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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?
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 placesaid 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.
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.
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 Commissionafter an exhaustive and lengthy inquiryrecommended 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.
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 acquitbut 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:
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 correctI have no reason to doubt itis 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
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.
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.
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 liabilityin other words, it would be enough to prove that the woman is not consentingor 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 creationit is nothing short of a creationof 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 negligencenot taking steps which could reasonably be expected in all the circumstancesas 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 changeor, if they have, the advice of those judges has been rejected.
One cannot have a single offence with two alternative states of mindincompatible mental elementsas 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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