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Lord Thomas of Gresford: My Lords, it may perhaps be more appropriate for those who have had the argument to state our position. I do not know whether to say we were entering the broad sunlit uplands or whether I was more reminded of the Pastoral Symphony. We have had the peasant dancing and the thunderstorms and now we have come to the broad theme of the final movement in which the Minister is now playing her part. I am glad to say that they are playing my tune, so we on these Benches fully support the amendments.

Baroness Noakes: My Lords, I welcome the noble Baroness, Lady Scotland, to our deliberations at this late stage of the Bill. She is most welcome. I thank her for introducing the amendments in the way that she did. These amendments typify the constructive approach that all parties have taken throughout the passage of the Bill.

While I welcome the noble Baroness to our proceedings, I hope that she will not take it the wrong way if I say that we miss the noble and learned Lord the Lord Chancellor today. Both he and his excellent team of officials at the Home Office have won the respect of these Benches for the open-minded way in which the Bill has been tackled. We believe that the Bill will leave this House a very much better Bill than when it arrived. I wish to place on record the appreciation of these Benches for the work that the noble and learned Lord the Lord Chancellor did to achieve that.

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I turn to the amendments. From the outset we on these Benches supported the search for a reasonableness formula that is capable of being workable and effective. We believe that the formulation set out in Amendment No. 1 achieves that.

At various stages of the Bill I raised with the Government what sort of reasonableness they intended and I tabled amendments to seek to ensure that the characteristics of the defendant, such as extreme youth or mental incapacity, would be taken into account in determining reasonableness. At Report stage the noble and learned Lord the Lord Chancellor said that the judge and jury could be relied upon to identify the characteristics that should be taken into account.

I was, however, concerned when the noble and learned Lord, Lord Cooke of Thorndon, described the position in New Zealand. The High Court there has held—in connection with the reasonableness test which it has had for some time—that intellectual impairment should be disregarded. My simple question to the Minister is this: do the Government intend that the Bill, with the amendments that we are discussing, will require judges and juries to take into account, in the appropriate circumstances, factors such as intellectual impairment and extreme youth? Or do the Government believe that, as in New Zealand, such factors will have to be disregarded?

I turn to the presumptions in Clauses 76 and 77. We welcome the way in which the rebuttable presumptions in Clause 76 now involve an evidential rather than a persuasive burden. However, we remain concerned that the list set out in subsection (2) may be taken as a definitive list of circumstances that are relevant. We remain concerned about the exclusion of threats of non-immediate violence, of economic harm and of other abuses of a relationship of power.

We have some concerns about the conclusive presumptions in Clause 77 as we believe that they may, in admittedly rare circumstances, work against justice. We accept the Government's position on Clauses 76 and 77 but I register those concerns.

Let me not end on a down note. We genuinely appreciate the way in which the Government approached these issues. I am pleased on behalf of these Benches to support the Government's amendments.

Lord Campbell of Alloway: My Lords, on this matter I want to say at the outset that I have confidence in the judiciary—the noble Baroness well knows that—and I have every confidence in juries. She also knows that. I have every confidence in the presumption of innocence, and I expect that she will accept that. But I have no confidence whatever in what has been produced by the Front Benches of the three political parties as regards Clause 77.

Before I come to that—it is the nub of this debate, I think—I want to say that the partially objective/subjective approach on Amendment No. 6 on Report

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would have been supported if it had been tabled at Third Reading. I support Amendment No. 1 today and the sister Amendments Nos. 3, 4 and 5, which in effect achieve a like result. But I have one question on which I seek confirmation: is the intellectual disability of the accused taken account of in this formulation? It is not in New Zealand, which has another formulation. I am not sufficiently expert to know whether it is or is not taken into account in the formulation that we are discussing. That is a matter of crucial importance which was first raised by my noble friend Lord Astor of Hever at Second Reading. It was taken up and expanded by, I believe, the noble Lord, Lord Carlile of Berriew, by other noble Lords and, to some extent, by myself, in Committee. If this is a truly partially objective/subjective approach, then I seek that confirmation. If there is any doubt about it, for avoidance of doubt could the clause be redrafted to take account of that when it reaches another place?

Now I turn to the nub of contention. Before I come to it, of course I accept Clause 77, as amended by Amendments Nos. 92 to 93, because that in effect reflects the all but inevitable position that would arise in any event on conviction. This will not be a very long dissertation but it is intended to be objective so that we may see the fine print and examine the consequences which I do not believe for a moment have been properly examined by the three noble Lords concerned in arriving at this deal.

It is accepted at the outset that but for Clause 76 the overall burden of proof remains on the Crown to establish beyond all reasonable doubt on a charge laid under Clause 1(3), as it will be amended, that the accused did not reasonably believe in all the circumstances that there was consent, taking account of any steps taken to ascertain whether there was consent. That is a straightforward simple question to be put to the jury. It is readily intelligible.

