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Earl Russell: My Lords, the noble Baroness, Lady Kennedy, made an extremely powerful and interesting speech. She is undoubtedly right that there is a balance here that needs to be redressed. Men are congenital optimists in these matters. Being congenital optimists, from time to time our congenital optimism needs to be restrained.

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A belief in consent may be based only on such optimism reached in a mood of unbounded wishful thinking. Therefore, one cannot have a test purely of abstract belief in consent. The Government are right. There is a balance that needs to be redressed. The question is whether the Government's attempt at redressing the balance is right.

Clause 1(3) of the Bill as it stands seems to set a hurdle that no one could successively get over. I doubt whether there is a perfect resolution. When looking at conviction rates, I do not need to tell the noble Baroness, Lady Kennedy, that this is in part a problem of culture as well as law and that changes must apply to both. When we look at the law, I think the amendment in the name of my noble friend Lord Thomas of Gresford, may not be perfect. However, in 10 years of thinking about the matter, I have not managed to produce a better one and so I shall vote for it.

Lord Alexander of Weedon: My Lords, in Committee, speaking as chairman of Justice, I indicated that I found this issue extremely difficult. So did our members, who were perhaps uncharacteristically divided as a law reform group as to the merits of the position put forward by the noble Lord, Lord Campbell of Alloway, and the noble and learned Lord, Lord Ackner, and the merits of the case so eloquently argued by the noble Baroness, Lady Kennedy of The Shaws. The position for which I speak is not a formulated, firm Justice position.

I have read the reports of the debates in committees over recent years. I believe that thought and sentiment have moved on since the timing of the admirable Heilbron report. As I understand it, an amelioration of the law which tilts the balance towards the protection of the legitimate and important rights of women has been accepted in some other jurisdictions, including Canada, without any allegations of notable unfairness. I have no wish to take up time in this debate because I agree—although I cannot express it as eloquently nor from the perception of the same sex—with the views expressed by the noble Baroness, Lady Kennedy. I also agree with every word spoken by the noble Earl, Lord Russell. In Committee I said that, while I found the original government drafting cumbersome, if an amendment along the lines tabled by the noble Lord, Lord Thomas of Gresford, were accepted, I would gladly support that. I hope that the House will move in that direction.

Lord Cooke of Thorndon: My Lords, I do not often trouble your Lordships, being constrained by the convention that one does not speak in your Lordships' House unless one knows something about the subject. But it chances that I have a certain degree of expertise in the matter of non-consensual sex. It leads me to a position in principle not far removed from that of the previous four speakers in the debate.

In New Zealand the legislation requires reasonable grounds for a defence of belief in consent to sexual violation. That change came into force in 1986. In the same year I became President of the Court of Appeal.

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However, the two events were apparently not connected. In the 10 years of my presidency, and since, the legislation has operated without much difficulty and to general public satisfaction. Comparatively few cases have reached the Court of Appeal and only a mere handful considered worth reporting in the Law Reports. There is no move towards a return to Morgan and no likelihood of one. The subject has become simply a non-issue.

The significance of this change cannot be separately identified. It was part of a series of reforms, largely promoted by women's organisations. Some of those already have their counterpart in the United Kingdom; for instance, the abolition of the rule of practice requiring the judge to warn the jury that it is dangerous to convict on the uncorroborated evidence of the complainant. Together, these various changes were followed in New Zealand by a surge in complaints, prosecutions and convictions. In 10 years the number of convictions for rape rose 180 per cent.

There is another reason why the introduction of an objective ingredient cannot be isolated as a catalyst. As the noble Baroness, Lady Kennedy, said, a defence accepting that the victim did not consent, but asserting a belief in consent, is very rare indeed. Commonly, the defence is that she did consent, though both counsel and judge will tell the jury that it is enough if the defendant believed so on reasonable grounds. The jury's task is thus simplified, while prosecution is encouraged. For those reasons, I am led to favour the introduction of a partly objective test here. Dramatic changes in the rate of a conviction, as distinct from the number of convictions, should perhaps not be expected.

