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Sexual Offences Bill [HL]

Report received.

Lord Campbell of Alloway moved Amendment No. 1:

The provisions of this Act as concerns England and Wales shall not abrogate the jurisdiction of the judiciary to entertain the defence of honest but mistaken belief as to consent as judicially established, and to ensure that an accused who had no guilty mind should not be convicted."

The noble Lord said: My Lords, I am grateful to the noble and learned Lord, Lord Ackner, for his support. We were on the western circuit together after the war, conducting at times this very sort of case on assize or

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a Court of Session long before the defence asserted by the amendment had been established by the Appellate Committee of this House in 1975.

I am particularly fortified by the presence of the noble and learned Lord, Lord Lloyd of Berwick, who spoke with authority on Second Reading and in Committee when there was a substantial division of opinion. On this matter, one defers—at least I do—to the expertise of noble and learned Lords and to the common sense of this House as to fair play.

If the amendment were to commend itself, it would slight the structure of seven clauses of the Bill. It would conflict with the amendments to Clauses 1, 3, 5 and 7, as implemented by Clauses 77 to 79, tabled by the noble and learned Lord, Lord Falconer of Thoroton, and others. Your Lordships may consider it appropriate at all events that the amendment be debated in principle at the outset to save the tedium of repetition and to try to clear the day.

As to when this conflict of principle, for that is what it is, will be resolved, one defers to the sense of this House. The fundamental objection to the abolition of the defence of honest belief as to consent has not been removed by any of the amendments—especially those tabled by the noble and learned Lord, Lord Falconer of Thoroton.

Those amendments substitute an abstract reasonable expectation of doubt for the actual guilty intent of the accused. The decisions of the Appellate Committee of your Lordships' House established and applied this defence, which will be considered later, but only as to substance. Those decisions reflected our indigenous concepts of the due and fair administration of justice with which all your Lordships are familiar, as applied throughout the United Kingdom.

It is said that this defence, judicially established at the highest, has to be set aside to bolster up convictions only in England and Wales. On objective examination, no case has yet been made for the abolition of this defence. There are causes for the low conviction rate, which have been spoken to by the noble Baroness, Lady Mallalieu, the noble and learned Lord, Lord Ackner, and others, whose speeches in Committee have not been called in question. Apart from enhancing the risk of erroneous convictions, tinkering with the presumption of innocence and tampering with juries as arbiters of the actual guilty intent of the accused, abolition is not justified. It would constitute an unwarranted trespass of the executive on the functions of the judiciary over which this House stands as sole guardian.

The common sense, simple, straightforward question to be resolved by your Lordships is the justification for the abolition of that defence. It may not be pre-empted as a matter of convenience to enable the Government to have their business, or to even up the odds on the rails at the "tough on crime" selling plate. Your Lordships may either support or reject clauses and amendments whose effect will abolish this defence.

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As to the causes of the low conviction rate, I refer in particular to the failure of the Crown Prosecution Service to instruct counsel with appropriate experience to advise on the prospects of success before settling the indictment. There is a failure to advise on evidence or to have the conduct of the case in court as was once the practice, as most noble Lords will remember from their younger days. Now a case goes to trial on a sort of in-house assessment as to whether it is credible lest criticism for an action engenders unwelcome publicity.

As to the salient issues, why was this defence judicially established? How has it been judicially applied? Why should it be abolished? Are the consequences of abolition acceptable? Should the scales be weighted against acquittal in favour of conviction—the collateral damage of unintended consequence? Have the Government made out a case?

As to the first question, the defence, as explained by the noble and learned Lord, Lord Lloyd of Berwick, was established in 1975 by the Appellate Committee to seek to ensure that the accused who had no guilty mind should not be convicted. It was applied by another decision of the Appellate Committee in 1999 on indecent assault in which the noble and learned Lord, Lord Bingham of Cornhill, gave the leading opinion. It was decided unanimously that belief, if honest, did not have to be reasonable, albeit unreasonableness would cast doubt on whether the belief was genuine.

In February this year, the High Court of Justiciary in Scotland decided that this defence was separate and distinct, and to be put to the jury as such: the Crown has to satisfy the jury beyond reasonable doubt either that the belief was not genuine or that there was no such belief.

Why should those decisions be set aside? Is not the burden on the Government to justify setting aside by some reasoned argument?

As to the consequences of abolition, Clauses 1, 3, 5 and 7, whether or not they are amended as proposed, remove the presumption of innocence and, as implemented by Clauses 77 to 79, shift the burden of proof to the defence to show that in all the circumstances the accused could not by an abstract standard of reasonableness have been expected to have a doubt as to consent. Even if he honestly believed that there was consent, the jury may not acquit in such a case. That is a complex direction to be given to the jury that sets aside the decisions of the Appellate Committee in your Lordships' House and the High Court of Justiciary—a complexity of direction, compounded with compulsory presumptions of non-consent. Again, is this not but a Setting the Boundaries placebo beyond the reach of justice as administered generally throughout the kingdoms? Is the reason given for that wholly exceptional proposal justifiable?

As to the collateral damage of unintended consequences, that could well have been foreseen, but I do not suggest that it was. It is the enhancement of the risk of erroneous conviction, spoken to by the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Campbell-Savours, on Second Reading and in Committee. I am delighted to see that they are both in their places.

