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Baroness Noakes: My Lords, I shall speak to Amendments Nos. 7, 8, 19, 20, 29, 30, 38 and 39 in my name and that of my noble friend Lord Astor of Hever.

We on these Benches share with Government and Liberal Democrat members a desire to produce a formulation for sexual offences that works and contains a reasonableness test that works. The Government listened to the concerns expressed on Second Reading and in Committee and have tried to respond. The noble and learned Lord the Minister will speak to Amendment No. 6 and others in due course. We welcome that the Government have thought again. We particularly welcome that they have moved away from the concept of the hypothetical reasonable person to reasonableness in relation to the defendant.

We have concerns, however, about amended Clause 1(3), which would abandon the formulation of the offence of rape in terms of belief and consent in favour of one based on doubt about consent. I can see the logic, but is it simple enough?

In contrast, the amendments tabled by the noble Lord, Lord Thomas of Gresford—to whom I pay tribute for working extremely hard on producing amendments for Committee and Report stages,

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despite his many other commitments—are much simpler and more traditional. The conservative in me values the link to tradition.

Amendments Nos. 7 and 8 seek to insert "sharing the characteristics of A" into the existing formulation for reasonableness. For example, if A had severe learning difficulties, the test would be formulated by reference to A. The Government's new formulation refers to all the circumstances being taken into account. If that were adopted, I would want to add "including the characteristics of A".

The Minister knows of my concerns and I would be pleased to hear how he can be sure that his formulation would require the defendant's extreme learning difficulties or youth to be taken into account. In Committee, the noble Viscount, Lord Bledisloe— who I am pleased to see in his place—said that "circumstances" meant surrounding facts, not the individual's particular characteristics. Does the Minister believe that the wording of the Government amendment is absolutely clear? Amendment No. 178 in the name of the noble Lord, Lord Thomas, explicitly refers to the characteristics of the defendant.

A final concern is the role of presumptions in Clauses 77 and 78, to which a later group of amendments refers. We fully support the comments of the noble Lord, Lord Thomas, in that regard.

We want the law on rape and other sexual offences to be workable and effective, which is how we shall judge the amendments before us. The noble Lord, Lord Thomas, made a powerful case for his amendments. I look forward to the Minister's reply.

4.30 p.m.

Lord Lloyd of Berwick: My Lords, I regret that I cannot support the amendments in the name of the noble Lord, Lord Thomas of Gresford. I shall speak also to Government Amendment No. 6, the amendments to which the noble Baroness, Lady Noakes, spoke, and my Amendment No. 17 to omit Clause 3(3).

Clauses 1 to 15 are a huge improvement on the law as it is at the moment. They set things out clearly and well and will be widely welcomed by the judiciary and those who practice in the criminal courts. I wish that I could say the same about Clause 1(3) but I cannot.

As recently as 2000, the Law Commission—after an exhaustive and lengthy inquiry—recommended that the definition of rape should remain as it is. The noble and learned Lord, Lord Ackner, has already read the relevant passage to your Lordships. Even more recently, the Home Office steering group was against introducing any objective element into the law of rape. In light of that recommendation, one looks for some satisfactory explanation as to why that recommendation has not been accepted. One can find none.

This may be a good moment to stand back and remind ourselves of the existing law. One can do that best by taking Clause 1(2) and reading in a few words at the end. It states:

    "This subsection applies if A does not believe that B consents (whether because he knows that B does not consent, gives no thought to whether B consents, or otherwise)".

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    "In deciding"—

this is existing law—

    "whether A does not so believe, the jury shall have regard to all the circumstances of the case and in particular to the presence or absence of reasonable grounds for such belief".

Having read that to your Lordships, I am inclined to ask what is wrong with it? What more could one want? If there are no reasonable grounds for the belief, the jury will reject the defendant's evidence and convict. If there are reasonable grounds for the belief, the jury will very probably acquit—but obviously depending on the impression that the evidence of both sides has left.

Why is a change needed at all? Does not the existing law in practice give the Minister everything that he wants with regard to the requirement for reasonableness? It is there in the Sexual Offences (Amendment) Act 1976.

Perhaps I may deal in advance with two of the arguments the Minister will no doubt put forward in reply. The first is that the defendant should not get off by asserting an honest belief in the lady's consent however unreasonable. One hears that argument over and again. It was used by the Minister in the letter he was good enough to write to me after the Second Reading debate. He said:

    "We believe that the test is right in principle because it aims to correct the situation in the law at present whereby an honest belief in consent is sufficient to negate the mens rea of the offence, regardless of how unreasonable the actions of the defendant might have been".

That first argument is, I submit, misconceived. None of the judges who spoke in Committee had ever heard of such a case in practice. I am sure noble Lords who were present will remember the remarkable speeches of the noble and learned Lords from north of the Border, Lord McCluskey, and Lord Cameron. They regarded as outlandish the suggestion that such a case could arise. All the English judges with experience of applying this part of the criminal law were of the same view. What can one put against all that practical experience? What is put against it is nothing but a theoretical objection expressed in a rather tendentious way.

The second argument is this. It is said that we need to change the law because defendants who are in truth guilty must be getting off because of the low conviction rate. That needs to be examined in stages. One has often read, or heard it said, that there must be something wrong with a conviction rate for rape as low as 7 per cent. But that again is a complete misconception. Seven per cent is not the conviction rate. In the course of his reply, the Minister gave the conviction rate as 45 per cent, subsequently correcting it to 41 per cent. Many people may have found that surprising, and much higher than they had been led to expect. But if that figure is correct—I have no reason to doubt it—is it all that surprising?

