thomas of Gresford: I am listed among those opposing the Question whether Clause 78 stand part of the Bill. The whole clause is misconceived. It is not right in principle and it is totally impractical.

I shall deal with the question of principle first. Has the Minister received advice concerning the human rights aspects of the presumptions that he has made conclusive? No doubt advice has been received. But they are not compatible with Article 6(a). The Minister knows that; there is no need for me to go into a lengthy discussion of the convention. Conclusive presumptions are generally contrary to that convention.

On practicality, we are trying to arrive at something understandable and simple for a jury to follow. No one has suggested that any tribunal other than a jury should decide the issues in a rape trial. There are three issues: intentional penetration, lack of consent and lack of belief in consent. Why cannot a jury simply

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have those issues put in front of it for it to decide in regard to the particular individual and all the circumstances surrounding them? Why is it necessary to force its thinking in a particular channel?

If there is, for example, evidence of violence at the time of or immediately before the act, it may well be difficult for the jury to come to any conclusion other than that the defendant did not believe in consent. The fact that he used violence is a strong indicator that he did not believe in it. Similarly, with threats of violence either to the victim, her children or any other person, it would again be very difficult for the defendant not to give evidence. He would have to do so, to give an explanation of why that was not an indication of his state of belief at the time.

Again, in respect of the detention of the complainant at the time of the relevant act, I recall a case in which I was involved where a month's detention was alleged. However, a difficulty arose because the complainant had drawn her social security every week. Therefore, the suggestion that she was in prison was a little hard for her to carry through and the charge was dismissed.

However, if a person is detained unlawfully, as a matter of common sense the burden passes to the defendant to give an explanation and to say why he believed that the woman was consenting, even though she was, for example, tied up or in a locked room, or whatever form of unlawful detention may have been employed. We have already discussed the question of the complainant being asleep or unconscious. That is a difficult area, as we have already found out. As for communication of consent, again the defendant has something to explain.

Therefore, it seems to me that the clause seeks to follow the natural thought processes that a jury will have but it will force it into particular channels. The noble and learned Lord knows that I made an attempt to draft what I called a "route to verdict" in relation to this clause, based on the type of routes to verdict that we customarily receive in serious crime cases. What emerged at the end—I appreciate that that was before the amendment tabled by the noble and learned Lord—was a completely unworkable mishmash. It involved the judge having to direct the jury that it had to be sure in respect of the basic facts. Then the burden shifted over to the defendant—it was a balance of probability—and then back to the prosecution, who had finally to make the jury sure.

As I believe I have demonstrated, when all that is put together, the members of a jury will be totally confused. If they are confused, they are likely to come to the wrong decision. At the bottom of it all, as we have seen with this Government's approach to mandatory sentencing, the trouble is that there is a mistrust of the judge and the jury. Instead of allowing these centuries-old institutions—if I dare to refer to judges as a centuries-old institution, although I believe that your Lordships follow what I mean—of the judiciary and the juries to get on with their job and to perform their constitutional function in the proper way, the Government want to interfere and put them

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through a maze, channelling their thoughts in a direction which the Government hope will reach a guilty verdict. I have said it many times and I repeat it: I do not believe that this legislation will improve the conviction rate, and I oppose the clause in its entirety.

9 p.m.

Lord Campbell of Alloway: Having tabled many of the amendments and having supported those that I have not tabled, at this hour of the night I wish to take up very little time. First, I wholly agree with the criticisms made by the noble Lord, Lord Thomas of Gresford, about the hopeless muddle and the sort of labyrinthine maze without a single silken thread to intelligibility. How will a jury find its way? I express it in a rather short and classical way: I agree with the speech that the noble Lord made—and a very good speech it was.

I have spoken to the subject of Clause 78 and Amendments Nos. 7, 18, 29 and 41. Indeed, I have given notice of my intention to oppose the Question that Clauses 78 and 79 stand part of the Bill. At this stage I need say no more than that. However, a gremlin has crept in. If one looks at the sequence of the Bill, one sees that my Amendment No. 11 to create a specific offence appears before Clause 3. It has been relegated out of order. I make no complaint. It is wonderful how much order has been achieved. However, by leave of the Committee—there are not many Members present—I shall speak to that now and make three points because in moving Amendment No. 2 I said that I would do so.

First, as regards the specific offence in Amendment No. 11, is the current law so inadequate that it is requisite? It is a serious assault. It may or may not cause serious bodily harm. I would ask those who practise in this branch of the law now—it must be 50 years since I last practised in this branch of law on the western circuit, so I defer to noble Lords who may know a little more about it today—whether the law is so inadequate that we have to have a specific offence. Is it because there is a disparity between the occasioning of actual bodily harm and not occasioning it?

Secondly, will the defence of "honest mistake", as I shall put it, still run?

Thirdly—these are not questions to be discussed at length at this hour—is it a lesser offence than rape, as the noble Baroness and I believe to be true, for the reasons that she gave so eloquently? If it is should it have a sentence of, say, 10 years or 12 years, but certainly not a maximum sentence of life imprisonment?

In a sense, Amendment No. 11 is a probing amendment. I do not know what the answer of your Lordships will be. I am not competent with my present knowledge to know what it should be. In due course, when this matter comes back on Report, I shall seek your Lordships' assistance, and, I hope, the assistance of my own Front Bench.

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The other amendments I shall speak to are: in Clause 3 Amendments Nos. 13, 14 and 17; in Clause 5, Amendments Nos. 23, 25, and 28; and in Clause 7, Amendments Nos. 35, 37 and 40. I mention those because they represent the structure of the amendments which I moved to Clause 1 carried into the Bill in these clauses.

Each clause has a slightly different connotation. The new offence is placed before Clause 3 because that is where the specific offences are. The first specific offence is assault by penetration. One notices that there is no problem about oral sex there. Again one gets the difficulty of Section 78 or subsection (3) applying. It is the same structure. So I have struck at that. That seems fair enough. I have not dealt with the sentence of life imprisonment because I did not feel competent to do so. It might not be appropriate, but I do not know.

Clause 5 deals with the sexual assault of touching and so on. I take the view that a term of imprisonment of 10 years on conviction on indictment reflects a lesser offence, but whether it is the right term I do not know. I am against an offence of this nature being tried on summary conviction. It is too serious. Certainly, something has gone wrong somewhere. One does not usually have an offence with a 10 years' maximum sentence tried by magistrates.

Clause 7 deals with a very nasty and serious offence. I referred to it elliptically when I was dealing with Amendment No. 1. It is causing a person to engage in sexual activity. My Amendment No. 35 would remove the words "or (3)" in subsection (1)(d). In Clause 7(3) the "reasonable person" applies. However serious an offence—even the ultimate offence of rape—it cannot be tried in this abstract way, which is devoid of the actual intend of the accused.

There again is the problem of the imprisonment, which is,

    "on conviction on indictment . . . not exceeding 10 years".

That does not seem to be unreasonable. My Amendments Nos. 42 and 43 would delete Clause 7(5)(b) and (d). Oral penetration is of lesser gravity. These are all matters for discussion when those amendments are moved. However, as they were grouped together and stood in my name, I felt that I should deal with them and state my position, which is that on Report I intend to move Amendments Nos. 1, 2, 3 and 6. I have not yet decided what to do about the others because we have not yet discussed them.

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