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Lord Campbell of Alloway: I have listened with respect and attention to the arguments of my noble friend. I am afraid that I do not find them at all convincing as a basis for amending these provisions.
Baroness Noakes: I shall speak to Amendments Nos. 389 and 391 in this group. Unlike my noble friend Lord Campbell of Alloway, I find what my noble friend Lord Lucas said very compelling. Although Amendments Nos. 389 and 391 are in my name, I associate myself with the remarks of my noble friend Lord Lucas in introducing the amendments in his name, particularly the concept of "serious detriment". We discussed this briefly in relation to the amendments to Clause 78 on our first day in Committee when I raised the issue of the absence from the list of "serious detriment" which had been included in Setting the Boundaries. If we have a list of circumstances in which a rebuttal of presumption will arise under Clause 78(3), it seems very odd to omit a major set of circumstances which should give rise to a rebuttal of presumption, at least alongside the other examples.
Amendments Nos. 389 and 391 deal with the removal of the word "immediate". The assumption behind including the word is that if a person is not to be harmed immediately, he or she can presumably go to the police and get adequate protection. Therefore, the threat of harm, if it is not immediate, is somehow not a real one to be taken seriously when considering whether the offence of rape has been committed.
That is much too simplistic an analysis, however, and does not take account of the way in which rape, or other sexual offences, can take place in the context of existing abusive relationships. If threats are made of future harm, whether to the victim, to a child or to another relative or friend, those threats can carry an absolute conviction, very powerfully, to the person who is being attacked. That person, if he or she is in an abusive relationship, may feel completely powerless to resist. It is just as real as any other form of threat.
I do not believe that Setting the Boundaries recommended the use of the word "immediate". Indeed, it stressed that the test should be based on the perception of the victim, which is what we are discussing. How does the victim feel about the threat that is being made? For those reasons, we hope that the Government will consider these amendments.
Baroness Blatch: I support both my noble friends, because they have both made a compelling case. One is being asked to prove that the threat was of immediate violence, when the threat may be that the person making it will come and get the victim at another time, or a threat may be made some time later. The points that my noble friends made are very powerful, and I support them both.
No one would dispute what the noble Baroness, Lady Noakes, said about the potency of the threat of violence in future. Everyone would accept that it can lead to terror. However, the critical issue raised by the amendments in relation to the word "immediate" is whether it is appropriate to impose a persuasive burden in such circumstances. In effect it would mean that once the threat of violence had been established, the burden would shift to the defendant. That is the question. With respect, I do not believe the question to be whether one could have a threat in the future that was such as to deprive people of consent. Of course it could, but it should not be forgotten that quite a significant shift would be effected.
Before placing a persuasive burden of that kind on the defendant in relation to belief and consent, we must be sure that the circumstances included are those in which it is fair to conclude that consent was not present unless the defendant can prove, on the balance of probabilities, that he believed that the complainant consented.
We have been extremely careful to cover only actual or threatened violence immediately before the relevant act. The only exception to that is set out in subsection (4), which covers the situation in which there is a series of sexual acts, and the violence or threat occurs immediately before the first. In our view, threat and violence must be both realistic and immediate to justify
The amendments that have been tabled will create a rebuttable presumption in relation to threatened harm or violence at any time in the future, enabling a complainant to claim that he had submitted, for example, because the defendant had made an unrealistic violence against someone who could expect to seek protection from the police. When one deals with such rebuttable presumptions, one must be careful to analyse their effect and ensure that they are properly targeted. I say that without in any way seeking to detract from the powerful case made by the noble Baroness, Lady Noakes, for establishing how damaging such threats could be.
The threat of future violence is clearly a matter that the jury should be asked to consider, but they should be asked to do so in the normal way, taking into account matters such as whether there was a realistic expectation of the alleged threat being carried out and whether the complainant would have been able to take any steps to prevent the threat being realised. In short, juries might consider all the circumstances, as they are able to, as to what the effect of the threat might be. In my view, linking submission to the fear of violence at some unspecified time in the future is certainly not too distant or uncertain to found a conviction. However, it is too distant and uncertain to justify inclusion in the rebuttable presumptions list. It is an issue that needs to be tested by the jury in the normal way. Recognising the merit of the argument put in the general question, I do not think that it is appropriate to remove the word "immediate" from the list of rebuttable presumptions.
Amendment No. 391 would introduce into subsection (3) the situation where the complainant was in fear "of serious detriment to himself or another person". I appreciate that that would be in line with the proposal in Setting the Boundaries. However, we deliberately decided to exclude fear of serious detriment because we think that the term is too imprecise and would create uncertainty in the law. What might constitute serious detriment for one person might not be the same to somebody else. The question of whether the threat realistically could be carried out and whether the detriment could really be serious enough to justify submission would be wholly dependent upon all of the individual circumstances of each caseincluding subjective elements such as the age and mental capacity of the complainant. For example, the threat to kill a family pet would normally not be enough to persuade an adult to submit to a sexual assault, but it might have a devastating effect on certain adults, a child or a person with a mental disorder.
Similarly, the threatened loss of one's job could be extremely serious in some circumstances but not so serious in other circumstances, depending upon all of the facts. Again, I have no wish to underestimate the
Baroness Blatch: I add a slightly different dimension to the matter. The fear of the threat of violence may be immediate. It may be so material that it governs the activities of the complainant. The violence may not be immediate, but the threat and the fear of that violence could be immediate. My noble friends Lady Noakes and Lord Lucas had a point when they referred to "immediate". "Immediate", so far as subsection (3)(a) is concerned, means that the violence should be immediate. However, the fear of the threat of violence may well be immediate, but the actual violence could follow at another time.
Lord Falconer of Thoroton: The effect of the draft at the moment is that there would have to be violence used at the time that the offence was committed or that there was a threat of immediate violence; in other words, that the threat made was that violence would immediately be used. We do not wish to go beyond that so far as the rebuttable presumptions are concerned. Even a current fear that violence would be used at some unspecified time in the future, which I think is what the noble Baroness is implying, would not be good enough in the current draft. I have set out in detail why I do not think that that is enough. It plainly can be enough to found a conviction, but it should not be enough to give rise to a rebuttable presumption.
Lord Campbell of Alloway: As we are having an objective discussion on an extremely serious subject concerned with the due administration of the criminal law, I agree wholeheartedly with everything that the Minister said. His response was expressed in terms I might have sought to use myself, but much better. Many people who enter this domain have no concept of the conduct of a case, of the position of the defence, the prosecution or anything. They read many tracts that are sent by well meaning religious societies or this, that and the other organisation but with no practical experience of the courts. It is right that the Minister has put the matter straight.
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