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The Deputy Speaker (Lord Carter): My Lords, before calling Amendment No. 2, I must inform the House that if that amendment is agreed to, I cannot call Amendments Nos. 3 to 9.

Lord Thomas of Gresford moved Amendment No. 2:

"(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis;
(b) B does not consent; and
(c) A does not reasonably believe that B consents.
(2) Sections 77 and 78 apply to an offence under this section."

The noble Lord said: My Lords, in this group of amendments I am concerned with simplicity, but more properly with the fair trial that a defendant has to face. I am concerned with the reverse onus of proof that exists in the presumptions that are set out in Clauses 77 and 78. I note that another practitioner, the noble Baroness, Lady Kennedy of The Shaws, indicated that she was against reverse onuses of proof.

I start with the basic statement of principle made by Viscount Sankey, the Lord Chancellor in the well known case of Woolmington:

    "Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt . . . subject to any statutory exception."

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The importance of the presumption of innocence was set out by Mr. Justice Sachs, whom some of us had the privilege to meet recently in this House, sitting in the South African constitutional court in the State v Coetzee in 1997. His statement of principle has been quoted with approval by the noble and learned Lords, Lord Bingham and Lord Steyn, in recent House of Lords cases. He said:

    "There is a paradox at the heart of all criminal procedure, in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important the constitutional protections of the accused become. The starting point of any balancing inquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences massively outweighs the public interest in ensuring that a particular criminal is brought to book...Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system."

That last sentence of maintaining public confidence is a theme that I have played many times before your Lordships in connection with much legislation that has passed through this House.

There are three essential elements sought in the offence of rape—penetration by the defendant, lack of consent by the complainant and lack of reasonable belief in consent by the defendant. Those three elements are stated simply in Amendment No. 2. That is how I have set out how the offence should be defined. I also say that Clauses 77 and 78 should apply, but I shall come to that in due course.

In stranger rape, generally the issue is whether penetration took place and, if so, whether it was by the defendant. It is frequently an identity issue. In marital or acquaintance rape, generally the issue is consent or, in the alternative, belief by the defendant in consent. That was the way that the noble and learned Lord, Lord Cooke, expressed the matter a moment ago, and the noble Baroness, Lady Kennedy, said much the same. Regarding reasonable belief, we agree with the Government that it can be no defence for the defendant to say that he gave no thought as to whether the complainant consented. That is the purpose of Amendment No. 175 tabled in my name and that of my noble friend Lady Walmsley to replace Clause 77 simply to make that statement.

We have had that debate on reasonable or unreasonable belief already and I do not propose to say any more about that.

However, we part company with the Government on where the burden of proof on the third essential element of the offence should lie; that is, lack of reasonable belief in consent by the defendant, the rebuttable presumption set out in Clause 77 as presently drafted and the conclusive presumptions in Clause 78.

To make the defendant disprove a lack of reasonable belief in consent in the arbitrarily chosen circumstances set out in Clause 77—a number of circumstances are set out there but by no means all that could possibly arise in a rape case—we say is a fundamental derogation from the presumption of innocence. To presume conclusively that in other

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circumstances and in particular deception or impersonation, two of the three essential elements of the offence of rape are automatically proved—that is, both the complainant's lack of consent and the defendant's lack of belief in it—is, we say, a violation of the presumption of innocence.

When one comes to that position, that the presumption of innocence is attacked both by the rebuttable and the conclusive presumptions set out in the Government's Bill, we then have to consider whether such presumptions are compatible with a fair trial under the provisions of Article 6(2) of the European Convention on Human Rights. On that topic, the European Court in Salabiaku v France in 1988 stated:

    "Presumptions of fact or law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the contracting states to remain within certain limits in this respect as regards criminal law. . . .

    Article 6(2) does not regard presumptions of fact or law provided in the criminal law with indifference. It requires states to confine them within reasonable limits which take into account the importance of what is at stake and maintains the rights of the defence".

So, where there are presumptions of law or fact, the convention is not silent about it and does not view it with indifference.

The noble and learned Lord, Lord Steyn, in the case of Lambert in 2002 quoted that passage and added:

    "This test is dependent upon the circumstances of the individual case. It follows that a legislative interference with the presumption of innocence requires justification and must not be greater than necessary".

Similarly, the noble and learned Lord, Lord Hope, in the Kebilene case in 2000 stated:

    "as a matter of general principle, a fair balance must be struck between the demands of the general interest of the community and the protection of the fundamental rights of the individual".

In summary, a derogation from, or what I would call a violation of, the presumption of innocence will satisfy the constitutional protections of an accused person only if it can be shown to be necessary, justified and proportionate.