In considering the offence of rape, it is helpful to refer to the crime of murder. Between 1991 and 2001 the number of those tried for murder varied each year between 557 and 661, a very narrow margin, as it

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always is. The number of those convicted of murder varied between 197 and 277, another very narrow margin. If one adds the figures for those eleven years and applies one to the other, one will find a conviction rate of 40 per cent—1 per cent less than the rate of conviction for rape.

The Minister will undoubtedly say, and others with knowledge of the criminal law will know, that many of those acquitted of murder will have been convicted of the lesser crime, manslaughter, on the ground of either provocation or diminished responsibility. If he were to say that, of course, he would be right. However, in the case of murder no one argues that there must be something wrong with the law because only 40 per cent of those tried are convicted of murder. So why is it so different in the case of rape? Why do we have this impression that somehow the conviction rate for rape is too low? The answer is, I think, because in the case of rape there are powerful and vocal pressure groups at work. The noble Baroness, Lady Kennedy, referred to them in her wonderful speech. No one doubts that they are doing the job they feel they must do. The truth is that these powerful groups influence the press; the press influence public opinion; and public opinion influences the main political parties far beyond what is justified.

I have in mind a very short and pertinent speech made in Committee by the noble Baroness, Lady Carnegy of Lour. Without her permission—I wish she were present—I read one sentence:

    "However, I want to remind the Government that, in their laudable intent to assist women who are raped and whose assailant is not convicted, they may not be meeting what the public want in the way they want it. In my experience, which is mostly local, there is a world of difference between the reaction of ordinary members of the public to rape trials and rape accusations and the reaction of the groups who exist to stand up and speak for women".—[Official Report, 31/03/03; col. 1084.]

The noble Baroness went on to say that she thought that the Government were misguided in their approach to the question, and altogether barking up the wrong tree. I suggest that there is a great deal in what the noble Baroness said. I entirely agree with it. I fear that the same is as true of the Conservative and Liberal parties as it is of the Government.

The trouble with pressure groups is always that the more vocal and powerful they are, the more likely they are to distort sound judgment. The burden of resisting what seems to me to be unnecessary changes in the law falls on the Cross Benches who have little power but at least no political axe to grind.

Let us suppose that I am wrong about all that. Let us suppose that the conviction rate for rape is lower than for other comparable offences. Is that not exactly what one would expect? I suggest that that is so for two reasons. First, there is evidence, admittedly anecdotal, that in rape cases the Crown Prosecution Service does not always apply the 51 per cent guideline the Attorney-General says that it should. That would explain why the conviction rate for rape may be less than 50 per cent.

Secondly, in cases of other crimes where the conviction rate is or may be higher, there is almost always some other evidence to support the prosecution

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case whereas in many, if not most, rape cases there is not. It is word against word with nothing else for the jury to go on. Therefore, one can well understand why a jury in those circumstances, with convincing evidence on both sides, will give the benefit of the doubt to the defendant. That is exactly what they should do and what judges always tell them to do; it is their duty. I suggest that it is not in the least surprising to find that the conviction rate is 41 per cent. Indeed, that is just what one would expect, and no ground for changing the law.

However, let us suppose that for political reasons the Government are determined to increase the number of rape convictions. There are two ways in which they can do so. They could either make rape a crime of strict liability—in other words, it would be enough to prove that the woman is not consenting—or they could say that the jury need not be convinced beyond reasonable doubt but that proof on the balance of probability would be enough. Neither of those solutions would be remotely acceptable to any Member of this House but at least they would work.

What have the Government proposed in its stead? They propose the creation—it is nothing short of a creation—of a brand new crime of rape, not dependent on knowledge, recklessness, or the guilty state of mind, but on negligence; not even gross negligence as in the case of manslaughter but ordinary negligence—not taking steps which could reasonably be expected in all the circumstances—as if the victim were claiming damages for tort. I suggest that it is totally unacceptable to have a crime of rape by negligence, where the crime carries a sentence of life imprisonment. It would not work. It would not result in one further conviction: it would merely result in more appeals.

Let us suppose that the Government are determined to create this new offence of rape by negligence, alongside the existing offence of rape. What do they do? They lump both offences together in the same clause, with the same maximum sentence of life imprisonment. That is nothing short of dotty. It must surely be obvious that rape by negligence under subsection (3) is a much less serious offence than rape when the defendant knows that the woman is not consenting, or is reckless in that respect. Putting those two separate offences in one clause shows, as much in the Bill does, that this legislation has been drafted by civil servants with, one regrets to say, little experience of how courts work and limited knowledge of what actually happens within them. They cannot have consulted the judges on this change—or, if they have, the advice of those judges has been rejected.

One cannot have a single offence with two alternative states of mind—incompatible mental elements—as in subsections (2) and (3). I entreat the Minister simply to read page 103 of the current edition of Smith and Hogan and to study what is said there about that suggestion. How can a defendant plead to a count that contains alternatives, as set out in subsections (2) and (3)? How can a judge sentence when he has two alternatives before him, on either of

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which the jury might convict? As the noble Lord, Lord Thomas, I am sure, will tell us, a count with alternatives of this kind would be struck out as being bad for duplicity. If we are to have this new-fangled offence of rape by negligence, please may we have it in a separate section with a lesser maximum sentence? That would make sense, and might at least result in a few extra convictions: the present version as set out in subsection (3), and the alternative proposed by the noble Lord, Lord Gresford, will not.

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