In New Zealand more than 50 per cent of sexual violation complaints are either not established or are ultimately decided by the police not to be well-founded. Of those complaints that are ultimately prosecuted, only about 35 per cent result in guilty verdicts. As to the formulation of a partly objective test, I favour the amendments tabled by the noble and learned Lord, Lord Falconer. They are not over-complicated and by asking whether the accused could reasonably be expected to doubt whether the complainant consented, they focused on the particular accused and his characteristics.

Alternative formulae, such as a reasonable belief or a reasonably held belief, are less clear in that respect, as indeed is the New Zealand section which has led to High Court decisions that even intellectual impairment should be disregarded.

In New Zealand, when the reasonable grounds requirement was enacted, some professional voices were raised in opposition, invoking a purely subjective approach to mens rea, such as has been so skilfully urged before your Lordships by the noble and learned Lords, Lord Ackner and Lord Lloyd of Berwick, and others. But ultimately, the New Zealand Bill was

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passed without a Division—a circumstance which I mention as a happy fact, not necessarily as a prediction.

Lord Falconer of Thoroton: My Lords, I agree with the noble and learned Lord, Lord Lloyd of Berwick, that it would be unwise to allow the amendment for technical reasons. But I do not believe that it is right to debate it on the basis of the technicalities in relation to it. The amendment tabled by the noble Lord, Lord Campbell of Alloway, puts four square before the House one of the most critical changes that the Bill is introducing. As the noble and learned Lord, Lord Ackner, rightly said, the introduction of an objective element into the mens rea for rape affects a number of other clauses in the Bill. The amendment tabled by the noble Lord, Lord Campbell, therefore gives us another opportunity to debate that principle.

It was made clear at Second Reading and in Committee and I repeat that the Government are of the firm opinion that where the victim did not consent, but the defendant honestly believed that he or she did consent and if the prosecution can prove that that belief was unreasonable, then the defendant should be convicted of an offence.

We believe that that test is right in principle because it is currently unacceptable that an honest belief in consent, regardless of how unreasonable, can lead to an acquittal. We believe that it undermines the faith that victims are prepared to place in the justice system and we believe that it discourages them from bringing cases to court. If we remove the reasonableness tests then we will go back to the current position.

The unsatisfactory elements of the current position are, first, that it implicitly authorises the assumption of consent regardless of the views of the victim. Secondly, it is easy for the defendant to seek consent—the cost to him is very slight and the cost to the victim of forced sexual activity is very high indeed. We believe that it is not unfair to ask any person to take care to ensure that their partner is consenting and for them to be at risk of a prosecution if they do not do so.

Our position is simple. We can find no justice in leaving the law on consent as it is. One must remember that the issue applies when the victim has been raped and has been forced to have sexual activity without his or her consent, because the question of reasonable belief only arises when the act has occurred without his or her consent.

So we take the strong view that there should be an objective element in the matter. We do not believe that it is in any way unfair to require that the defendant should act reasonably in those circumstances. We believe that that is more just. I draw attention to the speech of the noble and learned Lord, Lord Cooke, not just because he supported the Government's amendment, but because he spoke with the experience of that or a similar provision being in force in New Zealand over a period of time. He supports the analysis that it would lead to more cases and more convictions and that it would not lead to miscarriages of justice.

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I am grateful to the noble Lord, Lord Campbell, for giving us an opportunity to debate the issue again, but I earnestly implore noble Lords to support the significant change that we are seeking to make by introducing objectiveness into the mens rea for rape.

4 p.m.

Lord Campbell of Alloway: My Lords, I am grateful to the Minister and to all noble Lords who have spoken in this debate. As to the technicality, I am leaving that aside because the whole sense of the House is against the principle of the amendment. It is a sheer waste of time to deal with a technicality. I agree with and was impressed by the noble and learned Lord, Lord Falconer, and with the speech of the noble and learned Lord, Lord Cooke. In that speech there was the first glimmer—and more than that, light—of a justification for altering the whole substratum of our present legal approach. The sense of the House is that we should do that: that we should do away with Morgan; that we should do away with the decision of the Appellate Committee in which the noble and learned Lord, Lord Bingham of Cornhill, gave the leading opinion; we should do away with the decision of the High Court of Justiciary in Scotland and start again; and—as I think the noble Baroness, Lady Kennedy, put it—we should seek some kind of thread to right what is wrong in the law. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 [Rape]:

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