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Lord Falconer of Thoroton: My Lords, the noble and learned Lord, Lord Lloyd of Berwick, is correct that the debates were very fully canvassed on the previous occasion when I made clear that that which had weighed with the Government in this respect was the very persuasive evidence submitted to the Sexual Offences Review by victims and victim support groups. From the perspective of victims—I fully accept that the noble Lord, Lord Campbell, and the noble and learned Lord, Lord Lloyd, do not dispute any of this—forced penile penetration of the mouth can be just as horrible, demeaning and traumatising as other forms of forced penile penetration and is equally, if not more, psychologically harmful in certain cases than vaginal and anal rape.

As the evidence given to the inquiry revealed, it is not unusual for women and children who have been violated in this way to develop long-term difficulties in eating and drinking. They may also have difficulties in visiting the dentist, leading to poor health care. I appreciate that including forced oral penetration within the scope of Clauses 3 and 4 recognises the serious nature of this particular form of offending behaviour and also provides for a maximum life sentence. I listened, too, to the arguments that perhaps the public and, in particular, juries might not take the view that it is rape.

Rape is already clearly understood by everyone to be an offence of non-consensual penile penetration committed by men on women and on men. Juries have

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had no difficulty in accepting past changes to legislation that broadened the scope to cover both rape within marriage and anal penetration of one male by another. Once it is made clear in statute that the offence of rape includes forced oral penetration, there is no reason to believe that juries will have any difficulty with this change either.

Penile penetration is of a particularly personal kind. It carries risks of disease transmission and I believe that it should be treated separately from other penetrative assaults. In our view, it makes good sense for all forms of non-consensual penile penetration to be grouped together within the offences of rape. Broadening the scope of the rape offence in this way also ensures that legislation properly reflects the seriousness of the offence of forced oral penetration and its effects on the victim. For all the reasons given, we object to the amendments advanced.

Lord Campbell of Alloway: My Lords, I cannot say that I am exactly grateful to the noble and learned Lord for his response, but I am grateful to noble Lords who have spoken. Although there is a real temptation to take the opinion of the House to clear the deck of this point, which crosses the point of difficulty to which I referred in regard to the amendment of the noble Lord, Lord Thomas, I believe that it would be wrong to take the opinion of a "thin" House. I also believe that it would be wrong to return to the matter on Third Reading because I do not think, quite contrary to the other matter being left over to Third Reading, that this is really a Third Reading point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 4 to 8 not moved.]

Baroness Noakes moved Amendment No. 9:

    Page 1, line 18, leave out subsection (4).

The noble Baroness said: My Lords, in moving Amendment No. 9, I wish to speak also to the amendments with which it is grouped.

The effect of these amendments is to remove the rebuttable presumptions about absence of belief in consent in Clause 77 and the conclusive presumptions about consent in Clause 78.

I shall not rehearse the detailed arguments on which we spent well over an hour in Committee or go over the ground that we covered earlier in the second group of amendments when the noble Lord, Lord Thomas of Gresford, spoke powerfully about the effect on the presumption of innocence. I shall confine my remarks to three matters.

First, the rebuttable presumptions are at one level a statement of the obvious. To take the circumstances in subsection (2)(a) of Clause 77, if the prosecution proves that the defendant used violence against the complainant and knew that, why do we need a rebuttable presumption of lack of belief in consent? To use the formulation in the Government's latest version of Clause 1(3), the defendant who has used the violence could reasonably be expected to doubt whether the complainant consented. That is why he used the

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violence. So what is added by a rebuttable presumption? Are the Government saying that juries are so perverse that they cannot work out what is or is not reasonable when violence is used? In Committee several noble Lords actually thought that the rebuttable presumptions would make the matter even more confusing for the jury.

Secondly, the list of rebuttable presumptions is too narrow. The Government said in their White Paper Protecting the Public that the definitive list of rebuttable presumptions would send a clear signal of the circumstances in which sexual activity is likely to be wrong. However, that list excludes some important circumstances, including the threat of future physical or economic harm. If a defendant says to a complainant, "You will lose your job if you do not have sex with me", why is there no rebuttable presumption that says that the defendant did not believe in consent? If the threat is made, surely that goes to the heart of belief in consent. That is another area of confusion for juries.

Thirdly, I cannot accept that the conclusive presumptions in Clause 78 are anything but a route to injustice. Conclusive presumptions leave no safety valve for the facts of a particular case. If we cannot trust the jury to reach the right result on the basis of the facts before it, we have a problem. The conclusive presumptions would have the effect of telling juries to reach a particular conclusion. One could end up with a perverse result in certain circumstances. I do not believe that justice and fairness are served by conclusive presumptions. For those reasons, and for the reasons mentioned earlier, I believe that the Bill would be a better Bill without Clauses 77 and 78. I beg to move.

Lord Thomas of Gresford: My Lords, I do not propose to repeat everything that I said in relation to the earlier group of amendments. I simply add that it is my view—I do not claim infallibility or even particular expertise in this area—that the provisions we are discussing would be struck down in the courts as being incompatible with Article 6(2). I have given the reasons for that. If the Government wish to proceed with the provisions, I am sure that the first time that they come before a court there will be an appeal which may be taken all the way to this House.

Lord Campbell of Alloway: My Lords, on the assumption that the House is moving towards some form of reasonable test and removing the extant law which derives from Morgan, I still take the point that Clauses 77 and 78 as they stand are not acceptable and that serious consideration should be given to accepting Amendments Nos. 175 and 178 in lieu tabled by the noble Lord, Lord Thomas of Gresford. If I have the matter right—I hope that I shall be corrected if I have not—the noble and learned Lord, Lord Falconer of Thoroton, will consult on the position with a view to

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seeing whether some accommodation may be made. If that is right, I welcome it. One could reserve one's position until Third Reading. If, however—

Lord Falconer of Thoroton: My Lords, I am sorry to give the noble Lord bad news. He will not be able to reserve his position. I indicated clearly that we would discuss the question of reasonableness and I did not move my amendment as a result. However, I am afraid that I gave no such assurance in relation to the rebuttable presumptions. I do not want the noble Lord to be under any illusions that he should keep his powder dry.

Lord Campbell of Alloway: My Lords, I am very much obliged. If there were a Division, I should have to support the noble Lord, Lord Thomas of Gresford. I take the view that Clauses 77 and 78 as they stand are not acceptable.

Lord Falconer of Thoroton: My Lords, there are in effect three points with which I should deal. First, I refer to the point raised by the noble Baroness, Lady Noakes, that one should not have rebuttable presumptions at all. With respect we disagree with that proposition. We believe that in many cases the rebuttable presumption will in effect reflect the way in which a jury would address the issue. We also believe that having the rebuttable presumption, without any unfairness to the defendant, sends the clearest possible signal of the way in which the law deals with such issues.

I give a further example to that which I gave in answer to the points raised by the noble Lord, Lord Thomas of Gresford, today. I refer to people suffering from a very severe physical disability where there has not been consent and where there has been an inability to communicate. That is referred to in one of the examples relating to the rebuttable presumption. We think it right in those circumstances that the defendant should satisfy the jury on the balance of probabilities—where there was no consent and the victim could not communicate—of the basis of his belief that the victim consented. No other specific protection has been given. We think it right that there should be such protection. We think that there is a place for these rebuttable presumptions. They certainly do not lead to any injustice.

Secondly, I hope that the noble Baroness, Lady Noakes, will forgive my saying that she changed her position completely. Having said that there should not be any rebuttable presumptions of the kind we are discussing, she then said that there were not enough.

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