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Since then, there has been the Catlin case referred to in The Times of 11th April in which, after seven years' imprisonment, conviction for rape on a false accusation was quashed because the Crown Prosecution Service had failed to disclose evidence that could have cleared the accused. Who are the true victims of a rape trial: those whose evidence is not accepted by the jury or those erroneously convicted of false accusations, whose lives and livelihood are destroyed?

Have the Government made out their case? I believe that I may have spoken for some noble Lords on all sides of the House, lest even-handed justice be slighted by inhibiting the defence to secure more convictions. I beg to move.

3.15 p.m.

Lord Ackner: My Lords, I support the amendment. I put my name down to do so because it seems to me to isolate the very issue that runs through so many clauses and has produced so many varying amendments. It seeks to establish in clear terms between the two contests—should a defendant only be convicted if he realised that there was no consent; or should he be convicted if he made a mistake about that and should not have made that mistake? The matter has frequently been considered, but it arose from the Morgan case.

I shall make only a brief reference to the career of the Morgan case. After the decision, which required the proof of the guilty mind of the accused—that he did not honestly believe, a subjective test—a committee was set up especially to consider the validity of that decision because of some public outcry against it. That committee, the Heilbron committee, considered the matter in great detail and concluded that the law as adumbrated was sound. It was thereafter re-enacted, but with the additional proposition that the jury should take into account in considering the validity of the honest belief all matters that related to the reasonableness of what had happened.

That has now remained in existence for several decades without challenge. The Law Commission was invited to consider the matter some time ago. Properly, the Law Commission said that the choice between whether the test should be a subjective one—the guilty mind of the accused—or an objective one—what a reasonable person would consider appropriate—was essentially a matter of policy, having set out the arguments pro and con. It stated:

    "The law, as stated . . . accords with the principles upon which criminal liability for serious crimes has habitually been fixed in England and Wales ('the Golden Thread').

    "Where it is sought to derogate from this principle and to seek to establish criminal liability for rape on some or other degree of negligence, our view, as a principle of law reform, is that it must be demonstrated by the proponents of such a departure that it is necessary to remove a serious shortcoming in the way the law is applied in the courts.

    "There is no such evidence. Accordingly, on that ground, we do not support that proposed change".

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That is strong stuff. It was saying: if you are going to depart from established principle, you must be able to justify that. You cannot justify it by protest or pressure groups, however well-meaning; you must have the material.

The arguments against altering were set out by the Law Commission with commendable succinctness. It stated:

    "(1) A person should not be guilty of a serious criminal offence on the basis of strict liability or on the basis of negligence. Liability at this level of seriousness should be based only on intent on recklessness.

    "(2) The burden is on those who argue for a change to an objective basis to demonstrate that persons are being inappropriately acquitted by running a bogus 'unreasonable belief' defence. No such evidence has been produced. It appears that Morgan is not, in practice, a problem.

    "(3) If the availability of the defence is based upon 'reasonableness', then whose reasonableness is being applied? Is it that of the defendant, the members of the jury, the person on the Clapham omnibus? The concept of 'reasonableness' has been a source of endless, and continuing, difficulty in relation to provocation in homicide . . . Any proposal to reform the law should not be lightly made which carries the risk of making it more complex and unpredictable.

    "(4) This difficulty would be even more pronounced if, instead of a test of reasonableness, the test were to be akin to 'gross negligence', as a further level of complexity would be involved.

    "(5) A modern jury, properly directed on the question whether the person did or did not have such a belief, will be well able to root out the true from the bogus defence of belief in consent. Anyway, it is seldom, if ever, that a defendant would put forward a defence that he had such a belief for which he acknowledged there were no reasonable grounds.

    "(6) The rate of conviction for rape is . . . alarmingly low. Juries appear already to be uncomfortable in convicting men of a very serious offence in circumstances which appear to them to be ambiguous. If there were a rule of law that, however honest a belief, the jury had no option but to convict in the absence of reasonable grounds for it, a perception of unfairness might arise, which might result in fewer convictions than were the jury left themselves to judge whether an assertion of belief is genuine or just a fanciful story unworthy of belief".

On the first day in Committee, I sought to summarise the reasons why the conviction rate was low. I do not wish to go through all of those reasons again—noble Lords can read them in Hansard. They include the fact that the prosecution some time ago was penny-pinching and paid less to prosecuting counsel than was paid, under legal aid, to defence counsel, with the result that counsel rejected the prosecution briefs. My arguments varied from that to ill- preparation, to the absence of the need in practice to find some corroborative evidence, to bogus allegations for one reason or another and, lastly, to the law of unintended consequences. That involved the argument that in order to assist vulnerable witnesses it has been made permissible merely to read their statements, so the jury has no chance to see and evaluate the credit-worthiness of the complainant although it has the defendant's sworn evidence.

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In a sentence—

3.30 p.m.

Lord Campbell-Savours: My Lords, I am sorry to interrupt the noble and learned Lord but he has missed one very good reason that he gave in his contributions at Second Reading and in Committee. It was that the attitude of the jury to a penalty when it knew that if it was to convict on what it viewed as a lesser offence it would not be prepared to see a maximum penalty imposed.

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