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Lord Ackner: Yes, my Lords, I pointed out that the defendant, having given his evidence in a seemingly sensible way, is supported at the back of the court by a wife weeping and two young children. The jury knows, because it has been hammered home so hard, that rape is a terribly serious case and that the starting rate is five years or thereabouts. I have no doubt that some will say that that is too long. They may be quite wrong, but that may be their sense. In all the circumstances, when the onus of proof is so high, the jury must be satisfied that it is sure. It is very easy for it to say, "We are not sure", and thus acquit.

For the reasons that I have set out, I strongly support the amendment.

Lord Lloyd of Berwick: My Lords, I regret to say that on this occasion I find it impossible to support the amendment of the noble Lord, Lord Campbell of Alloway, not for any want of good will—I have masses of good will—but for technical reasons. If Clause 1 is amended by leaving out subsection (3), which is the purpose of the next amendment of the noble Lord, Lord Campbell—Amendment No. 4—his new clause would simply be unnecessary. However, if Clause 1(3) remains as it is or is amended—that is proposed by the noble Lord, Lord Thomas of Gresford, and now by the Minister—the new clause would be wholly contradictory to what would then be subsection (3). To have contradictory provisions of that kind in the same piece of legislation would be a recipe for disaster. It is surely better first to see what view we will take of Amendment No. 2, which is the amendment of the noble Lord, Lord Thomas of Gresford, and Amendment No. 6, which is the Minister's amendment, before we make any further progress on this amendment.

Lord Thomas of Gresford: My Lords, the clause as drafted by the Government retains a subjective element. It is a defence that one had an honest and mistaken belief in consent, but to that is added the objective consideration that that belief be reasonable. We believe with the Government that a defendant should no longer even in theory be able to rely on an unreasonable belief. A balance must be struck between the interests of the complainant, who has suffered penetration without his or her consent—the first two elements of the offence of rape—and the interests of the perpetrator with regard to the third element; that is, his belief, or lack of belief, in the complainant's consent.

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On these Benches, we consider that it is unacceptable that a defendant should rely on a belief that is unreasonable and that he should be allowed to say, "I have an honest but mistaken and, I now recognise, entirely daft belief that the lady in question consented". She remains raped. It is wrong that he should walk away because of an unreasonable belief. However, we believe that it is for the jury to consider the reasonableness of his belief, having regard not to some hypothetical anthropormorphised reasonable man—the man on the Clapham omnibus—but to the reasonable conduct of the defendant and to all the surrounding circumstances of the actual offence. We believe that it is perfectly possible for a jury to come to sensible conclusions about what is or is not a reasonable belief.

I draw a parallel with the fact that the defence of reasonable self-defence is very well known. I have no doubt that Mr Tony Martin had an honest but mistaken belief that he was defending himself when he shot an intruder in the back. He thought then and, according to the press, still thinks today that he acted reasonably. A number of people in this country appear to agree with him. However, a jury objectively said that that was unreasonable. It was perfectly capable of coming to that conclusion, and we believe that juries are perfectly capable of coming to a conclusion as to whether an honest but mistaken belief is reasonable or not. We oppose the amendment.

Baroness Kennedy of The Shaws: My Lords, I support what the noble Lord, Lord Thomas of Gresford, said. The issue is not, as the noble and learned Lord, Lord Ackner, described it, simply the Government's response to lobbying by interest groups. It is about the interests of women who at times believe that the law has not reflected their world view. Happily, over the past 10 years there has been a recognition of the ways in which the law has failed women because it was essentially created from a male perspective. There are certain areas of the law that show us that in a very pronounced way. One of those areas relates to domestic violence and the other relates to rape. That is the reason; it involves more than simply a response to lobbying groups. It involves any group, whether women in church groups, women and students, black women or white women. Women up and down the country feel failed by the rape laws as they stand.

The Government are seeking to find a way of gaining the confidence of half of the public that the law can work for them. When a man claims that he has a belief, that it might have been unreasonable but that it was honest, women up and down the country find that unacceptable, and we must listen to them. We seem to be seeking a thread which in some ways will exclude their world view.

As a practitioner, I know—it has been stated in previous debates—that the Morgan defence is rarely used. I, like others, have never heard anyone in the courtroom say, "She was saying no. She was screaming her head off. She was fighting and beating me, but I

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thought she liked it that way and so I proceeded to have sexual intercourse with her." That is not what is said.