Now we come to Clause 76. As proposed to be amended, it imports Byzantine complexity, albeit as a start that the Crown must establish beyond all reasonable doubt that the accused knew of one or perhaps all of the circumstances in Clause 76(2). If he did not and the Crown cannot prove that, the clause does not apply. There starts the problem, for, on this highly complex provision, the question then arises whether sufficient evidence has been adduced to raise the issue of consent. That is no mere matter of evidential presumption. It is a determinative factor of conviction or acquittal, and serves as an aid to conviction. It involves the putative injustice of erroneous conviction.

On that crucial issue, there will inevitably be submissions from the Bar on whether sufficient evidence has been adduced to raise the issue. Those will have to be heard, as the noble Baroness will agree from her experience, in the absence of the jury but in open court. If the judge rules that insufficient evidence has been adduced, when he comes to sum up he has in due course to direct the jury that, in the words of the amendment,

    "the complainant is to be taken not to have consented".

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He also has to direct the jury that the accused is to be taken as not to have believed that there was consent.

That is the mandatory, statutory duty of the judge under the clause. It is nothing more or less than a direction to convict. Surely, sufficiency of evidence on a charge laid under Clause 1(3) should be governed by Clause 1(3), not by extraneous provisions that strain the test in favour of conviction. Above all, surely it is not a matter for the judge to give a direction in law—that is a matter for the jury. It is a traditional function of the jury. The judge's jurisdiction in that regard is always, as the noble Baroness knows better than I do, to deal with a defence submission that there is no case to answer. There is no question of a judge having by statute to sum up for a direction. That is what Amendment No. 87 will entail, and that is why I oppose it.

There is very little else to say; I am sorry that I have taken so long. Evidential presumptions such as these in such circumstances should not be introduced to defeat the presumption of innocence, the overall burden of proof on the Crown and the traditional functions of the jury. I recognise that the amendments have been accepted in good faith by the noble Baroness or her predecessor and the noble Lord, Lord Thomas of Gresford. No doubt there have been negotiations on which I congratulate all concerned on having moved the Government so far in other directions. However, as I said on Report, this is my sticking point.

For the reasons that I have given, I ask the House to look at the matter objectively, and to look at the fine print and the consequences, one of which will be that the rulings of the judge will be subject to appeals against conviction on which retrial might be ordered. We are opening up a totally novel avenue, to no good cause and for no good reason other than as part of a compromise on a good deal. This part of the deal is not good. There is no reason why Clause 1(3) should require the assistance of implementation by implementing provisions of such an order that do not ride consistently with it. I hope that that is objective; I hope that at least it is a question worthy of noble Lords' examination in due course.

There is nothing else to say on the group of 15 amendments, to which we have to stick. Effectively, I have covered most of them, especially the important ones. I accept Amendment No. 1 and its sister amendments. I accept Amendments Nos. 92 and 93 to amend Clause 77. I would prefer not to have to deal with Amendment No. 94 now, because it is consequential on other amendments, especially Amendment No. 91. With the leave of the House, I would like to deal with that later and, in view of what I have said, when the time comes I would like to move Amendment No. 2.

3.45 p.m.

Lord Cooke of Thorndon: My Lords, before the noble Baroness replies, I rise to sound a partly wistful but nevertheless supportive note. Previously in the House, I gave support in the light of the experience of New Zealand to the inclusion of some objective

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element in the defence of belief in consent when rape is charged. As the debate then developed, the House appeared to be in sympathy with that view. The then Minister tabled an amendment that would have made the criterion whether in all the circumstances, including any steps taken by person A to ascertain whether person B consents, A could reasonably be expected to doubt whether B consents.

In my respectful view, that was an inspired piece of drafting, focusing on what society could reasonably expect of the particular defendant, and harmonising with the decision of the majority of the Appellate Committee in the case of Morgan Smith on the cognate subject of provocation. Under that formulation, the jury would give the verdict on behalf of the community on what might be a difficult issue. I echo what the noble Baroness, Lady Noakes, said about the desirability of making it as clear as possible that the individual characteristics of the defendant—such as some degree of mental infirmity, properly proved—are to be taken into account. That was also echoed to some degree by the noble Lord, Lord Campbell of Alloway.

The formula tabled by the former Minister might well have made Clauses 76 and 77 unnecessary, thus simplifying the legislation while conveying the important and simple message that this sort of intrusion is not to occur without a green light. In the event, the Minister never moved that amendment; nor has it been possible to explore the question with him, as the birth labour of a revolution took over. However, I recognise that in the amendments now proposed by the noble Baroness, the Government have moved considerably, and that at times simplicity and economy of drafting may have to yield to political expediency in the light of group pressures. It may be that only a small minority of cases would have any different result if the formula tabled but not moved were enacted.

There may not be a great deal of practical difference between what the Government now propose and what was at one stage proposed. Bearing that in mind, together with the apparent concord between the Front Benches, I propose to attempt no obstruction while joining in the hope for some clarification as to the intention of the House and preferably of Parliament as a whole on the question of taking characteristics—all reasonably relevant characteristics—into account.

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