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Lord Lloyd of Berwick: Since the noble Lord has spoken to his Amendment No. 11, as I understand it, I should explain why I did not lend my name to it.

I do not support Amendment No. 11 for two reasons, as I explained earlier. First, I do not accept the drafting—the amendment would be much better contained not as a separate clause but as a new subsection (1) to Clause 3. Secondly, I do not accept the suggested maximum sentence of 10 years. Although forcible sexual penetration of the mouth is, as I explained, in my view less serious than rape, it is

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nevertheless sufficiently serious to justify a life sentence. That is why I should include it in Clause 3, not as a separate clause.

Baroness Mallalieu: I am grateful that my noble and learned friend the Minister recognised so early in the Bill's passage the defects in the original Clause 78. Although I do not like to carp and should like to welcome what he has done, I am bound to say that I still have grave concerns about his alternative proposal.

Before we broke for the dinner adjournment, when the noble Baroness, Lady Noakes, suggested that "a reasonable man" should be further defined and his characteristics set out in the Bill, my noble and learned friend replied that those matters could be left to a jury, who were well able to consider the circumstances and reach a conclusion. There has been a change during the past hour, because now we are told that the jury need a framework. The framework placed before us is very tightly drafted.

As has been said, human behaviour does not fit neatly into categories. One thing that one learns from experience in the courts and elsewhere—in life itself—is that in human relationships, one must expect the unexpected. If the categories are to be drawn as tightly as at present, there will inevitably be unforeseen circumstances that may lead to injustice.

Like the noble Lord, Lord Thomas, I am especially concerned about the shifting burden of proof. As we have heard, sexual cases are often difficult to prove because they involve one word against another with no independent or supporting evidence. I add to that that many of them now come before the courts not just many months but many years after the events are supposed to have happened. That makes it difficult to prove and establish the facts. In such circumstances, where we are dealing with a serious offence that carries a life sentence, it is wholly wrong to pass that evidential burden and those difficulties onto the defendant.

As I understood my noble and learned friend, he said that his purpose through the clauses was to raise public perception that the law can deliver convictions in such cases and, if I paraphrase him correctly—as I hope that I do—to send a signal about what sexual behaviour is and is not acceptable. In reality, all the categories that he described in the new clauses are circumstances in which a jury is, one would have thought, almost certain to conclude that the defendant was well aware that the complainant did not consent. In other words, they are precisely the sort of cases in which a conviction is likely in any event.

We are therefore once again producing what is in effect a public relations exercise, but is unlikely to lead to an increase in conviction rates. Indeed, for the reasons just given, it is likely to lead to difficulty and confusion because we are importing difficulties with the shifting burden of proof. It is all very well for us to say that it is easy for a jury to be told by a judge that one thing must be proved by one side and another by the other. It is not so easy to apply those burdens

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correctly when a jury is also dealing with complicated and difficult decisions about facts—often based on remarkably little evidence.

So although I understand what my noble and learned friend is trying to achieve, and although we all want the public's confidence raised, I am concerned that the law must meet the needs of justice. I fear that the provisions, even as redrafted, are likely to have the opposite effect to that advanced by my noble and learned friend.

9.15 p.m.

Lord Skelmersdale: As a non-legal onlooker, I am amazed. I referred earlier to trying to be a putative—to use the word of the noble Lord on the Liberal Democrat Benches—juror. In such cases, what does the noble Baroness, Lady Mallalieu, believe causes a jury to fail to convict? Is it because the jurors are not well instructed by the judge in the case? Is it because they do not believe the evidence given to them? Or is it because they do not comprehend the concept of the reasonable person—whether the future reasonable person suggested in the Bill—or the reasonable cause with which we have lived until now?

Baroness Mallalieu: I have not come across offences in every category, but I have been involved in cases comprising some of them. In such circumstances, it has not been my experience that juries fail to convict. They already convict in such circumstances, but we are now trying to import difficulties that may make that unlikely in the future. I say that because we are prescribing very closely circumstances that may not fit the bill.

Lord Skelmersdale: In other words, the noble Baroness trusts the jury.

Baroness Mallalieu: I certainly do. In this particular circumstance, it seems wholly wrong to set out what my noble and learned friend wants to do in a tight framework. It is much more important for the jury to look at the issues; that is to say, whether she consented, and, whether the defendant believed that she was consenting at the time. In a sense, that is a distraction. It puts on him a burden to deal with matters that the jury can already deal with under those headings.

Lord Thomas of Gresford: The noble Lord will surely appreciate that over quite a number of years public confidence in the courts has been diminished, not because of what has happened in the courts, but because of statements by successive Home Secretaries and politicians seeking votes and utilising their public prejudices in that way. It is far better for the Government to try to imbue in the public confidence in the judiciary and in juries rather than confidence in the drafters of this piece of paper. Those of us who have

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read it, and who know that it is clearly put forward by people with no practical experience, have no confidence in it at all.

Lord Skelmersdale: None the less, am I being naive in suggesting that the piece of paper to which the noble Lord, Lord Thomas of Gresford, refers—namely, this Bill—is the basis of the direction of the judge?

Lord Thomas of Gresford: It is not at the moment. It is left to the good sense of the jury to come to the proper conclusion. That is how it should be; it is where the trust should lie. The Bill says that we do not trust the jury to think rationally and reasonably. We have a democratic institution of 12 people taken from the community with no axe to grind and various points of view coming together to focus on the specific issue. They carry no baggage about the issue and are not case hardened. They look at the issue and decide what is just. A jury will not necessarily come to the same conclusion as a lawyer would reach. I am sure that the noble Lord, Lord Skelmersdale, would approve of the proposition that, in this field, lawyers' decisions may not be as good as those of a democratic institution—juries. I always have at the forefront of my mind the fact that the first things to go in any totalitarian regime are juries.

Lord Campbell of Alloway: My noble friend Lord Skelmersdale misunderstands the fundamental issue that we have been discussing. I know that he has been present most of the time.

The fundamental issue is not whether the Bill, or paper, as he put it, would constitute, as he put it, the directions that the judge would give to the jury. The straight answer is that, if the Bill became law, it would—but only in the sense that the judge would have to direct the jury in law as to the meaning of Clause 78, to which we are all opposed because it would be unintelligible.

Lord Skelmersdale: I described myself as possibly being naive; I am not that naive.

Lord Lloyd of Berwick: I apologise for not having heard what the Minister said in moving the amendment. The real question is the extent to which we are prepared to trust the jury to do its work. I have tried a number of rape cases, and I never found any difficulty in explaining the law to the juries. Nor did I ever disagree with the verdict reached.

Lord Falconer of Thoroton: My sympathies are with the noble Lord, Lord Skelmersdale. I may have mis-noted it, but I think that the noble Lord, Lord Thomas of Gresford, said—I accept his analysis—that the three essential elements in a rape case were intentional penetration, lack of consent and lack of belief. The Committee must not hold either of us to that being universal, but that broadly summarises it.

The noble Lord, Lord Thomas of Gresford, also said that, if the facts set out in Clause 78(3) were shown to be present, the burden passed, as a matter of

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common sense, to the defendant to show that he believed that the victim consented. That is precisely what this clause does.

Lord Thomas of Gresford: I did not say that. I said that the defendant had to give evidence about it in such circumstances. He certainly has to explain why he holds the belief that he does, if such circumstances arise. That does not mean that he has the persuasive burden.

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