Shortly after the convention became part of our law through the Human Rights Act, the Anti-terrorism, Crime and Security Act 2001 was passed, which included an offence of possession of nuclear weapons. One might think that that is a fairly serious offence but the statute, bearing in mind what had been said in Kebilene, was drafted in this way:

    "(1) In proceedings for an offence . . . relating to an object it is a defence for the accused to show that he did not know and had no reason to believe that the object was a nuclear weapon.

    (2) But he shall be taken to have shown that fact if—

    (a) sufficient evidence is adduced to raise an issue with respect to it; and,

    (b) the contrary is not proved by the prosecution beyond reasonable doubt".

In the anti-terrorism Act an evidential burden was passed to the defendant to raise the possibility on the evidence that he did not know and had no reason to believe that the object he possessed was a nuclear weapon. But even with something as serious as that the

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legislation provided that it was for the prosecution to continue to have the persuasive burden of establishing beyond reasonable doubt that he did have that possession with knowledge of the fact.

Here, as regards the first element, it is not necessary to have a reverse onus of proof. In the circumstances postulated in Clause 77(2)(a) to (e) and even more so in Clause 78—for example, circumstances where violence is used; where the complainant is asleep, or where there is deception and so forth—the jury will have no difficulty whatever in determining the defendant's belief and whether it is reasonable, just as juries daily up and down this country determine intent, dishonesty and other states of mind.

So, we say that it is not necessary to reverse the onus of proof. If a man uses violence against a woman, it is not difficult to show that he had no reasonable belief that she consented. He raises the issue, it can be destroyed by the prosecution and it does not necessarily require a great deal of effort to do that by cross-examination or whatever.

We also say that it is not justified—the second of the three tests—because, unlike the relatively few instances in serious crime where the persuasive burden is on the defendant in relation to an essential element of the offence, there is nothing peculiarly within the defendant's knowledge in a rape case as opposed, for example, to a case involving accounting systems or fraud, which the prosecution would have any difficulty in disproving. Even if there were, a reverse evidential burden could be justified only with the onus of proving guilt ultimately remaining on the prosecution.

In the recent case of Carass in 2002 the Court of Appeal stated:

    "the proper approach has to be that if a reverse burden is to be imposed on an accused it must be justified and in particular it must be demonstrated why a legal or persuasive rather than an evidential burden is necessary".

For it to pass the tests of Article 6(2) of a fair trial it has to be shown why a legal or persuasive burden rather than an evidential burden is necessary.

Finally, these reverse onuses of proof are not proportionate. All the sex offences in question carry heavy sentences up to life imprisonment. We consider that it would be quite wrong for a jury to convict if there were a doubt about the third essential element, reasonable belief in consent. If, as regards the third essential element, the burden is placed on the defendant who has to satisfy it on a balance of probabilities, the jury could find against him but yet retain up to 49 per cent of a doubt about his guilt. Lord Justice Waller stated in the case of Carass, to which I have referred,

    "With an evidential burden it will be for the defendant to produce some evidence that any concealment established against him was not with the intention to defraud".

That was a fraud case.

    "Common sense dictates that if concealment is proved the evidential burden will be quite a difficult burden for the defendant to surmount. If however he were to surmount it, then it would be less than satisfactory if he could still be convicted if the jury were not sure that he had intended to defraud".

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How much less satisfactory is it in the crime of rape punishable with life imprisonment that juries would find themselves obliged to find a person guilty while there was still a doubt in their minds? Lord Justice Clarke in Sheldrake, another recent case, stated:

    "Since the inherent danger of the reverse burden technique is that an innocent accused may fail on the balance of probabilities to establish his innocence, the consequences of failure are relevant".

The amount of punishment that is likely to arise is a relevant matter in considering whether a reverse onus is necessary, justified and proportionate.

I invite your Lordships to consider the amendments in that light. I have attempted to define the offence simply, with the three necessary elements. New Clause 77 states that belief should not be satisfied by a person not having given any thought to the matter. Amendments relating to Clause 78 set out the circumstances that a jury ought to bear in mind when it comes to its conclusion as to whether the prosecution has proved the third element of a reasonable belief.

The matters that I have set out in amendments to Clause 78 are taken straight from the elements that the Government want to make the subject of a rebuttable or conclusive presumption. We say that is not the right way of going about it. The jury should simply be reminded of all the circumstances, including—to take a point made by the noble and learned Lord, Lord Cooke—that the characteristics of the particular defendant should be considered.

In light of that, I am convinced that a defendant would have a fair trial but that the public interest would be properly served in ensuring that the guilty are convicted and that those who are not guilty are acquitted. I beg to move.

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