Juries faced with a man saying "I didn't force her to have sexual intercourse" and a woman saying "Yes, he did" listen to the judge, who invariably directs the jury on Morgan even if it has not been raised.

The judge says to the jury, "Members of the jury, if this man honestly believes she was consenting, then he has a defence". It is that formula in the judge's summing up which leaves juries saying, "Even though he is not saying it, maybe he did honestly believe it although she was saying no". Therefore, on the balance between the two, they use it to acquit men who are clearly guilty of the alleged offence.

I found extraordinary, although I do not count this against him, that the noble Viscount, Lord Bledisloe, should have chosen an unfortunate but telling example from which to draw the principle. He said:

    "If I am accused of stealing your property, it is a defence if I show an honest belief that I had a claim of right to that property. That is the general test of the criminal law". [Official Report, 31/3/03; col. 1069.]

And, of course, it is the general test of the criminal law. But what is extraordinary is applying a principle that relates to property to our personal and intimate relationships as human beings. I think we can look for other kinds of principle.

The question is whether the protection of human beings, not property, from a profoundly damaging experience might justify higher expectations in human behaviour and greater care and respect for the humanity of others. We are really talking about human rights. Human rights are not just about things that happen in the third world; they are about our relationships with each other.

Is the principle drawing on the experience of women as well as men? I am glad that the noble and learned Lord, Lord Lloyd of Berwick, one of our most eminent, retired judges, is here today. Speaking about rape, the noble and learned Lord sensitively enunciated its kernel when he said that,

    "forcible penetration of the vagina is a corruption of the deepest and tenderest of emotions of which human beings are capable". [Official Report, 31/3/03; col. 1051.]

I am sure homosexuals do not feel any differently, even if their form of intimacy is different.

Forcing intercourse upon someone and securing their engagement in sexual activity through fear is a corruption of love-making. Although sometimes people may do it casually and sometimes without profound emotions attached to it, love-making remains for most of us an expression of our most profound emotions.

That is why sexual offences are so lasting in the damage they do to life. They contaminate what is precious. That is why sexual offences are different from property offences and why, when we have offences involving an abuse of intimacy and our most intimate and precious feelings, we may look for ways of dealing with them that may be different.

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That does not mean reversing burdens of proof. As noble Lords know, I feel strongly committed to the civil liberties of defendants in the courts. I do not want to see any reneging from the civil liberties that protect defendants accused of serious crimes. I do not want to see the reversing of burdens of proof or any undermining of the standard of proof in criminal cases. I do not want to see accused people having to prove they are innocent. But we should be prohibiting people from being negligent in their disregard for others when it comes to intimate abuse. If human rights mean anything, then we are walking on the terrain of human rights here. That is why this is important; it is not an issue to be left to lawyering or to the technocrat in the legal world. We are seeking to do something about what is wrong in the law. The fact that so few cases ever lead to conviction would mean that between 93 and 97 per cent of women were making this up. Of course that is not so. We know that men walk free having abused women and children. No doubt it happens in homosexual relationships too.

The reason for trying to make things better is that the law, as it is, is failing. I urge everyone to recognise the effort being made by the Government to put it right.

3.45 p.m.

Baroness Noakes: My Lords, it may help the House if I make clear the position of these Benches. In doing so I pay tribute to my noble friend Lord Campbell of Alloway for his tireless work on this Bill and the dedication he has shown in drafting amendments. However, we cannot support his amendment.

From the outset, we have been open to the possibility that the formulation of the existing law of rape should be changed to one involving reasonableness. Our caveats have been that any change has to be workable and effective. That is what many of our debates have centred upon.

My noble friend's amendment is an attempt to keep the law as it is. That is not something we find attractive. We think that the conviction rate for rape is such a serious issue that we should look to change the law. I was interested to hear the noble Baroness, Lady Kennedy, supporting that position.

We will be looking again at the Government's newest attempt in Clause 1(3) to deal with reasonableness, and at the version of the noble Lord, Lord Thomas of Gresford. We can debate the issues and detail at that point. We believe this House would spend its time better by finding an effective way towards a good reasonableness test than by trying to keep the law as it is.

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