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29 Nov 2007 : Column 1329
FGM is supported by no holy book and by no religion, only by a custom whose origins are lost in the mists of time.
In ridding this country, if not the world, of this practice, we have a hard task ahead of us—a task for the Government, social services, the police, schools, hospitals and ordinary people who may be neighbours or friends of those perpetrators who are themselves often ignorant of the law and perceive themselves to be innocent of wrongdoing. I have spoken to women who have voluntarily taken on the task of telling other women in their community what the law is and what the penalties involve. This is essential because many speak no English and even in their own language lack terms for sexual organs and sexual practices that we, in ours, have come to take for granted. They are making some headway. One woman with whom I had a conversation told me that, by persuasion and an explanation of the law, she had prevented a neighbour from taking her five daughters home to Somalia for FGM.
Persuasion and enlightenment must continue, because it is inconceivable in a civilised society that women should continue, in the 21st century, to have their married lives made shameful and ugly and their childbearing an agony through damage intentionally carried out in their defenceless childhoods. The truly sad thing is that this damage is the result not of wanton cruelty or uncontrolled vengefulness, as rape is, but of a mistaken kindness and desire to secure a young girl’s happiness and the approbation of the society in which she lives.
1.20 pm
Lord Thomas of Gresford: My Lords, it must be heart-warming for the noble Baroness, Lady Gale, to note that this very important debate has ranged widely over issues such as pornography, criminalising the purchase of sex, trafficking, and genital mutilation. All those are very big subjects. I hope that your Lordships will forgive me if I do not pursue each and every one of them but focus instead on rape and the announcements made yesterday by the noble and learned Baroness the Attorney-General.
I concur wholeheartedly with the description of that crime given by the noble Lord, Lord Elystan-Morgan, in his brilliant speech. I am proud that I voted for him in 1964 when he was a Plaid Cymru candidate in my home town. I want to focus on the unacceptable rate of attrition of rape complaints which has led to low conviction rates. It is disappointing that that attrition has not improved with the passage of the Sexual Offences Act 2003. I declare an interest as a practising criminal advocate who has perhaps prosecuted more often than defended and sat on many rape trials.
There is a very serious problem to be addressed. Jurors who come blinking into the jury box will never have had any experience of a rape or child case. They find themselves plunged into an alien environment which is very unsettling. Many come with fixed views which the more enlightened among us may find unacceptable. These are the subliminal prejudices to
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Prejudices exist as much as, if not more, among women, as the noble Baroness, Lady Kennedy, conceded. Often they harshly criticise the behaviour of other women. The sort of comments that we hear in the courts include the following. “Partner rape is not really rape”. Provocative clothing: “What did she expect? What is a man supposed to do?”. Drunkenness: “What did she think she was doing getting into a state like that?”. Accepting an invitation to coffee at 3 am and consenting to being kissed: “What did she expect?”. “She must have consented; otherwise she would have been injured”. “Women are emotional and hysterical”. “If she didn’t shout and scream it can’t be rape”. “Why didn’t she tell her mum straight away?”. “Women are filled with malice towards their past lovers”. And so on. All these are subliminal prejudices. They are entrenched views. Many people with such views become jurors. It is important that we address this problem, but how do we deal with it?
No option should be entirely ruled out but experience tells me that the danger of stereotyping a victim’s response to rape should be addressed at the very beginning of the trial before the case is opened and before the complainant gives her evidence. This rules out comment by the prosecutor or directions by the judge in his summing-up towards the close of the trial—the noble Baroness, Lady Kennedy, suggested that this might be a way forward—by which time the jurors will already have made up their minds about the credibility of the complainant based on their prejudices. Those prejudices need to be countered from the outset. That is why there has been discussion about expert evidence being called in court on oath.
The introduction of an expert to give evidence in the course of a trial gives rise to what we call a satellite trial. Who is an expert for these purposes? It is not like a pathologist, a scientist specialising in DNA or a fingerprint expert, who look at something that has occurred in a case. Who do you call—a social anthropologist? I once called one to explain the habits and customs of the Dinka tribe in the Sudan. However, I do not think that we need to have one to tell a Swansea jury about the habits and customs of the people of Swansea.
Should a statistician be called? Noble Lords will remember the Sally Clark case, where the pathologist Sir Roy Meadow said that the chances of two children dying by chance were 73 million to one. In the appeal the Royal Statistical Society determined that the true figure was 200:1. So we should call experts in what—statistics? An expert’s evidence would obviously have to be tested by the defence. The reliability of his opinion and of the statistics he produced would be subject to challenge, and the defence would be entitled—as the Government’s consultation document issued last spring conceded—to call another expert in rebuttal. The conflict between experts would become inextricably mixed up with the real issue: was the complainant raped, or was there consensual intercourse? I am
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I favour the production of a standard video in the form of a neutral public information film which should be shown to juries at the very commencement of the trial and before the case is opened by the prosecution. The film would fully and fairly address prejudices and stereotypes and require jurors to approach the case they are about to hear with an open mind and not with the baggage that they have brought with them. In the interests of fairness such a film would obviously have to refer to the fact that false allegations of rape are sometimes made, an issue which the noble Lord, Lord Campbell-Savours, spoke about. The statistics show that about 12 per cent of complaints are not “crimed” by the police—that is, a fair proportion—because they have verifiable information that no crime took place. A significant number of false accusations arise for all sorts of reasons which I shall not go into at present.
If there was a standard and agreed production, a video would not give rise to controversy, and its contents could, where relevant, be referred to during the trial by the prosecution, the defence, and indeed by the judge. We should start by facing the jury with the prejudices that they might have. We should face them with that and tell them that they have to judge these cases with an open mind.
The noble Lord, Lord Campbell-Savours, referred to the broken-backed system of investigation and prosecution and mentioned New Zealand. He will recall, as may others, that I put forward the New Zealand model in the course of the Sexual Offences Bill but that it was rejected. One of the unintended consequences of that legislation was that the two Peers leading from the Liberal Democrat Front Bench got married; that is, myself and my noble friend Lady Walmsley.
The noble Baroness, Lady Gale, referred to variations in rape convictions in different police force areas, and the noble Baroness, Lady Gould, said that South Wales and Manchester had a better conviction rate. There is no substitute for the careful building up of a case. I am indebted to Judge Roger Dutton, who specialises in rape and sexual offences cases on the Wales and Chester circuit, for a whole series of practical recommendations. Unfortunately, the clock is against me. However, I should mention the need for the accurate recording of a complaint; the accurate recording of recent complaints from witnesses; the taking of quick action to obtain material for the purpose of scientific examination; and obtaining a proper video recording that is short and to the point and does not involve lengthy cross-examination of the victim by inadequate police officers. Young witnesses should be prepared for giving evidence. The first time that anyone openly doubts the word of the witness, it often comes as a serious shock and leads to tears, and the case is stopped. One problem with the Government’s proposal for having a video of the evidence in chief is that the first time that the witness is asked a question, she is being challenged on her account. I am not sure that that is the right way to go about things.
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We must deal with the issue of inexperienced prosecutors. In the old days, when Silks appeared on both sides and High Court judges tried rapes, cases were handled rather better than today. The Government suggest that pre-trial witness interviews should be introduced widely; I agree. The purpose of interviewing the complainant is to enable the prosecutor to assess the reliability of the evidence that they can give or to understand complex evidence. Provided that the purpose is strictly adhered to and an audio copy of the video is made available automatically to the defence as unused material, it is unobjectionable.
This is a big topic. I am sorry that I have gone over my limit. I end by again thanking the noble Baroness, Lady Gale, and emphasising the need for education—attacking those hidden prejudices and bringing about a change in attitude to the relationship between a man and a woman in our society.
1.31 pm
Lord Kingsland: My Lords, I too congratulate the noble Baroness, Lady Gale, on the persistent—indeed, tenacious—way in which she has stuck to her guns on these issues over the years. The House owes a great debt to her.
As your Lordships are all aware, the debate happily coincides with the Government’s response to their 2006 consultation on the offence of rape, to which I will turn in a minute. However, it is vital to emphasise, as many of your Lordships have done, that rape is just one example—although a particularly dreadful one—of our more general and mounting alarm over the growth of violence against women in our society, of which domestic violence is a significant factor. Indeed—again, as many of your Lordships pointed out—a high percentage of rapes are inflicted on victims who are in some kind of relationship with the perpetrator, often a very close one.
We cannot escape the conclusion that much of that growth in violence is explained by changes in our society’s culture, often exhibited on television and in films. The media frequently portray young women, principally or sometimes exclusively, as sex objects. This reflects a deep cultural malaise to which there is no short-term solution. Perhaps our best chance of success is in our schools, as the noble Baronesses, Lady Gale and Lady Gould, suggested. They emphasised that respect for women should be a crucial ingredient in children’s education. Indeed, my right honourable friend the leader of the Opposition, David Cameron, said on 12 November that we would never make progress in this area until we were prepared to teach values in school.
Much has been made of the statistics for rape. It was pointed out by the noble Lord, Lord Elystan-Morgan, among others, that whereas there is a low rate of conviction in the context of reported offences, nevertheless, if you put convicted perpetrators in the context of the number of cases brought to trial, we are talking about a respectable success rate. I have seen different statistics; some have been as high as 50 per cent, some as low as the early 40s. These are by no means unfavourable in comparison to murder, for example.
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Rape cases present particular evidential difficulties, as a number of your Lordships have explained, because there are usually no witnesses to the offence and because there is often no forensic evidence that is admissible in court. As noble Lords know, over the past decade there have been a number of substantial changes in our evidential rules. I shall briefly remind the House of what they are. There has been a change in the definition of consent in statutory law. An “honest belief” that consent was available is now replaced by the expression,
Parliament has widened the circumstances in which hearsay can be admissible. It has limited the circumstances in which a victim’s previous sexual history is admissible in court. It has expanded the circumstances in which evidence of the defendant’s bad character is admissible in court, and now we have experiments in pre-trial interviews with witnesses by counsel. Those have made some changes to the conviction statistics, but not dramatic ones.
The Government have come forward with a number of suggestions to which many of your Lordships have referred; I should like briefly to touch on them. I hope that the noble and learned Baroness will not think that my remarks are conclusive of our views, because we must wait to see what proposals the Government come up with. I shall, telegraphically, indicate how we are thinking.
First, I respectfully say to the noble and learned Baroness that we think that the Government are right to leave the issue of capacity to the courts. There has been a recent case that I am sure that she considers helpful. Society would be best served by the development of the concept in the courts rather than trying to set down a rigorous rule in statute.
Secondly, one issue that we have debated today is that of the victim who is reluctant to talk about the event at an early stage, either to her family or to her friends, and equally does not go to the police until a rather late stage. The Government propose that hearsay evidence, at any stage between the act and the prosecution, in principle, ought to be admissible in the proceeding. I assume that the noble and learned Baroness will contemplate adding to that proposal the normal limitation that a judge may in his discretion decide that a particular item of hearsay evidence is not admissible, even in this context.
The third question is that of video-recorded evidence for adults. Again, we are not in principle against that, but the noble and learned Baroness will agree when I say that here, above all, the devil is in the detail. For example, we do not know whether additional questions in chief may be put by the prosecution to the alleged victim in court, or whether the only evidence in chief will be that on video. We do not know when the video recording will be made. Will it be at the time of the alleged victim’s first interview with the police, or later? If it comes later, will that be after the CPS has been involved? What role will the CPS have in the preparation of a recording? I am asking these questions because the Government will have to address them before they come up with a statutory provision.
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On the final matter, which has received the most attention in your Lordships’ House, to introduce what has been referred to as general expert material to dispel myths about rape victims’ behaviour, again I am neutral on that until I see what the Government have proposed. I very much take the point made by the noble Lord, Lord Thomas of Gresford, about the subliminal factors that might influence the way in which a jury might approach a particular case, which would prejudice it in principle against a conviction. Difficult though it is, I can see circumstances when, if the right sort of document is produced, it could play a constructive role. It would, however, have to reflect prejudices or otherwise against both parties in the litigation.
These proposals will undoubtedly increase the conviction rate to, I suspect, only a modest degree. The real difficulty is the period between the reporting of an offence and the conviction. That is where the failure of the system lies. I shall be most interested to hear what the noble and learned Baroness has to say about that in her final remarks.
Rape crisis support centres have been referred to by a number of noble Lords. I know that noble Lords will agree that they are proving vital in helping women to overcome what has happened to them. But there are far too few of them; and those that exist are undermined by short-term, usually annual, funding, with funding often having to be decided half way through the financial year. Many of them face the constant threat of imminent closure. We need more of these institutions, and we need to give them the support that they deserve. Among other items in his speech on 12 November, my right honourable friend David Cameron, the leader of the Opposition, announced that a Conservative Government, when elected, will replace annual funding decisions with a three-year funding cycle.
1.42 pm
The Attorney-General (Baroness Scotland of Asthal): My Lords, I add my voice to all those who have commended my noble friend Lady Gale for instigating this timely and really excellent debate on this most important of issues. I commend all sides of the House for taking up arms against this monstrous sea of troubles in an attempt to bring it to an end. This debate has done something quite extraordinary, which I hope that all sides of this House will have noticed. Through the debate, my noble friend has managed to get assent and consent from all the lawyers who sit on each of the Benches in this House. I do not know whether that is a first, but it certainly feels like one.
I agree with the way in which the noble Lord, Lord Elystan-Morgan, described the offence of rape. It is truly the vilest of offences. As my noble friend Lady Kingsmill said, it is a stain on our country and it is something that we absolutely must address. I also take the opportunity to warmly welcome what was said by the noble Lord, Lord Kingsland. We know of his commitment, but I celebrate the fact that his right honourable friend in the other place has finally made his party join the party. It is very warming indeed at last to hear from him the voice of the Conservative
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Sexual violence is one of the most feared and damaging crimes in our society. It is more prevalent than most people think, and I was glad to hear that echoed in the comments that were made. Five per cent of women and 0.4 per cent of men have been raped as adults, and it devastates the lives of victims, who are often some of the most vulnerable people in our society. The harm caused can be severe and long-lasting, affecting the sexual, physical and mental health of the victim.
I thank those in the House who have commended me for the efforts that I have made, but as I look around the Chamber I see many people who have been on this journey with me. Over the past 30 years, my noble friend Lady Kennedy of The Shaws and others on all Benches, including all those who have spoken in this debate, I count as journeymen on that path. As my noble friend Lady Kennedy of The Shaws said, it takes enormous courage for a victim of sexual violence to report the crime, and they deserve to be treated with dignity and respect and to see justice done. It is right that the noble Lord, Lord Kingsland, said that the period between making the statement and the matter being brought to court is vital. He is also right to say that the details will have to be very carefully examined.
That is why the new public service agreements will for the first time make it clear that tackling serious sexual offences must be a priority across England and Wales, and it is why we have worked in consultation with our stakeholders to develop a cross-government action plan aimed at preventing sexual violence, increasing access to support for victims and improving the way in which cases are investigated and prosecuted. My noble friend Lady Gould was right to say that this vehicle could be used and should be successfully used to bring about the change that we all want to see.
I would like to take the objectives in turn and explain some of the significant progress that has already been made, as well as the work that we will be taking forward in the future. All noble Lords who have identified prevention as being of critical importance are right. I was pleased to hear that alluded to by my noble friends Lady Gale and Lady Kennedy of The Shaws, the noble Lord, Lord Elystan-Morgan, and many others. Ultimately, it must be our aim to prevent sexual violence occurring. We must challenge the culture which tolerates sexual violence, we must support those at risk of victimisation or, in domestic cases, of revictimisation and we must manage the risk posed by those who have committed a sexual offence. My noble friend Lady Howells highlighted and gave us some graphic examples of why that must be so.
A survey published by Amnesty International in 2005 revealed that around a third of people in the United Kingdom believe that a woman is partially or totally responsible for being raped if she has been flirting, drinking or has worn revealing clothing.
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I absolutely agree with all of those who say that addressing those attitudes must start in the education system. All secondary schools are required to deliver sex and relationship education, and by the end of 2009 we expect all schools to qualify as “healthy schools”. That means that specific standards must be met for personal, social and health education, including on sex and relationships and emotional health and well-being. We must challenge also the behaviour of the minority of men who think that it is okay to have sex without consent. Last year the Government ran a hard-hitting and effective campaign stressing the importance of active consent to sex and earlier this week my colleague Vernon Coaker helped to launch the Men’s Coalition, a group of leading men’s organisations which aims to provide a male voice to challenge the culture that colludes with all forms of violence. We will continue to look at what more can be done to support this work.
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